The ACLU Got This One Wrong

Hate Speech is not just a “disagreeable position”

This isn’t the first time that the ACLU has defended speech that is offensive to rational thinkers. It’s rather amusing to see people going full bore on an organization that they held in such high esteem just a few short weeks ago, when they (apparently) mistakenly believed that the American Civil Liberties Union was just another “Trump Resistance” group. It seems that people have no problem supporting the ACLU when it is attacking unconstitutional executive orders by a racist xenophobe, but that support diminishes significantly when the same idea of defending constitutional rights is applied to people that Democrats don’t like. Go figure.

This is the exact same stance we’ve seen over and over again with Democrats regarding much of what Donald Trump has done since slinking his way into the Oval Office. A lot of what they are up in arms about all of a sudden were also the favorite pastimes of the adored smooth-talking corporatist that just retired. For Establishment Dems, it isn’t about actions, it’s all about the visual.

I’m not attempting to excuse Trump for any of those things – they are despicable, no matter who does them, and Obama’s warmongering and corporatism doesn’t excuse Trump’s. But it is quite amusing to see the hypocrisy of partisan hacks coming to full light… in a “You’re kidding me right now, right?” sort of funny.

But the reaction to the ACLU’s defense of conservative author and mouth-runner extraordinaire Ann Coulter isn’t what this piece is about, nor is it about Obama v Trump. This one is about how the ACLU, as noble as their intentions may be, is wrong in this case. And it’s been wrong many times before.

On Wednesday, April 26, 2017, Coulter announced that a speech she was scheduled to give at UC-Berkeley had been canceled. In an email, Coulter described some sort of contention between the university and the Young America’s Foundation, a conservative organization dedicated to the indoctrination of mostly white, mostly male college kids and more devoted to the memory of their beloved treasonous war criminal Ronald Reagan than Mike Pence is to “Mother”.

YAF darling Ben Shapiro | Photo Credit:

Coulter’s email stated that UC-Berkeley realized that the Young America’s Foundation “wasn’t serious and dropped ongoing negotiations over a room.” She went further, actually placing blame for the cancellation of her appearance on the YAF, writing “Everyone who should be for free speech has turned tail and run.”

YAF claimed otherwise in their April 25 statement, which said:

“UC-Berkeley failed to meet our demands, after refusing to provide a proper venue for six weeks. Berkeley made it impossible to hold a lecture due to the lack of assurances for protections from foreseeable violence from unrestrained leftist agitators.”

University Chancellor Nicholas Dirks stressed the importance of two concerns: the university’s commitment to free speech, and the university’s commitment to safety on campus for students and visitors alike.

“We must make every effort to hold events at a time and location that maximizes the chances that First Amendment rights can be successfully exercised and that community members can be protected. While our commitment to freedom of speech and expression remains absolute, we have an obligation to heed our police department’s assessment of how best to hold safe and successful events.”

But the ACLU is defending Ann Coulter (or her right to speak publicly anyway). Which isn’t surprising, except to those who for some strange reason thought that the ACLU only defended speech preapproved by the Democratic Party. Throughout the years, the ACLU has been a staunch defender of the right to Free Speech, even for such vile groups as the KKK and Neo-Nazis, as well as apparent pedophile apologists and avowed outspoken homophobes. It seems that when it comes to Hatemongers, the ACLU believes that they can talk about doing things, as long as they don’t actually do them. And, honestly, it’s Ann Coulter, for crying out loud. She’s such a joke that Milo is now trying to use this situation to claw his way back to semi-relevance. The punchline is that he is going to “bring an army” to defend Ann, and the leftists are the violent ones. Hilarious.

*pssssst*… Bill Maher is also a piece of shit… | Photo Credit: Milo Snuffalumpagus


But anyway… The Civil Rights watchdog put out a statement following the canceling, rescheduling, and re-cancelling of the Coulter speaking event:

“Hateful speech has consequences, particularly for people of color, LGBTQ people, immigrants, and others who have been historically marginalized. But if the government gets to decide which speech counts as hate speech, the powers that be may later feel free to censor any speech they don’t like.”

Well, yeah. That is absolutely correct. The government should not get to determine who can say or write anything, nor should the government decide what those people can say or write. And the government certainly shouldn’t be telling you who or what you can read, watch, or listen to. We’ve got something in our Constitution that will protect against this very thing, and it’s exactly what the ACLU is defending – they aren’t defending Ann Coulter or what she has to say, but rather the 1st Amendment that protects her from the government deciding whether or not she can say it.

I agree with and support the ACLU 99.9% of the time, and in this particular aspect, they are correct. Had they limited their statement to this simple fact, the only question I would have would be why they needed to state the obvious. But they didn’t limit it to only that. The very first sentence frames the rest of the statement:

“The unacceptable threats of violence that have led to the ‘hecklers’ veto’ of Ann Coulter’s speech at Berkeley are inconsistent with free speech principles that protect us all from government overreach.”

And this is where they missed the mark – the government did not overreach or censor anything. Their claim that Berkeley’s cancellation of Coulter’s speech, as a public university (something that is highly debatable – tuition costs are not exactly minuscule and the vast majority of funding comes not from the state but from private backing), somehow constitutes “government censorship” is simply not true. It is an oversimplified analysis that needs far more nuance.

If Chancellor Dirks, or California Governor Jerry Brown, or some other formal State “authority” had declared “We just don’t like people like Ann Coulter, and we aren’t allowing her to have a platform here”, I would agree with the ACLU’s stance. That would have been a clear case of a government institution or its agents restricting the expression of ideas and thoughts, and that would have been unconstitutional – irrespective of how hateful those ideas and thoughts might be.

But that isn’t what happened. Imagine if you were a parent with a child attending UC-Berkeley, and there was a huge demonstration where people were injured as a result of a speaker that was scheduled at the campus. If the university had not done everything within their power to avoid such an environment or stop such protests from occurring, an injured child would draw a huge lawsuit. Hell, in today’s grotesquely litigious society, even just the chance of injury could potentially draw a lawsuit that would be hard to defend against, given recent events.


Anti-Nazi protester at Berkeley | Photo credit: The Independent

And that’s really what happened. It wasn’t the government or UC-Berkeley that censored Ann Coulter, or Milo Snuffalumpagus, or any of the multitude of white supremacists, Nazi sympathizers, and Hate Speech apologists who support and/or show up to these events, claiming protection of the 1st Amendment between Tweets unironically calling others “special snowflakes” in need of “safe spaces” – it was the public who shut it down. Thousands of people descended on the campus to protest even the very existence of a person like Milo – the protest of Berkeley allowing him to speak was secondary.

Without going into yet another rant on why a nonviolent protest isn’t effective unless it’s understood that the protests are remaining nonviolent by choice and not by necessity, the previous Berkeley protests were a message – not to UC-Berkeley, but to those who would use “protected” platforms to spew vile, venomous rhetoric. Because where many people are so utterly and disastrously mistaken is in their understanding of the scope of the 1st Amendment.

The 1st Amendment protects from government censorship – it does not protect from getting shut down by society. That’s a completely different beast.

The ACLU’s statement on the Coulter situation went even further. The remainder of that poorly-framed justification actually helps us to understand exactly where they missed the mark, but only if we think critically about it, and not just with “but muh Free Speech!!!” reactions:

“For the future of our democracy, we must protect bigoted speech from government censorship. On college campuses, that means that the best way to combat hateful speech is through counter-speech, vigorous and creative protest, and debate, not threats of violence or censorship.”

Here is where we vehemently stray from actual understanding of what the 1st Amendment does, and, moreover, what it should and should not do. The ACLU is claiming that to defeat Hate Speech, we must allow it to exist and even thrive, but to then combat it with “counter-speech”. (Would that be “Love Speech” then?) But, for all of their good intentions, they are wrong.

The 1st Amendment is not a positive one, in that it does not say what is allowed. It is a negative one, in that it strips from the government the ability of this particular sort of abuse of power. And it goes no further than that. Nowhere in the 1st Amendment does it say “Society shall accept anything anybody says without recourse, and every person can say whatever they want without consequence.” The exact wording of the 1st Amendment is very clear:

Congress shall make no law… abridging the freedom of speech.”

It doesn’t get any more clear cut than that. It also doesn’t get any more clear cut in the fact that the 1st Amendment doesn’t say a damn thing about a group of people who are not Congress taking it upon themselves to abridge speech that is socially reprehensible.

“Ok, but then you get into subjective meanings, and what one person thinks is unacceptable might be ok to another.” That would be a fine argument if we were discussing something mundane – whether or not pineapple goes on pizza, for instance – or even something a little more pressing, like environmental protections. In those cases, the ideas being presented on one side might be unacceptable to the other. But we aren’t talking about those things.

We are talking about the spread of fascism. That’s a little different.

This idea that we should “protect” the speech of those who would see the rights of others stripped, who openly advocate for genocide, who dream of resegregation as a way to create some idealistic white utopia, is ridiculous. And make no mistake, Ann Coulter wears her White Supremacist views on her sleeve – she once referred to the white majority in the US as “compassionate overlords”, I shit you not. That kind of speech, when allowed to take root and spread in the way we have seen in the past couple of years, ends up with a lot of corpses. A lot.

White Supremacy flyer found at Emerson College | Photo credit:


Here is where the ACLU loses touch. In their staunch defense of a far too broad interpretation of the 1st Amendment, they make this one fatal flaw – they assume that fascists are reasonable and that rational discourse is enough to convince them of the error of their ways. Apparently, they have never talked to a Republican – often times even they are too bullheaded to be reasoned with, but we are supposed to engage fascists with rational discourse? By claiming that “the best way to combat hateful speech is through counter-speech, vigorous and creative protest, and debate” is to show a complete disregard for history, or even for current global affairs.

Golden Dawn currently holds several seats in the Greek Hellenic Parliament, and even a few in the European Parliament. Debate and counter-speech did nothing to stop that, and with Dawn’s obvious collusion with police, and even elected Party members calling for civil war, any “vigorous and creative protest” in Athens is painted in a negative light. Marine Le Pen is getting closer to winning the French Presidency – though the media will tell you otherwise, but let’s not forget that the media was also certain of the impending results of the US election until November 9. And, speaking of that, if one wishes to see the effects of “counter-speech” and “debate” on hateful, racist, xenophobic rhetoric that sees no restriction, one need only look at the Cheeto Mussolini who currently occupies the Oval Office.

We can even ignore the fact that the ACLU has not always been such a shining example of Protection for All Speech. Despite the alleged political affiliations of a few founding ACLU members, which they deny, in 1940 they barred anybody associated with the Communist Party from holding any leadership positions – ostensibly because of the German-Russian non-aggression pact – and held that position even as the USSR bore the brunt of the Nazi death machine and were responsible for ¾ of German losses.

“Raising a flag over the Reichstag” | Photo Credit: Yevgeny Khaldei, May 2, 1945

Forgetting that historical hypocrisy, the idea that all speech should be protected at all costs shows an absurd misunderstanding of the historical rise of the fascist powers that were fought and ultimately defeated by the Red Army in these times.

Nazi Germany, to a certain degree, came to pass because of liberalism. The thoughts and views espoused by Hitler were highly contested, with plenty of counter-speech and rigorous debate in the halls of government in Berlin. But, the hateful rhetoric appealed to many Germans who were struggling in the post-WWI era, and they were offered a scapegoat. Reason and debate were ineffective – and the “protected speech” of the Nazi Party gave them the ability to gain just enough power to take the rest by force. Fascism does not respect free speech and democracy, it uses free speech and democracy to destroy free speech and democracy.

Now, here we are. The French have been offered a scapegoat for their problems – Muslims. Germans? Muslims. Greece? Muslims. Hell, depending on where you are, even Muslims are using other Muslims as scapegoats. And here in America – well, Muslims, Mexicans, and Asians. And Black people, as usual. And now Canadians, apparently. And these voices screaming about “the other” are not only getting louder, they are getting more numerous – and they are getting power in the US government.

We’ve seen this before. And you can debate all you want to – trust me, I’ve tried – but extreme fascists aren’t reasonable people. Far-right racists either aren’t capable of debate, or flat-out refuse. 99% of ideology is worth discussing, even if you are strongly opposed to it on either side. But fascism is not debatable.

It reminds me of the Stokely Carmicheal quote where he spoke about Martin Luther King, Jr.’s unwavering commitment to remain nonviolent:

“Dr. King’s policy was that nonviolence would achieve the gains for black people in the United States. His major assumption was that if you are nonviolent, if you suffer, your opponent will see your suffering and will be moved to change his heart. That’s very good. He only made one fallacious assumption: In order for nonviolence to work, your opponent must have a conscience. The United States has none.”

Fascists do not possess a conscience. For them, the ends are far more important than the means. And the end results in eradication of… well, whoever they decide isn’t worthy of living, so basically, anybody who isn’t white and Christian. Allowing them unrestricted access to a platform where their venomous speech can influence and poison the minds of others is not only foolish, it is socially irresponsible. And there really isn’t a debate to be had.

Look, I believe that protecting speech is important, including the ideas and views that I disagree with. I believe that people should be free to speak without fear of being limited or restricted in any way. But there is also a line that must be drawn. You may ask “But who gets to draw that line, you?” Unfortunately, no. But I know where I’d draw it. If you are advocating the removal, from country or planet, of a certain group of people based on skin tone or religious beliefs, we are going to have a serious problem. And that’s pretty much it. Everything else is fair game – but bigotry and the advocacy of violence against those different from you are unacceptable.

And, before you try to hand me the whole “But they aren’t advocating violence, just white cultural pride/intense nationalism”, there are two things you must realize: 1) That, in and of itself, has violent undertones, and if you don’t believe me, you haven’t been paying attention; 2) You literally just defended Nazis. You know how you feel inside right now? That dirty feeling? Not even bleach will get rid of that. But you know what will? Understanding that protesting Hate Speech is a form of speech that is actually worth defending, instead of demonizing it in favor of defending inherently violent rhetoric and then crying about “Muh Freeze Peach!!!” when people very vocally oppose it.

Or maybe you like how you feel when you defend Nazis. Maybe you think you are morally superior. Hell, even the cops are defending Nazis, and antagonizing AntiFa protesters to paint a narrative. You can take the moral high ground all you want to. Talk about it, and hold hands with that cop while you do it. Discuss things, and actually listen to what a Nazi has to say in between licking that boot to a mirror shine. Look that Nazi square in his scummy face and hug the hate right out of him. Ask him if it was because his father was abusive. Find out his fears, and his hopes and dreams. Let him know how much you care.

And then let me know how that works out for you.

Richard Waite is the author and producer of A Mostly Accurate View.


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