In backing alt-right, ACLU embraces role in defending ‘groups we detest’

That philosophy came into renewed focus last week, as the organization went to court to fight for the right of white nationalists to hold a rally at Emancipation Park in Charlottesville, Va.

But the episode is likely to be remembered less for the constitutional principle than for its violent toll: brawls, ugly confrontations and the death of a 32-year-old woman.

“I won’t be a fig leaf for Nazis,” a member of the ACLU of Virginia board, Waldo Jaquith, posted on Twitter, announcing that he was resigning from the organization. Among his parting messages to the organization was, “Don’t defend Nazis to allow them to kill people.”

This year has been a banner one for the civil liberties group, which is expected by some on the left to serve as a legal bulwark against some of the Trump administration’s policies. Indeed, the ACLU helped secure the first court ruling against the travel ban.

Membership in the group has almost quadrupled, and donations online have reached $83 million since the election, when, in a typical period, about $5 million or less might be expected, a spokeswoman for the ACLU, Stacy Sullivan, said.

But the group’s defense of the Charlottesville rally has crystallized a recurring challenge for the organization: how to pursue its First Amendment advocacy, even for hate-based groups, without alienating its supporters.

It has seen a backlash on social media after the violence in Charlottesville. Even Gov. Terry McAuliffe of Virginia asserted that because of the ACLU’s intervention, the rally was unwisely held downtown where it “became a powder keg.”

Sullivan acknowledged that the organization was aware of “a lot of threats” on social media of people saying they would drop their membership, although neither she nor the group’s executive director, Anthony D. Romero, would provide more details.

And with numerous “alt-right” rallies scheduled in the coming days and weeks, the ACLU also faces the question of how to respond to the next case involving a white nationalist rally that local authorities try to block.

Another potential First Amendment showdown in Texas already looms. Citing safety concerns, Texas A&M on Monday canceled a white nationalist rally scheduled for Sept. 11. The rally organizer, Preston Wiginton, told the Texas Tribune he might sue and he might seek the ACLU’s help.

Romero, the ACLU’s executive director, said in an interview this week that the group would remain committed to its free speech advocacy. “This is not a new juncture for the ACLU,” he said. “We have a longstanding history of defending the rights of groups we detest and with whom we fundamentally disagree.”

Even so, in the first months of the Trump presidency, the ACLU seemed to be more cautious about which fights it would embrace. It stayed uncharacteristically quiet when the University of California, Berkeley, canceled speeches by two right-wing writers and provocateurs, Milo Yiannopoulos and Ann Coulter, earlier this year, issuing statements and Twitter messages, mainly after the controversy had passed. And when a federal judge in April weighed whether Richard Spencer, a leader of the so-called alt-right, could hold an event at a public university in Alabama, the ACLU was absent from the case.

The civil liberties union’s apparent absence from some of these disputes prompted questions, even criticism, about the organization’s continuing commitment to fighting old-fashioned free speech cases for unpopular clients.

The ACLU has long maintained that defending the First Amendment rights of white supremacists does not only vindicate constitutional rights where they are under attack, but also protects speech rights for all groups. Social justice and equality, the group believes, are best served with more speech, on all sides, and by confronting hateful ideas head-on, rather than suppressing them.

But some on the left argue that freedom of speech should not extend to hate speech. Under this view, defending the free speech rights of racists does not, in the long run, strengthen the civil liberties of minority groups.

Those divisions were on display within the organization last week, when the ACLU took on lawsuits in support of two figures associated with the alt right. In one case, the ACLU filed a lawsuit against the Washington Metro system, for, among other things, removing advertisements for Yiannopoulos’ book “Dangerous” from subway stations and cars.

Chase Strangio, an ACLU lawyer best known for representing Chelsea Manning, expressed unhappiness with the decision, using Twitter to criticize the organization’s free-speech philosophy. “The idea that the speech of Black Lives Matter is being defended through the representation of someone like Milo is a farce in my view.”

The organization’s Virginia affiliate then brought a lawsuit representing a Charlottesville man who was organizing a rally to protest the removal of a statue of the Confederate general Robert E. Lee. The City Council had changed the park’s name from Lee Park to Emancipation Park in June. After initially granting him a permit to hold the rally at the park, the city tried to move it to a larger park, about a mile away.

The ACLU argued that the rally organizers ought to be able to stage the event at the park associated with Lee — where the symbolism was greatest and the meaning of the rally clearest. The city argued that for safety reasons the protest should be moved to the other site. A federal judge sided with the ACLU.

That led at least a few people to say the ACLU bore some responsibility for the resulting violence. “If we hadn’t intervened, the event would have been held a mile away, far from downtown, and three people would be alive,” Jaquith, the Virginia board member, posted on Twitter.

Romero rejected that view. He placed some of the responsibility for the violence on local authorities, saying they had taken a hands-off approach to policing the event, even as it devolved into violence.

“I want to be clear, the violence of this weekend was not caused by our defense of the First Amendment,” he said, noting that a federal judge had sided with the ACLU.

Romero expressed concern that, after Charlottesville, local authorities around the country would be tempted to stop extremist groups from holding rallies. “It would be a very sorry day for our democracy if government officials insisted on denying any and all protests under the guise that violence might erupt,” Romero said.

David A. Goldberger, a former ACLU lawyer who represented the neo-Nazis in the Skokie case, said that Charlottesville would quite likely pose a test for the group, not unlike the Skokie case four decades ago.

The neo-Nazis who planned to march in Skokie were never expected to number more than a few dozen. So marginal and universally despised, they struggled to muster numbers beyond that. (The march never occurred; the group held a demonstration in Chicago’s Marquette Park in 1978.)

ACLU membership dropped by 60,000 from 1973 to 1978, and by 1979, the group was facing a $500,000 deficit. Yet it seems possible that the far right of today could prove more divisive for the ACLU than the neo-Nazis and Skokie ever were.

White nationalists over the last two years have made their presence felt in the national discourse more than they had in decades. That is partly because the far right has been emboldened by President Donald Trump, who has been reluctant to condemn white nationalists.

Meanwhile, much of the newfound interest in the ACLU has been driven by opposition to the president’s policies.

As future cases involving the free speech rights of white supremacists surface, it remains to be seen how the events in Charlottesville may affect the ACLU’s response.

“The death may make people have second thoughts — I surely hope not,” Goldberger said. “This is a real crossroads for the ACLU, and I think it’s going to choose the right road.”