NYT Contributor: ACLU Should Rethink Free Speech

Posted: Aug 17, 2017 5:45 PM

K-Sue Park, a housing attorney and Critical Race Studies fellow at U.C.L.A. School of Law, wrote a New York Times opinion piece Thursday critiquing the American Civil Liberties Union’s response to the violent white supremacist rally in Charlottesville.

The ACLU condemned the racism and violence but defended their lawsuit on behalf of the rally's organizers' efforts to obtain a permit. They point to the First Amendment rights of the organizers and their belief that the government should never “be in a position to favor or disfavor particular viewpoints.” They emphasize that “the violence of this weekend was not caused by our defense of the First Amendment. The ACLU of Virginia went to court to insist that the First Amendment be applied neutrally and equally to all protesters.”

K-Sue Park calls this approach “admirable in theory,” but argues that it “implies that the country is on a level playing field, that at some point it overcame its history of racial discrimination to achieve a real democracy, the cornerstone of which is freedom of expression.”

“By insisting on a narrow reading of the First Amendment, the organization provides free legal support to hate-based causes,” she argues.

“For marginalized communities, the power of expression is impoverished for reasons that have little to do with the First Amendment,” K-Sue Park claims. “Numerous other factors in the public sphere chill their voices but amplify others.”

She believes marginalized community voices are chilled because “the power of speech remains proportional to wealth in this country, despite the growth of social media. When the Supreme Court did consider the impact of money on speech in Citizens United, it enabled corporations to translate wealth into direct political power. The A.C.L.U. wrongly supported this devastating ruling on First Amendment grounds.”

Other restrictions of speech she lists include “police intimidation of African-Americans and Latinos." She claims that "these communities know that most of the systematic harassment and threats that stifle their ability to speak have always occurred privately and diffusely, and in ways that will never end in a lawsuit.”

She argues “a black kid who gets thrown in jail for possessing a small amount of marijuana will face consequences that will directly affect his ability to have a voice in public life," asking, “How does the A.C.L.U.’s conception of free speech address that?”

Ultimately K-Sue Park believes the ACLU should ask itself: “Could prioritizing First Amendment rights make the distribution of power in this country even more unequal and further silence the communities most burdened by histories of censorship?”

She adds that other more subtle forms of government suppression include the suppression of "protesters at President Trump’s inauguration" who "are facing felony riot charges and decades in prison. (The A.C.L.U. is defending only a handful of those 200-plus protesters.)" and the fact that "states are considering laws that forgive motorists who drive into protesters."

It should be noted that many protestors at the inauguration were caught on tape smashing windows and setting fires. The vandalism from that day resulted in more than $100,000 in damages to buildings, property, and vehicles.

The legislation to forgive motorists who run into protestors is not expected to pass in North Carolina or Texas, would not excuse drivers who intentionally drive into protestors, and was drafted to protect drivers against lawsuits related to accidents arising from the protest tactic of blocking highways.

Regarding “the danger that communities face because of their speech isn’t equal (sic),” K-Sue Park goes on to argue that “the A.C.L.U.’s decision to offer legal support to a right-wing cause, then a left-wing cause, won’t make it so. Rather, it perpetuates a misguided theory that all radical views are equal.”

She concludes that “the A.C.L.U. needs a more contextual, creative advocacy when it comes to how it defends the freedom of speech. The group should imagine a holistic picture of how speech rights are under attack right now, not focus on only First Amendment case law.”

“It must research how new threats to speech are connected to one another and to right-wing power,” she urges. “Acknowledging how criminal laws, voting laws, immigration laws, education laws and laws governing corporations can also curb expression would help it develop better policy positions.”

The ACLU seems to agree with her on this point at least, pointing out in their response to the Charlottesville backlash that “by budget allocation, the national ACLU’s top issue areas are ending mass incarceration, protecting LGBT rights, and safeguarding immigrants’ rights, demonstrating our commitment to advancing equality and justice with communities that are often the targets of white supremacists' bigotry and hate.”

The organization, however, still justifies their lawsuit on behalf of the rally’s organizers in Charlottesville arguing, “there are important reasons for our long history of defending freedom of speech — including speech we abhor.”

“We fundamentally believe that our democracy will be better and stronger for engaging and hearing divergent views,” they write. “Racism and bigotry will not be eradicated if we merely force them underground. Equality and justice will only be achieved if society looks such bigotry squarely in the eyes and renounces it. Not all speech is morally equivalent, but the airing of hateful speech allows people of good will to confront the implications of such speech and reject bigotry, discrimination and hate. This contestation of values can only happen if the exchange of ideas is out in the open.”

Recommended Townhall Video