The alt-right and white nationalist rallies of August 2017 in Charlottesville, Virginia brought about a period of reflection and self-examination for much of the nation. The citizens of Charlottesville were faced with the ugly aftertaste of brawls and a fatal vehicular attack. Politicians were faced with the need to address a president who seemed unable to unequivocally condemn white nationalist protesters. Americans were confronted with an ugly ideology, emboldened, rearing its head in public. But one of the biggest episodes of soul-searching, and one of the most overlooked, happened within the American Civil Liberties Union.
The ACLU has been committed to “preserving the individual rights and liberties guaranteed by the Constitution” since its founding in 1920, and has enjoyed a renaissance in fundraising and visibility under the Trump administration. By August of last year, it had successfully fought the administration’s travel bans in court and acquired an elevated profile resulting from its challenges to other administration actions which put individuals’ rights at risk. Leveraging its position, the ACLU collected $83 million in online donations from Election Day of 2016 to the following August, more than sixteen times its typical online donations for such a period. But after the Charlottesville rally, the organization took a hard look in the mirror because it had done what it does best: defend individuals’ rights.
The right in question was for the Unite the Right rally organizers to choose their preferred venue, over the preferences of the Charlottesville City Council. The ACLU challenged the city in court, successfully arguing that the relocation of the rally represented a violation of the rally organizers’ First Amendment rights to freedom of expression. In pursuing the challenge, it continued a long tradition of protecting the rights even of those who hold some of the most despicable views. On this occasion, that storied tradition would be the flashpoint of the ACLU’s soul-searching.
The outcome of the rally is well-known. Its effect on the ACLU is still unclear. Critics laid some of the blame for the violence on the ACLU, donations slowed, people issued threats on social media, board members resigned. Still, it must clearly answer the question: how will it defend distasteful, and even abhorrent, views that are protected under the First Amendment without losing its mantle of champion of individual liberties? The answer is simple: by continuing to do what it has done. In today’s hyper-partisan political environment, the ACLU should hold its record of representing clients spanning even the furthest extremes of the political spectrum as a badge of honor. It has argued that defending freedom of speech for the political fringes of society most effectively defends freedom of speech for us all, and that we should therefore applaud its commitment to principle, even as the views expressed by some of the people it goes to court for horrify us.
The greatest temptation the ACLU faces now is taking cases based on ideological leanings. Cracks have appeared in its longstanding tradition which suggest this may be happening. Following the Charlottesville rally, the ACLU was faced with the possibility of having to protect the First Amendment right to hold another white nationalist rally. It waffled and searched for ways to avoid a repeat of the criticism that followed the Charlottesville rally. In doing so, the ACLU missed an opportunity to reinforce the perception that it protects principles, not necessarily all the speech or actions which those principles allow Americans to engage in. The organization also announced that it would not take the cases of hate groups that protest while bearing firearms. This sets the stage for a new issue that must be tackled: should the ACLU allow First Amendment rights to be infringed because certain people are exercising their Second Amendment rights? How should it choose which of these rights to defend? Will that decision be partisan, in the sense of favoring or disfavoring the right or left, or certain causes? The answers are not clear -- but the ACLU should not force itself to answer those questions.
The way forward for the ACLU should be clear. It has the opportunity to write a new, distinguished chapter in its history as a nonpartisan defender of rights even in especially difficult and unattractive circumstances. It should emphasize that what people do with those rights can be moral or immoral, and that the completely consistent application of the Bill of Rights is what best protects the bedrock of the liberties the ACLU defends from erosion.