II. “Particularly Controversial or Unpopular Entities”

“It is easy to defend freedom of speech when the message is something many people find at least reasonable. But the defense of freedom of speech is most critical when the message is one most people find repulsive. That was true when the Nazis marched in Skokie. It remains true today.”

ACLU Statement, August 2000

Now that I’ve gone through a less-than-concise legal history of the First Amendment in the 20th Century, let’s talk about an organization that has made its own impact on the popular understanding of free speech and assembly in the United States: the American Civil Liberties Union, or ACLU. The ACLU was originally founded in 1920 to advocate for the free speech rights of Americans, primarily anti-war agitators like those convicted in the Schenck decision. Over the decades since, the organization has continued to focus on First Amendment rights, but has expanded to protecting other civil liberties, including the Fourteenth Amendment’s ‘equal protection’, as well as advocating for unionization, racial justice, and gender equality, among other causes. Regardless of the ACLU’s expansion to a 1.2-million-member organization, the group is still largely focused on First Amendment law, and often defends “particularly controversial or unpopular entities such as the Ku Klux Klan, the Nation of Islam, and the National Socialist Party of America.” As I discussed earlier, the organization has come under fire recently for defending some of these “unpopular entities”, especially white supremacist organizations, yet the history of the ACLU is riddled with incidents like these which show that defending the First Amendment rights of these groups is paramount to ensuring that the First Amendment rights of all Americans are protected from aggressive State interference.

How the Skokie Case Represents the ACLU at its Finest

There are many cases I could look back to as a way to anecdotally describe the ACLU’s fundamental mission of defending the free speech and assembly rights of all Americans, regardless of viewpoint, but the one I have chosen is one with which many people may be familiar. It is a case that has been lampooned in the movie Blues Brothers (“I hate Illinois Nazis”) and has had massive cultural relevance since its appearance before and decision by the Supreme Court in 1977. The case is National Socialist Party v. Skokie, where the ‘National Socialist Party’ are American Nazis, and Skokie is a town in Illinois, just outside of Chicago. This case has gained great fame and renown largely because it created such a rift in the social fabric of the time and within the ACLU itself, but also because it affirmed the fundamental First Amendment rights of a group that is universally despised by Americans of all ages, races, religions, and backgrounds: actual, literal Nazis. We often throw around the term ‘Nazi’ today as a catch-all for ‘fascist’-leaning groups, far-right organizations, and those we just don’t like, but the ‘Nazis’ in the Skokie case were truly National Socialist Party Nazis, and followed the doctrines of Adolf Hitler. They planned to march directly through Skokie, a town which at the time was heavily populated with Jewish Holocaust survivors and their immediate descendants, all while dressed to the nines in their Nazi-inspired uniforms and carrying Swastika flags; by all measures a far more incendiary action in 1977 (less than 25 years after the end of the actual Third Reich!) than the alt-right rallies staged across the country today.

Skokie city managers obviously did not want this march to go on as planned, and passed laws which basically disallowed the rally (banning Swastika displays, military uniforms, etc.). The Nazis proceeded to sue the city, and asked the ACLU to take on their case. It was not an easy decision, but the free speech and assembly merits of the Nazis’ case outweighed any other considerations, and the organization took it on. The lead lawyer for the ACLU on the case, David Goldberger, is actually Jewish himself, but has contended to this day that he is “proud to have been counsel in the Skokie case,” despite the fact that his clients likely would have gladly seen him kicked out of the country (or worse) for his heritage. The ACLU argued the case before the Supreme Court, saying that the Skokie city laws barring the Nazis from marching were in violation of the First Amendment of the Constitution, and engaged in viewpoint discrimination, which is not allowed under law. The Supreme Court, by a slim majority, agreed with the ACLU’s arguments, and affirmed the Nazis’ right to march through Skokie. By that time, however, the opposition to the march had gathered serious steam, as had the backlash to the ACLU’s defense of the marchers, and the planned event was moved to Chicago (in the end, only a small group showed up for the march). As a result of their principled defense of American civil liberties, no matter the viewpoint, the ACLU lost over 30,000 dues-paying members, and experienced a significant loss of fundraising revenues. The organization had a period ‘in the wilderness’ before regaining its previous strength and recovering to continue protecting the rights of Americans everywhere.

Skokie Nazis.jpg
National Socialist Party in Skokie in 1977    Image Credit: Communities Digital News

The Skokie case can be seen as somewhat analogous to the controversy which is currently embroiling the ACLU over its involvement in the white nationalist rally in Charlottesville in August, as in both cases the organization chose to put its principal mission of protection of civil liberties above all else, including the feelings and potential safety concerns of ethnic or religious minority groups. I find this approach to be both admirable and entirely consistent with both the ACLU’s prior history as well as the legal positions set out by the Supreme Court in both Brandenburg and Justice Brandeis’s dissent in Whitney.

According to the ACLU itself, the organization’s mission is “realizing the promise of the Bill of Rights for all and expanding the reach of its guarantees to new areas.” The historical actions of the ACLU, particularly in its infancy, back this mission statement up: the ACLU defended the rights of anti-war and trade unionist activists to freely associate and organize (1920); the group aided in the defense of John Scopes when he was charged for the teaching of evolution in Tennessee (1925); the ACLU fought against the censoring of the James Joyce novel Ulysses in the US (1933); and the organization struck back on federally-mandated ‘loyalty oaths’ for public employees in the height of the Cold War (1950s). These actions, along with other better-known ones (Japanese internment, school desegregation, Civil Rights Movement), have cemented the ACLU’s reputation as an organization dedicated to protecting the civil liberties of all Americans, by protecting the rights of those who are considered by many to be persona non- grata in society. The organization continues that mission today by fighting for the rights of minorities in all civil liberties fields, whether that be LGBT Americans in marriage equality, African-Americans in the criminal justice system, or unauthorized immigrants and their families in the immigration court system.

It is clear that most at the ACLU, including the organization’s executive director, believe that defending the right of even the most abhorrent speakers to speak freely is paramount to ensuring that all Americans are able to exercise those same fundamental rights. If widely condemned people like neo-Nazis can freely speak and assemble, so can mainstream groups like Black Lives Matter, and organizations like the Women’s March. I concur with this assessment, and I believe that the ACLU is firmly within the bounds of settled case law as detailed in Part I of this series. As I discussed earlier, the ACLU is generally dedicated to taking on the cases of minority groups in civil liberties areas, as aiding these groups will end up preserving rights for majority groups as well. I contend that, today, white supremacists are minorities when it comes to being able to freely associate, assemble, and speak. They may not be minorities in other areas of society or life interactions (and indeed may be privileged in some of these settings), but when it comes to being able to freely express their often-despicable views, I believe the evidence shows that they are what I will call ‘free speech’ or ‘first amendment’ minorities.

White Supremacists as First Amendment ‘Minorities’

Here’s a multi-part question to ponder while reading the next few paragraphs laying out the case for speech and assembly ‘minority’ status for white supremacists: When was the last time you, in person, saw or met someone who outwardly, directly, and clearly advocated a doctrine of white supremacy or a whites-only ethnostate? And if you have seen someone like that, was that person accepted by those around him or immediately ostracized and demeaned? (As an aside, I am talking about directly expressed white supremacy, not ‘structural’ or ‘systemic’ white supremacy. Basically, the attitude you would associate with someone on the alt-right, hard right, or Ku Klux Klan. Now back to your regularly scheduled programming.)

Richard Spencer at University of Florida. (Only 30 of his supporters showed up.)    Image Credit: Yahoo

Many people have heard of alt-right leader and all-around terrible person Richard Spencer (unfortunately), mainly due to his association with controversial events he has staged, or attempted to stage, around the country. He is known not because he has a large group of dedicated followers (he doesn’t) or because he has policy ideas that have been accepted into government (they haven’t). He is mainly known due to the massive outrage and protests he has caused with his speeches wherever he has been, and the canceled speeches, due to anticipated violence, that have only enhanced his public profile and made him a free speech martyr among some on the right. The public universities and cities that have canceled his speeches or refused to issue him permits due to the ‘potential for violence’ are treading a fine line when it comes to constitutional protections, as we know based on the Brandenburg decision. As an example, the response by the state of Florida to Mr. Spencer’s speech at the state’s flagship university in Gainesville was an absurd overreaction; the governor declared a literal state of emergency, more police than at “any time in the university’s history” would be deployed on campus, and the state decided to shell out over $600,000 in additional security costs to be borne by the taxpayer. All of this for a man who can marshal only dozens of supporters at a time, and whose adherents are dwarfed in number by thousands of protesters who appear wherever Spencer is allowed to speak. And the Florida event is one of the only times Mr. Spencer was actually granted a permit to speak; he was far more often denied than accepted. Public universities generally do not reject speaking requests, as that is quite sketchy legally, but they are more than willing to step squarely into that grey area when it comes to denying a prominent white supremacist the right to speak on public land, usually based on specious grounds like ‘preventing possible violence’. If this were a prominent Black Lives Matter activist instead, for example, and the rationales given were the same, this would be headline news and the backlash against these universities would be swift and severe. So why not in this case? Could it be because white supremacists happen to be ‘minorities’ when it comes to freedom of speech and assembly?

Another significant factor in the argument for white supremacists as free speech and assembly ‘minorities’ can be found in the ‘no platform’ movement and the private sector’s response to it, particularly when it comes to what most of us consider the modern bastion of free speech and expression: the Internet. In general, the ‘no platforming’ movement is “the practice of preventing someone – either through policy or through protest – from spreading their ideas through a particular event or website,” yet it has expanded from the specific (particular events, sites, etc.) to the general (all events, entire Internet, real life jobs, etc.) when it comes to the American white supremacy/nationalist movement. After the disastrous outcome of the ‘Unite the Right’ rally in Charlottesville, Virginia this past August that I touched on in the introduction, the push to ‘no platform’ the alt-right, white nationalists, and white supremacist movements gained serious momentum among not only liberal activists, but significant segments of the public at-large. As pressure mounted from these groups, tech companies in particular began to feel the heat and joined in the ‘no platforming’ fever. Internet and technology companies as diverse as Apple, Discord (a group messaging and chat service), Spotify, Facebook, PayPal, SquareSpace, GoFundMe, and (I kid you not) OkCupid all banned or shut down profiles or pages of those associated with white nationalists or the alt-right.

The specific example of Internet ‘no platforming’ that I find most compelling and disturbing, especially as someone who has a good working knowledge of the technology industry, is of the explicitly neo-Nazi website, the Daily Stormer. Before I get into what I find concerning about this case, let me state for the record that the Daily Stormer is a horrific, repulsive site that is run and populated by the dregs of our society; the site’s name is based on the Nazi publication Der Stürmer, which was the party’s newspaper of record from 1923 – 1945 and which should honestly tell you all you need to know about the website’s content. Now, with that background, I want to tell you that the Daily Stormer website has existed online since at least 2013, and was never pulled offline for its hateful, violent, racist content prior to the ‘no platforming’ drive after the Charlottesville incident. The site is hosted on its own servers, but its domain name registration for dailystormer.com (now defunct) was with prominent registrar GoDaddy. Until the ‘no platforming’ push, GoDaddy seemingly had no problem maintaining its service provision to the Daily Stormer, which consisted of very little, as domain registration services are minimal by their very nature.

Once GoDaddy received public pressure, however, it folded and booted Daily Stormer from its registered domain address. After that, the site went to Google for the same minimal service, but it was quickly kicked off of that service once Google was pressured similarly. After these dismissals, Daily Stormer sought a new registrar in Russia, but ran into trouble again when website protection service CloudFlare, which offers services to protect websites from hacking attacks, dropped the site’s paid protection. Previously, CloudFlare had a policy that approached free speech absolutism, and the company still protects sites which many would find quite execrable, yet it altered its long-held position to punish the Daily Stormer for its views. CloudFlare’s actions opened the Daily Stormer to massive Distributed Denial of Service (DDoS) attacks, where hackers use coordinated actions to overwhelm a site’s servers and crash it, and basically rendered the site inoperable. After those actions, the Russian registrar which the Daily Stormer moved to also dropped the site, citing Russia’s anti-hate speech laws. At this time, the site is operating on the ‘dark web’, and occasionally pops up with a blog version of itself here and there on the accessible web.

Marine Le Pen addresses the Cambridge Union
‘No Platform’ demonstrators.     Image Credit: Spiked

Of course, these private enterprises have every right to freely associate their businesses with those who represent their values, but the trend of responding to public pressure and not to their own moral imperatives (they did host these pages for quite some time before Charlottesville without issue) is troubling to me, especially as most of these companies’ businesses are entirely unrelated to the hateful expression that they apparently find so problematic. I especially find the actions by GoDaddy, Google, and CloudFlare to be extremely disturbing, as those services are advertised as explicitly neutral to content posted on the sites they register or protect, and denial of registration or protection is, in the words of a Georgia Tech public policy professor, “essentially a de facto form of hate-speech regulation.” I agree with the professor, as by denying these basic services (domain registration is the most basic of online services, and is essentially required for online publishing) the companies are exercising a veto over the speech and association of those who happen to have views which are despised by American society. The Internet (by which I mean the general Internet, not closed platforms like Facebook, Twitter, etc.) is considered by most to be the logical technological extension of our common public space, and by denying a group, an individual, or indeed, an entire ideology, the right to join that common space should be seen as being just as serious a violation as it would be if those groups, individuals, or ideologies were denied public space in reality.

This ‘no platforming’ isn’t only going on online, it is moving into the realm of reality as well. After the Charlottesville rally, a Twitter account called ‘Yes, You’re Racist’ began to solicit photos of those who participated in or were seen at the white supremacist march that weekend, so the user could post the photos and attempt to ‘out’ those who attended the rally. The account received many photos and multiple individuals who were at the march were identified. Several of these people were terminated from their jobs, placed on leave by their employers, or publicly disowned by their families, all for exercising their First Amendment rights under the Constitution. Most of the terminations are perfectly legal under US employment law, which provides little in the way of protection for workers. The efforts have generally been loudly applauded by the left, and supported by the mainstream media as well. Yet many, including me, find this behavior to be very troubling. David Clinton Wills, a professor at New York University, likened the use of social media by anti-racist advocates as akin to how the Third Reich encouraged its citizens to name others as ‘enemies of the state’. He says, “When [calling out dissent] became a power that your neighbor could execute or your neighbor could use against other people, the power became unchecked,” and urged activists to think carefully before hitting send on a message calling out another by name. Not only does this type of behavior recall Nazi Germany, it recalls a dark time in our own past: the Jim Crow era and the fight for Civil Rights. A common strategy by white employers in the South, including the government, was to terminate black employees who advocated for their own civil rights. Famed education advocate Septima Poinsette Clark was fired from her job as a teacher in 1957 simply for being a member of the NAACP. Savannah, Georgia NAACP leader W.W. Law was fired from his US Postal Service job for his Civil Rights activism and had to be personally reinstated by President Kennedy himself. These and countless other examples from the Civil Rights era of unpopular opinions being punished through job loss show that those who are retaliated against for their beliefs and positions are most likely ‘free speech’ minorities in their specific era. If we are rightly aghast at these despicable tactics used against those with whom we agree ideologically, we should also be equally disgusted when those same tactics are used against those with whom we disagree, even if those people are seemingly the worst members of our community.

Now, with all of these pertinent and telling examples of discrimination against the free speech, assembly, and association rights of white supremacists, white nationalists, and the alt-right, it should be clear that those in these movements are the ‘free speech’ minorities of our time. We need not agree with their positions, and I certainly don’t, but as Americans we do need to stand up for their right to publicly express their ideas in the arena of speech and through assembly and association. The ACLU has historically been the non-governmental organization that has been at the vanguard of defending these rights for marginalized groups, whether they are incredibly unpopular or not. Movements like ‘no platforming’ only serve to drive these unpopular and hateful ideologies underground, where they fester and continue to grow; in no way does removing a public platform for ideas eliminate the ideas themselves. In the final section of this series, I will argue why, in general, we as a society should encourage the expression of all ideas, not only those which are acceptable by the majority, and why we should not restrict the speech or assembly of anyone within the community that is the United States, regardless of their viewpoint.

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