Tensions grow inside ACLU over defending free-speech rights for the far right

It was 1934 and fascism was on the march not only in Europe but in America. People who admired Adolf Hitler, who had taken power in Germany, formed Nazi organizations in the United States.

The American Civil Liberties Union, represented by lawyers who were Jewish, faced an existential question: Should the freedoms it stood for since its founding in 1920 apply even to racist groups that would like nothing more than to strip them away?

Ultimately, after much internal dissent, the ACLU decided: Yes, the principles were what mattered most. The ACLU would stand up for the free-speech rights of Nazis.

“We do not choose our clients,” the ACLU’s board of directors wrote in an October 1934 pamphlet called “Shall We Defend Free Speech for Nazis In America?” “Lawless authorities denying their rights choose them for us. To those who support suppressing propaganda they hate, we ask — where do you draw the line?”

Once again, the ACLU is wrestling with how to respond to a far-right movement in the U.S. whose rising visibility is prompting concerns from elected officials and activists.

In response to the deadly violence at a rally in Charlottesville, Va., last weekend, the ACLU’s three California affiliates released a statement Wednesday declaring that “white supremacist violence is not free speech.”

The national organization said Thursday that it would not represent white supremacist groups that want to demonstrate with guns. That stance is a new interpretation of the ACLU’s official position that reasonable gun regulation does not violate the 2nd Amendment.

Officials in Charlottesville had initially denied organizers of the “Unite the Right” rally a permit to hold the event at the site of a Robert E. Lee statue. But the ACLU filed a lawsuit defending protesters’ rights to gather there. The rally ended with one woman killed and dozens of people injured as neo-Nazis and other far-right groups that had come armed with shields, helmets and even guns clashed violently with counter-protesters.

Now, with more far-right events scheduled in California, the state’s ACLU affiliates are warning that there are limits to what they will defend.

“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,” said the statement, which was signed by the executive directors of the ACLU affiliates of Southern California, Northern California, and of San Diego and Imperial Counties.

“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.”

That statement drew some criticism from former ACLU board member Samuel Walker, a history professor at the University of Nebraska in Omaha, who supports the ACLU’s historical stance on far-right groups. He called the remarks “irresponsible.”

“How is the 1st Amendment being a shield for violence?” he said. “They need to be clear on that, and this statement is not clear.”

Ahilan Arulanantham, the legal director of the ACLU of Southern California, said it was not the organization’s perspective on civil liberties that had changed, but the nature of the far-right groups themselves — a willingness to come to events ready for violence.

“The factual context here is shifting, given the extent to which the particular marches we’re seeing in this historical moment are armed,” Arulanantham said.

For decades, the ACLU has defended the speech rights of far-right groups like neo-Nazis and the Ku Klux Klan on the principle that if those groups’ rights are not upheld, the government will try to restrict the free-speech rights of other groups as well.

Most famously, the ACLU successfully defended the rights of neo-Nazis to march in the Chicago suburb of Skokie, Ill., in 1978, which was home to many Holocaust survivors.

But the ACLU’s stance was costly. The group’s membership and donations — which had soared during the Nixon administration — declined sharply after the Skokie case, with thousands of supporters abandoning the group. A left-wing civil liberties counterpart, the National Lawyers Guild, accused the ACLU of “poisonous evenhandedness.”

The group has seen its membership and its donations soar under the Trump administration as left-leaning Americans embrace the organization as a bulwark against the administration.

But some emerging factions of the left do not share the ACLU’s values on free speech and assembly. Surveys have shown that young people are more likely than older Americans to support a government ban on hate speech, which is constitutionally protected.

Leftists who call themselves “anti-facists” and in many cases endorse illegal violence, viewing it as a morally just tactic to prevent neo-Nazis from gathering publicly, have also seen their numbers grow since Trump’s election, which was supported by far-right groups.

The ACLU’s decision this month to file a 1st Amendment lawsuit on behalf of right-wing provocateur Milo Yiannopoulos — whose rhetoric about immigrants and minorities has made him a target of violent protests — prompted a high-profile ACLU attorney to publicly object.

“Though his ability to speak is protected by the 1st Amendment, I don’t believe in protecting principle for the sake of principle in all cases,” wrote Chase Strangio, who stressed he was speaking in a private capacity. “His actions have consequences for people that I care about and for me.”

The outcry from the ACLU’s California affiliates prompted the group’s national leader, Anthony D. Romero, to respond with a statement of his own.

“We agree with every word in the statement from our colleagues in California,” Romero said. “The 1st Amendment absolutely does not protect white supremacists seeking to incite or engage in violence. We condemn the views of white supremacists, and fight against them every day.”

But, Romero added: “At the same time, we believe that even odious hate speech, with which we vehemently disagree, garners the protection of the 1st Amendment when expressed non-violently. We make decisions on whom we’ll represent and in what context on a case-by-case basis. The horrible events in Charlottesville last weekend will certainly inform those decisions going forward.”

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Matt Pearce is a national reporter for The Times. Follow him on Twitter at @mattdpearce.

4:55 p.m.: This story was updated to change the name of the 1934 ACLU pamphlet.

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UPDATES:

6:55 p.m.: The article was updated to include the ACLU’s decision not to represent white supremacist groups that want to demonstrate with guns.

The article was originally published at 4:55 p.m.