Free Speech or Hate Speech? Civil Liberties Body ACLU Will No Longer Defend Gun-Carrying Protest Groups

Charlottesville Vigil
Members of the Charlottesville community hold a vigil for Heather Heyer, who died protesting the rally, at the University of Virginia in Charlottesville, Virginia, on August 16. The Cavalier Daily/Handout/Reuters

Since its founding during a period of anti-communist paranoia in 1920, the American Civil Liberties Union (ACLU) has served as a reliable line of defense for those who find their constitutional freedoms under threat.

Sometimes, that means fighting for liberal causes: ACLU lawyers were involved in Roe v. Wade and Doe v. Bolton, the two U.S. Supreme Court victories that underpinned women’s right to abortion in modern America. And the ACLU was the only major U.S. organization to speak out against the internment of 110,000 Japanese Americans following the attack on Pearl Harbor in 1941.

But sometimes, the group has decided to defend people who its liberal supporters find less palatable. In a 1934 pamphlet, entitled "Shall We Defend Free Speech for Nazis in America?" the group defended its choice to stand up for German-American Nazis who wanted to hold meetings in the U.S. “Is it not clear that free speech as a practical tactic, not only as an abstract principle, demands the defense of all who are attacked in order to obtain the rights of any?” its justification read.

In modern America, the ACLU finds itself in a similar bind. With far-right groups like neo-Nazis and the Ku Klux Klan more visible, and white nationalists grouping under the self-defined banner of the "alt-right," it must decide whether it will defend the rights of such groups to demonstrate and spread their often hateful views.

While the ACLU does still advocate for such groups, it is now laying out some strict boundaries about what it is willing to stand up for. Prior to the “Unite the Right” rally in Charlottesville, Virginia, the ACLU acted in support of the organizers, who were originally denied a permit to gather. However, that gathering resulted in violent clashes and the death of a woman when a man drove his car into a group of anti-fascist counterprotesters.

On Thursday, the ACLU made a statement specifying that it would not defend groups that wanted to incite violence or march “armed to the teeth,” the Los Angeles Times reported.

“We review each request for help on a case-by-case basis, but take the clear position that the 1st Amendment does not protect people who incite or engage in violence,” the statement, from three California ACLU affiliates, said.

“If white supremacists march into our towns armed to the teeth and with the intent to harm people, they are not engaging in activity protected by the United States Constitution,” the statement continued. “The 1st Amendment should never be used as a shield or sword to justify violence.”

Waldo Jaquith, a former member of the ACLU Virginia board, had already resigned over the group’s decision to defend far-right activists. “I just resigned from the ACLU of Virginia board,” he wrote on Twitter. “What’s legal and what’s right are sometimes different. I won’t be a fig leaf for Nazis.”

As the organization’s ranks have swelled—in many cases with people opposed to the policies of U.S. President Donald Trump—and left-wing views on zero-tolerance anti-fascist tactics gain a greater hearing, this is likely to be just the start of a long wrestle within the ACLU on the boundaries between defending free speech and endangering more vulnerable groups.