Yes, Let’s Rethink Free Speech

By Charles C. W. Cooke

Saturday, August 19, 2017

In the New York Times, UCLA’s K-Sue Park proposes that “the A.C.L.U. Needs to Rethink Free Speech”:

After the A.C.L.U. was excoriated for its stance, it responded that “preventing the government from controlling speech is absolutely necessary to the promotion of equality.” Of course that’s true. The hope is that by successfully defending hate groups, its legal victories will fortify free-speech rights across the board: A rising tide lifts all boats, as it goes.

While admirable in theory, this approach 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.

I volunteered with the A.C.L.U. as a law student in 2011, and I respect much of its work. But it should rethink how it understands free speech. By insisting on a narrow reading of the First Amendment, the organization provides free legal support to hate-based causes. More troubling, the legal gains on which the A.C.L.U. rests its colorblind logic have never secured real freedom or even safety for all.

Park is correct. It is high time that the ACLU moved onto the right side of History and abandoned the “narrow reading” of the First Amendment that is the result of 50 years of unanimous Supreme Court precedent. In lieu, it must focus on working toward more diverse and productive ends, such as giving Jeff Sessions and Donald Trump the robust censorship powers that they so richly and urgently deserve. The United States federal government is now run at every level by Republicans. So, indeed, are the lion’s share of the governors’ mansions, statehouses, and localities. If the ACLU really knuckles down, it can ensure that these figures — and not pernicious “neutral” principle — determine the edges and contours of America’s civil society.

Don’t bore me with your objections. Park is a smart woman, and she knows what “hate” is. We all do. Hate is hate. It is not speech; it’s hate. Sometimes hate is violence, even when no action is attached. How do I know, you might ask? I know because hate is, by definition, hateful, and that means it’s not speech. And why isn’t it speech? Because it’s hate, and hate isn’t speech. This is basic common sense, rejected only by haters.

The ACLU insists that “preventing the government from controlling speech is absolutely necessary to the promotion of equality.” But more sensible thinkers grasp that quite the opposite is true. As Park notes, any defense of the status quo “perpetuates a misguided theory that all radical views are equal.” They’re not, and, in consequence, an arbiter is necessary. At first, that should be the ACLU, which should simply let some censorship be – or, even better, start endorsing it. And eventually, having been freed up by the ACLU’s backing away from what Park notes correctly is “only First Amendment case law,” the government itself should assume that role. Then, and only then, will some space have been cleared for the wise.

We have an array of differing views in this country, but I think we can all agree that nobody could be better suited to that oversight role than Jeff Sessions, President Donald Trump, and the thousands upon thousands of state-level Republicans who have been recently swept into office by the infallible will of the people. Furthermore, we should all be able to unite around the appealing chance to hand more power over to the police. Donald Trump is a man marked out for his wisdom, scholarship, and judicious temperament. But, exquisite as his judgment is, he is able to direct prosecutions only on a macro level. To make the scheme work in practice, America’s police officers must enjoy the legal opportunity to determine what — and who — sits outside of the law’s protection. By insisting upon a consistent application of the First Amendment — and, most problematically, by defending “the legal gains on which [it] rests its colorblind logic” — the ACLU is depriving our cops of this vital first-line oversight role. In the wake of Charlottesville, that must change. As Park makes clear, it was the ACLU’s insidious monomania that “led the organization to successfully sue the city of Charlottesville, Va.,” which, had it been left to its own devices, would likely have made the right call.

That this has to be said in 2017 is truly remarkable. The United States did not fight two global conflicts and a bloody civil war to permit the Bill of Rights to flourish. Nor did countless Americans expend their time, blood, and energy to allow unpopular people to speak without the vigorous superintendence of whoever temporarily commands the public’s support. On the contrary: Those battles were fought for one reason, and one reason only: To permit Jeff Sessions and Donald Trump to shape our society as they in their eternal prudence see fit. If that dream is finally to be realized, the ACLU must dismount its high horse and get the hell out of the way.