That the New York Times would consider the article below worthy of publication is astounding—and frightening. (Click on screenshot to go to piece). For author K.-Sue Park, identified as “a housing attorney and the Critical Race Studies fellow at the U.C.L.A. School of Law” (her fellowship is a clue to her views) wants nothing more than for the American Civil Liberties Union (ACLU) to stop defending the civil rights of whose speech she doesn’t like: right-wingers, white supremacists, and so on. They should, instead, concentrate on defending those she favors: African-Americans, left-wing academics, Latinos, and similar groups.
Let me first say that Park’s credentials are impressive: she has a B.A. from Cornell, a M. Phil. from the University of Cambridge, a J.D. from Harvard Law School, and a Ph.D. from Berkeley. But all this goes to show that a good education does not make you a rational supporter of Constitutional rights.
Park’s argument is a bit confused, for while she may understand the mission of the ACLU—to defend the civil liberties of all Americans, usually through legal action—she doesn’t like that because, she says, the playing field is not “level” for oppressed minorities, who are said to have less right to speak. Park urges the organization to stop defending those she sees as oppressors, like white supremacists, and concentrate on defending the rights of those minorities. Here are a few quotes (emphases are mine):
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.
The weakness of this argument is palpable and obvious: the “narrow” reading of the First Amendment, in which all Americans, regardless of views, have Constitutional protections, is the reading the Founders intended, and the only one that will really protect everyone’s civil rights. But we go on, let’s look at a few things the ACLU has done or tried to do; this is taken from the Wikipedia page:
The ACLU was founded in 1920 by Helen Keller, Roger Baldwin, Crystal Eastman, Walter Nelles, Morris Ernst, Albert DeSilver, Arthur Garfield Hays, Jane Addams, Felix Frankfurter, and Elizabeth Gurley Flynn, and its focus was on freedom of speech, primarily for anti-war protesters. During the 1920s, the ACLU expanded its scope to include protecting the free speech rights of artists and striking workers, and working with the National Association for the Advancement of Colored People (NAACP) to decrease racism and discrimination. During the 1930s, the ACLU started to engage in work combating police misconduct and supporting Native American rights. Many of the ACLU’s cases involved the defense of Communist party members and Jehovah’s Witnesses. In 1940, the ACLU leadership voted to exclude Communists from its leadership positions, a decision rescinded in 1968. During World War II, the ACLU defended Japanese-American citizens, unsuccessfully trying to prevent their forcible relocation to internment camps. During the Cold War, the ACLU headquarters was dominated by anti-Communists, but many local affiliates defended members of the Communist Party.
By 1964, membership had risen to 80,000, and the ACLU participated in efforts to expand civil liberties. In the 1960s, the ACLU continued its decades-long effort to enforce separation of church and state. It defended several anti-war activists during the Vietnam War. The ACLU was involved in the Miranda case, which addressed conduct by police during interrogations, and in the New York Times case, which established new protections for newspapers reporting on government activities. In the 1970s and 1980s, the ACLU ventured into new legal areas, involving the rights of homosexuals, students, prisoners, and the poor. In the twenty-first century, the ACLU has fought the teaching of creationism in public schools and challenged some provisions of anti-terrorism legislation as infringing on privacy and civil liberties. Fundraising and membership spiked after the 2016 election; the ACLU’s current membership is more than 1.2 million.
This doesn’t comport with Park’s assertion that the ACLU hasn’t helped secure, or tried to secure, “real freedom or even safety for all.” Yes, they’ve had what many of us see as missteps, like their erstwhile anti-Communism and their present stance of “standing with Linda [Sarsour]”, but it is a good organization and a nonpartisan one, with a long and admirable history of defending civil rights for everyone. And what kind of organization devoted to defending the Constitution would defend the civil rights of only a politically favored group? If you did that, you’d send the implicit message that some groups aren’t worth having civil rights. And, without a defense, those groups might lose them. Yet the Constitution defends civil rights for all. As the First Amendment notes, and this is the linchpin of the ACLU’s mission:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Note that this doesn’t single out any groups for special treatment or grant any exceptions—it mentions “the people”. And that, of course, is for a reason well understood by the authors: the American democracy is not secure if only some people have their Constitutional rights.
In fact Park, though her intentions are good—to protect the oppressed—seems to want the ACLU to engage in social engineering, not only concentrating its efforts on those groups she favors, but going beyond their legal mission. As she says:
For marginalized communities, the power of expression is impoverished for reasons that have little to do with the First Amendment. Numerous other factors in the public sphere chill their voices but amplify others.
Most obviously, the power of speech remains proportional to wealth in this country, despite the growth of social media.
Well, yes, if you are rich and powerful, own a newspaper or have a radio show like Rush Limbaugh, you have a bigger megaphone. There’s little we can do about that, but what we can do is ensure that nobody is prevented from saying what they want in the public sphere. Every day, on the news and on social media (which has many venues “amplifying” the voices of minorities), I hear the voices of blacks, gays, Hispanics, women, and similar groups. They have not been silenced: not by the government and not by the mainstream media (who are, by and large, liberal). But Park goes even further with her desire to have the ACLU change society to the way she wants:
Other forms of structural discrimination and violence also restrict the exercise of speech, such as police intimidation of African-Americans and Latinos. 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.
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. How does the A.C.L.U.’s conception of free speech address that?
Well, it doesn’t. This is a matter of bigotry by the police, differential crime rates, and so on, and believe me, you can see police departments getting investigated all the time for disproportionately bad treatment of blacks. That is one reason, for instance, that the Supreme Court banned the death penalty in 1973. It rescinded that ban in 1976, but the ACLU has consistently fought against the death penalty. It can’t do everything!
Parks’s article goes on, lurching from issue to issue about social justice, including the threats that people get for “challenging hateful speech”, the suppression of speech by “left-wing academics” (aren’t right-wing academics suppressed even more?), and the fact that “police arrive with tanks and full weaponry at anti-racist protests but not at white supremacist rallies.” (Is that even true? Were there police with tanks and full weaponry at the Berkeley anti-Milo protests?)
At the end, Park uses a bunch of words to say just this: “The ACLU has to stop defending right wingers and concentrate on the Left and on marginalized minorities”. Or, in her more obscurantist prose:
The danger that communities face because of their speech isn’t equal. 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. And it fuels right-wing free-speech hypocrisy. Perhaps most painful, it also redistributes some of the substantial funds the organization has received to fight white supremacy toward defending that cause.
Here Park mistakes the view that “all radical views are equally valid” with the view that “all radical views are equally protected by the Constitution”—the ACLU’s view. She goes on:
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. 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.
Sometimes standing on the wrong side of history in defense of a cause you think is right is still just standing on the wrong side of history.
But the ACLU has a broader view, I think, than does Park. They are defending the civil rights of everyone in this democracy, and in so doing they are keeping the Constitution strong and enforced. That is being on the right side of history, even if it means sometimes defending those we disagree with.
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Parks’s article has now garnered 2189 comments at the Times, and it seems that most of them aren’t on her side.
