The last couple of months have seen a lot of intra-left argument about the ACLU. And the last couple of years have seen a lot of argument, all over the place, about “free speech” – what should be included under that banner, what exceptions there should be, what the priorities of people who care about it should be, how tension with other important principles can be addressed.
A clear complicating factor is that many leftists (including me), to varying degrees, don’t believe that “free speech” advocacy in its currently-popular forms either equally protects or is intended to equally protect leftist speech. Quite frequently, it’s a rhetorical club for centrists, right-wingers, and fascists to hit leftists with, and sometimes a way for fascists, who, I have some bad news here folks, do not actually support the same ideals around free speech that centrist-liberal sorts do*, to curry favor with the more oblivious factions of centrists and libertarians. I think this is obviously the case right now for most “free speech” advocacy that is anything other than actual First Amendment advocacy. But what about actual First Amendment advocacy? Isn’t that what all the argument over the ACLU is about? Doesn’t First Amendment advocacy protect everyone? That’s the ACLU’s usual argument for representing horrible people.
Here’s a take that I’m not sure I’ve seen anyone make explicitly before (though I should note that I started thinking along these lines because of a couple of recent-ish comments by Malcolm Harris in a Twitter discussion that I was watching).
It was a mistake for the ACLU to decide, long ago, that it just doesn’t do criminal defense (that link is to the Washtington state affiliate because it was the first that popped up when I searched, but you can find a statement like this on any ACLU affiliate’s website). That it doesn’t do criminal defense even for, say, protest arrestees whose First Amendment rights have been violated. It was a mistake that has had the effect, though not, I strongly suspect, the intention, of convincing many leftists that First Amendment advocacy isn’t really there for them. The ACLU should use some of the large pool of donation money that it has gotten in the Trump era, to hire a few people who could defend arrestees and people under threat from the immigration system, whose First Amendment rights have been violated, as the NLG does in locations where it has the resources (the NLG is a wonderful wonderful organization and you should donate money to your local chapter, but it also doesn’t exist in every city, works on a shoestring budget, and is a bunch of volunteers with day jobs).
The ACLU does laudable work suing police and other state agencies for violating activists’ and others’ First Amendment rights, challenging unconstitutional laws that criminalize activism, and other work that is related to this issue. But when you’re being prosecuted, defending yourself is your first concern. It’s fraught and often unwise to sue the police or any other government agency while you still have an open criminal case (and all but impossible in most states to sue a prosecutor for prosecutorial misconduct). It’s hard to win a case against the police in general, thanks to qualified immunity. If you’re convicted at trial, or if you are intimidated into a plea bargain (even one where you don’t plead guilty but admit to sufficient facts) by the prospect of being railroaded into a significant jail or prison sentence if you assert yourself, you probably won’t be able to successfully sue the state for issues around wrongful arrest or malicious prosecution. You typically have to get rid of the charge first (after which the ACLU can do good things for you). If you’re being prosecuted, after being arrested for what should have been treated as protected First Amendment activity, what you need most is someone to defend you. And that kind of defense is hardly devoid of First Amendment subject matter – a lawyer can, for example, argue for your charges to be dismissed on constitutional grounds, or argue to a judge that First-Amendment-related case law and other material should be incorporated into the jury instructions, or make a closing argument that discusses freedom of speech.
I’ve been there, done that. The first and foremost thing you need if you’re being prosecuted for exercising your rights is for somene to defend you. Period.
This is anecdotal, but my observation is that protests representing different ideologies tend to run into different potential constitutional issues. The ACLU of Virginia landed in controversy for having taken on the case of the “Unite the Right” fascist rally in Charlottesville after a rallygoer killed a counterprotester. The (pretty dubious, in my opinion) issue at hand in that case was permits. The rally wanted a permit for one park, the city wanted to give them a permit for a different park, further from downtown and with more space to separate rally and counterprotests. The ACLU of Virginia decided that this was an important constitutional issue that they should prioritize, and that their doing so would benefit everyone’s free speech. If you think I’m being a little snarky there, you’re right. In part that’s because I think the ACLU, which gets far more requests for help than it can take on, should focus on the free speech cases of the oppressed, because I think that, and not the most reprehensible speech, is the most likely to be targeted by the state. In part it’s because I think “which city park do we get a permit for” is of dubious worth as a free speech case. In part it’s because I think they let themselves get suckered by people who wanted blood and terror and were using them in bad faith. But it’s ALSO because in the dozens and possibly hundreds of left-wing protests I’ve been at, permits rarely come up as a constitutional issue. For one thing, at at least 90% of them, nobody obtained or is seeking a permit (and the ACLU will sell you a shirt, which I own, emphasizing that you have a First Amendment right to protest without a permit)! At least in recent times, fascists like permits, perhaps because they tend to carry a certain level of state protection, and various privileges (e.g. around sound amplification), maybe access to a specific venue that requires a permit, and perhaps because they can then run around trying to confuse people by incessantly repeating “We were in the right, we had a permit!” as though the second half of that sentence has something to do with the first. Since most leftist protests aren’t seeking permits, free speech issues at leftist protests aren’t usually about permits, and protecting fascist permit access isn’t protecting the bulk of leftist protests. The free speech issues at leftist protests, in my experience, are usually things like “Police mass-arrested an entire group” or “Police arrested me for filming/watching/photographing” or “Police targeted me because I’m an anarchist.”
You may notice that the leftist free speech issue examples that I gave in the last sentence, if prosecutors decide to run with those cases, all involve prosecution, rather than something like permit wank, and thus require criminal defense. The ACLU, as it operates now, cannot help with those free speech infringement victims’ most basic and urgent legal needs. The ACLU, as it operates now, can’t defend the roughly 200 J20 defendants who are facing decades in prison for having attended a certain march. It can sue on behalf of a few arrestees, which is great and I am extremely glad that they’re doing it, but it’s not what most people need the most. If any arrestees in the recent St. Louis anti-police-brutality protests are prosecuted, the ACLU can’t defend them (though it can file and is filing civil suits on behalf of some people who were brutalized), even if their First Amendment rights were obviously violated. When I was being prosecuted, I was defended by volunteers from the Massachusetts chapter of the NLG, which has defending leftist protest arrestees as part of its mission. They brought in the First Amendment aspects of the case in all the ways that one can do so in an initial criminal trial, that I mentioned earlier in this post. They had assistance in trial prep from other NLG volunteers with various lawyerly day jobs, one of whom was, in fact, an ACLU employee – but he was wearing his NLG volunteer hat, not his ACLU employee hat, when he helped. The ACLU couldn’t represent me against a bullshit politically motivated prosecution. Because that’s not what they do.
When, because of asymmetry in the typical action structures of different ideologies, the structure of the ACLU is such that it can address the typical immediate concerns of fascists exercising their speech rights at demonstrations, but not the typical immediate concerns of leftists exercising their speech rights at demonstrations, leftists pick up on that, and perceive the ACLU’s concept of how free speech should be fought for as unfriendly and unhelpful to them. And friendly and helpful to people who want to kill them. The ACLU then attempts to explain (and I have no doubt that they sincerely believe it) how their work representing fascists protects everyone’s First Amendment rights. And quite a few leftists straight-up don’t buy it. In part that’s because many leftists don’t expect precedents set for groups dominated by white men who claim to be upholding some kind of traditional values, to be consistently and fairly applied by the courts/police/prosecutors to other groups. They don’t expect it to protect them from being brutalized, and that’s not a critique that’s just going to go away. But it’s also because leftists aren’t getting the foremost protection that they need from the ACLU, because the ACLU’s model doesn’t allow it. People have a vague idea that the ACLU’s job is to protect people whose constitutional rights are being violated by the government, and then the government is violating their rights and the ACLU isn’t there.
I realize what a huge departure this would be from its model, but the ACLU should be willing to defend some political defendants at trial. Not to patch up relations with the left, though I think it would be a positive step. Not because it’s going to neutralize every left critique of the ACLU (it isn’t, there are plenty of critiques, some of which I agree with and some of which I don’t, that have nothing to do with this). But because it’s work that’s really important to civil liberties in the US.
*For example, one fascist group, which has had significant presence at “free speech” rallies, wears and carries paraphernalia that advocates the state throwing leftists out of helicopters, Pinochet-style.
