New York Times op-ed urges the ACLU to stop defending odious people’s First Amendment rights

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.

**********

Parks’s article has now garnered 2189 comments at the Times, and it seems that most of them aren’t on her side.

107 Comments

  1. yossarian
    Posted August 18, 2017 at 9:03 am | Permalink

    It’s worth looking at the work of organisations such as Article 19 for example,

    which defends free expression (and it’s counterpart: access to information) for all while recognising there’s also a positive obligation “on states to actively ensure that obstacles to free expression are removed. Examples of ensuring free expression include: ensuring that minorities can be heard; …”

    Article 19 takes an explicit Human Rights approach (it’s name comes from the relevant article of the UDHR) which can in places be distinguished from a First Amendment approach. But I still think highlights how it’s possible – and right – to deal with some of Park’s concerns while protecting the universal right. The key being, as in the extract above, the talk of states’ (in the international meaning of ‘countries’) obligations as well as citizens’ rights.

    • Torbjörn Larsson
      Posted August 18, 2017 at 10:05 am | Permalink

      That is interesting. I did not update before composing and posting a comment, and I touch on the UDHR as well – and get the same conclusion, I think. “Seems either case is consistent with the UN Declaration of Human Rights. [At least Sweden’s governments seem to claim this, and I am unsure if it has been challenged.]” Now that you mention it, I think that is a commonly seen argument behind these minority protections as it were, ‘the might of the majority does not make it automatically right’. The same goes for whistle blowing free speech vs privacy protection, et cetera; must balance the [UD]HRs.

  2. Craw
    Posted August 18, 2017 at 9:06 am | Permalink

    I am holding off on donating to the ACLU until I see how this plays out. If they stand up for speech they will get my stipend this year. I am frankly worried though that they won’t.

    • fizziks
      Posted August 18, 2017 at 8:16 pm | Permalink

      FWIW I stopped donating to the ACLU several years ago when they became obsessed with the US not walking out on Ahmadinejad’s speeches at the UN. It seemed to be to be an extremely bizarre issue for the ACLU to get involved in, and after pestering them for about a year the explanation that I got was that ‘they amended their charter to focus on social justice worldwide.’ Still not seeing the connection between that and Ahmadinejad, so I concluded that they have become regressive left.

  3. Graham Martin-Royle
    Posted August 18, 2017 at 9:28 am | Permalink

    Free speech means free speech for everyone, including those you disagree with.

    Civil rights means civil rights for everyone, including those you disagree with.

    If you agree to restricting the rights and speech of others then you must also accept that one day your rights and speech may also be restricted.

    • Kevin
      Posted August 18, 2017 at 10:05 am | Permalink

      Well said.

      • jwthomas
        Posted August 18, 2017 at 12:05 pm | Permalink

        The ACLU and the public library system are among the few institutions left in this country that still value humans more than money. Both need to be supported wholeheartedly.

        • Ken Kukec
          Posted August 18, 2017 at 12:29 pm | Permalink

          Yeah, no justice Dewey Decimal, no peace! 🙂

    • Posted August 18, 2017 at 2:27 pm | Permalink

      Indeed. The only free speech that needs protection is that which differs from the opinions of the majority: Stuff we don’t like.

      Stuff we like? That doesn’t need protection.

      The free speech provision of Amdt. 1 and their interpretation by the SCOTUS exists to prevent the majority from imposing a uniform view and thereby preventing progress.

    • Posted August 18, 2017 at 3:20 pm | Permalink

      “If you believe in freedom of speech, you believe in freedom of speech for views you don’t like. Goebbels was in favor of freedom of speech for views he liked. So was Stalin. If you’re in favor of freedom of speech, that means you’re in favor of freedom of speech precisely for views you despise.”

      — Noam Chomsky, Manufacturing Consent: Noam Chomsky and the Media (1992)

      /@

  4. Randy schenck
    Posted August 18, 2017 at 9:30 am | Permalink

    Parks is going down that rat hole where you ask, who gets to decide who gets the right. I do think there is one other tiny bit of the first amendment that needs a fix and that would be that last bit – “Petition the government for a redress of grievances.” This should be interpreted to mean individuals and not companies, or corporations or any massing of corporations. This is the tiny threat that has lead to the worst possible situation in this country that single-handily removed function from our so-called democracy and corrupted the whole idea of liberty or your vote. Known today simply as K-Street. This and the public financing of our elections are the only things that will begin to save it.

    • P. Puk
      Posted August 18, 2017 at 9:38 am | Permalink

      Park is an SJW which is to say that she is the arbiter for us all. That is to say, she is right on everything and anyone with contesting views or opinions is the enemy who should be silenced.

      Sorry about the ad hominem but the motivations of the speaker are often as important as the speech when we try to decipher the message.

      • dabertini
        Posted August 18, 2017 at 10:11 am | Permalink

        And, more importantly, she has a JD and doesn’t understand the first amendment?! That would be equivalent to PCC(E) not understanding natural selection.

        • phoffman56
          Posted August 18, 2017 at 10:50 am | Permalink

          “..this approach IMPLIES that the country is on a level playing field.”

          Her difficulty, in comprehending any genuine meaning of the word “implies”, is an indication of exactly that failure of her education to overcome her emotions. There are a number of subtle differences between those meanings, in logic, law and mathematics, not a single one of which makes her statement even close to being true. Perhaps returning to one of her illustrious educational institutions and taking a few basic courses (again?) in those subjects should be recommended.

  5. Historian
    Posted August 18, 2017 at 9:32 am | Permalink

    “Perhaps most painful, it also redistributes some of the substantial funds the organization has received to fight white supremacy toward defending that cause.”

    Park is wrong here. The ACLU is not defending that cause. It is not claiming that the cause is just or worthy. It is simply defending the right of that cause to present its views. There is a big difference here and Park should know it.

    • Michiel
      Posted August 18, 2017 at 10:07 am | Permalink

      Yes, that immediately stood out to me as well. I find it quite stunning thata person with such credentials could make such a “mistake” or mischaracterisation so easily.

      • Carey Haug
        Posted August 18, 2017 at 10:31 am | Permalink

        Once you have converted to the SJW religion, the highest and only true good is fighting racism and oppression. All other goals and missions are unworthy and can be set aside.

        I don’t personally agree with Park. I think she is brainwashed in the same way as devoted religious practitioners.

        • Simon
          Posted August 18, 2017 at 4:26 pm | Permalink

          I don’t think so. SJWs, as a general rule, are in the business of inventing racism and oppression. Although there may be a number of different flavours of SJW, the kind I see most often are more about creating justifications for removing legal and moral protections from people they resent.

      • Posted August 18, 2017 at 11:49 am | Permalink

        I believe strongy in social justice, but a common pattern of the SJW type is lose some basic skills in critical thinking and objectivity.

        • darrelle
          Posted August 18, 2017 at 1:11 pm | Permalink

          Yeah. I’ve always thought that the label Social Justice Warrior is unfortunate. Fighting (non-violently) for social justice is a good thing. It’s the doing it so wrong that you are hard to distinguish from the bad guys that is the problem. I’d prefer a label that reflects that rather than using one that actually aligns with the opinion of those that think that social justice is a bad thing.

          Social Justice Betrayers?

          • Posted August 18, 2017 at 3:22 pm | Permalink

            “Social Justice Ideologues”?

            Or, keeping the “SJW” acronym, “Social Justice Wankers”?

            /@

            • infiniteimprobabilit
              Posted August 18, 2017 at 6:05 pm | Permalink

              I firmly believe in social justice**. So I find the term ‘SJW’ unfortunate for that reason.

              Maybe just ‘Wankers’ ? Too broad?

              cr
              (** That’s as a concept, the sort that millions of socialists and communists fought for and, usually, didn’t quite achieve; not the skewed version embraced by, errm, SJW’s).

    • Heather Hastie
      Posted August 18, 2017 at 1:24 pm | Permalink

      Exactly. Failing to get that difference is where her whole piece fails imo.

    • Posted August 18, 2017 at 1:25 pm | Permalink

      The only way I can make sense out of that is that she’s basically saying, “People give money to the ACLU in the mistaken belief that they are an organization that fights white supremacy, and the ACLU should use that money only in the way the donor intended.”

  6. Posted August 18, 2017 at 9:44 am | Permalink

    Not everyone. The ACLU has just announced it will no longer defend protest groups marching with firearms.

    • John Taylor
      Posted August 18, 2017 at 9:51 am | Permalink

      That sounds reasonable. Marching around with firearms has an intimidating effect.

    • Jack Treml
      Posted August 18, 2017 at 9:56 am | Permalink

      This gets into the weeds on the ACLU’s position on the second amendment (https://www.aclu.org/other/second-amendment) but seems reasonably in line with their mission. Thoughts?

      • Posted August 18, 2017 at 10:05 am | Permalink

        Okay with it, as long as the ACLU does not differentiate on the content of the speech. The ACLU should decline to represent both White Nationalists and Antifa who march with guns.

        • Jack Treml
          Posted August 18, 2017 at 10:13 am | Permalink

          That’s entirely fair and consistent. I completely agree.

        • Posted August 18, 2017 at 11:21 am | Permalink

          I think I agree as well! (I have to ponder these things.) But of course the courts have interpreted the Second Amendment (wrongly, in my view) to allow private citizens in some places to carry guns around freely, and that’s the standing law. But the ACLU isn’t discriminating against groups if it just said, ‘You can’t have weapons in a demonstrations or we won’t defend you.” After all, they do all their defending for free.

          What about sticks and clubs, though? I find those intimidating, too!

          And with “closed carry” laws, your guns aren’t even on display, but they’re still there and can be used.

          • nicky
            Posted August 18, 2017 at 1:35 pm | Permalink

            Jerry, sticks and clubs can be intimidating, and can indeed cause a lot of harm.
            However, having dealt with a lot of trauma, I can tell you there is no comparison. The energy in firearms, the damage caused, is comparably so major, and I’m not even talking about ‘high velocity’ ‘assault’ weapons, that sticks , clubs, knives etc, pale into near insignificance.
            Fire-arms are a class apart, and the automatic high velocity ones even one more.
            I totally agree with you that the present interpretation of the second amendment in the US is a fallacy (and I’d add: a crime and a felony).

      • Posted August 18, 2017 at 11:18 am | Permalink

        Expand it to include bike locks.

      • Posted August 18, 2017 at 11:53 am | Permalink

        I wish it could be the case that the right to carry guns could be suspended in the case of participating in a protest or counter-protest. The right to speech would not be impeded after all.

        • tomh
          Posted August 18, 2017 at 12:07 pm | Permalink

          It all depends on the laws of the state. At the upcoming White Power rally (that they’re calling a “Free Speech rally) all weapons, including sticks, are prohibited per the permit.

    • John Taylor
      Posted August 18, 2017 at 10:11 am | Permalink

      Do you think marching with firearms is a good or bad thing? How do you feel about the ACLU’s announcement?

      I think protesting while armed is not a good idea.

      • John Taylor
        Posted August 18, 2017 at 10:12 am | Permalink

        Already answered. My page was not refreshed.

      • Posted August 18, 2017 at 10:16 am | Permalink

        What if you fear for your life because of what you are protesting and think the local authorities will not protect you?

        • Posted August 18, 2017 at 10:35 am | Permalink

          You carry a firearm either with the intention of intimidating people (in which case you are a jerk), or with the intention of actually killing someone. Speaking for myself, neither scenario applies to me, so I will never carry a firearm to a protest. If “the local authorities will not protect you”, then I think you should protest against them.

          • Posted August 18, 2017 at 10:39 am | Permalink

            Suppose you were marching for civil rights in Selma, circa 1965.

            • Ken Kukec
              Posted August 18, 2017 at 11:44 am | Permalink

              The civil-rights marchers in Selma ’65 were committed to Gandhian non-violence. They steadfastly refused to defend themselves with fists, let alone guns.

              If you’d like video evidence for it, you can watch a film of what happened to them when they marched out of Selma across the Edmund-Pettus bridge on Blood Sunday here.

              Had those marchers armed themselves with guns, their cause would have been set back a century.

              • Posted August 18, 2017 at 11:52 am | Permalink

                Yes, historically that is true. My point was to illustrate to Peter N why a protester might reasonably fear for his or her safety. Not everyone is as brave as the civil rights protesters of the sixties.

            • John Taylor
              Posted August 18, 2017 at 12:20 pm | Permalink

              I think things would have gotten very ugly very quickly. The other side would probably have committed a masacre and claimed they were justified.

        • Taz
          Posted August 18, 2017 at 10:43 am | Permalink

          Interesting question. Historically, that describes the civil rights marches of the 50s and 60s. Would those protests have been more or less effective if the marchers had been heavily armed?

          • Posted August 18, 2017 at 11:24 am | Permalink

            Certainly less effective. It was the sight of unarmed protestors being beaten and having fire hoses and dogs turned on them that made America wake up to racist brutality.

            • Posted August 18, 2017 at 11:39 am | Permalink

              Absolutely. I was very young but I still remember how deeply affected my parents and the community was. It was the example of those civil rights marchers that really woke people up; even though I was too young to understand, I remember.

              Plus, there WERE armed groups or groups who advocated violence at the time who also fought for civil rights. But no one attributes the successes of the Civil Rights Movement to them. Those who supported the successful non-violent approaches (here and elsewhere) are seen universally today as exemplars of humanity while those who used or advocated violence are reviled.

              There is a very important lesson in this that the anti-racists today – who are fighting for just and critically important causes- can learn from them. Resistance without violence has been shown time and time again to be the most effective way to bring about broad and long term social change.

              • Posted August 18, 2017 at 11:57 am | Permalink

                +1! A point that needs to be made often. Besides being wrong, their trend toward violence will only raise the cred of the neo-nazis whose heads are bloodied.

        • Posted August 18, 2017 at 11:19 am | Permalink

          What if openly carrying a firearm is intended as a demonstration of support for open-carry laws?

          • Ken Kukec
            Posted August 18, 2017 at 11:48 am | Permalink

            Guess they’ll have to muddle along with the assistance of the ACLU. Doesn’t mean they’re being denied the right to protest.

            • Ken Kukec
              Posted August 18, 2017 at 11:49 am | Permalink

              “without”

    • Kevin
      Posted August 18, 2017 at 10:41 am | Permalink

      But if they do not use the firearms? That seems pointless. I am antigun. If I were King there would no guns in the hands of any citizens. But if someone brings a firearm to a protest and does not use it how is that different than being at a protest with your vehicle?

      I am pretty sure I could kill people with my bicycle. Is ACLU going to no longer defend bike riding protesters?

      • Posted August 18, 2017 at 11:59 am | Permalink

        There is only one purpose for a firearm and carrying one can mean only one thing – that you are willing to kill another.

        Bicycles and cars are not normally used as weapons. In fact, they rarely are.

        That is the difference.

    • Posted August 18, 2017 at 3:24 pm | Permalink

      People not peaceably assembling!

      /@

  7. Jack Treml
    Posted August 18, 2017 at 9:50 am | Permalink

    I, too, was taken aback by the ACLU’s position on this. Most troubling to me is that this places the ACLU in a position of choosing sides of arguments (regardless of means.)
    In practice, the union has only so much money to fund any given case and will always have to make choices about who will get their support, but I always understood this to be based on which case was the most winnable and able to clearly represent the union’s position on freedom.
    The ACLU is getting it wrong here and should re-examine its own mission before committing to this course.
    Thanks for bringing this up, Jerry. I suggest all that care about this issue should write to the ACLU and make our voices heard..

    • Mike
      Posted August 19, 2017 at 10:15 am | Permalink

      I disagree, this is a perfect exemplar of the reason for the 1st amendment.

  8. Posted August 18, 2017 at 9:51 am | Permalink

    The level playing field IS the First Amendment.

  9. Torbjörn Larsson
    Posted August 18, 2017 at 9:56 am | Permalink

    Besides the specific problems with the US constitution, this makes no sense. You have no hate speech laws or you have them, and hopefully your set of laws were instituted under democratic rule. Seems either case is consistent with the UN Declaration of Human Rights. [At least Sweden’s governments seem to claim this, and I am unsure if it has been challenged.] And whether or not you have them or not, I see no reason to change unless the majority wants it. We have no good reason to support either of the options if we want a happier society: as so often data is lacking (I take it).

    Park’s suggestion is non-democratic and lawless. Perhaps no wonder that the comments goes against here in the mean (but I haven’t checked them).

  10. Dean Reimer
    Posted August 18, 2017 at 10:06 am | Permalink

    As I commented on the NYT site, let other organizations worry about leveling the free speech playing field. The ACLU needs to stick to its absolutist guns.

    • stephajl
      Posted August 18, 2017 at 12:21 pm | Permalink

      I agree 100%. Levelling the playing field is a worthy cause — underpinning the notion of ‘a rising tide lifting all boats’ is an assumption that everyone has a boat (many do not) — but field-levelling is *not*, and never has been, the ACLU’s mandate. They should stick to that mandate (especially given their impressive track record to date!)
      If Park wishes to establish her own group to focus on amplifying certain voices, she is well within her rights to do so.
      This growing trend of dictating behaviour to other people and orgs is something I find highly objectionable.

  11. BJ
    Posted August 18, 2017 at 10:19 am | Permalink

    “By insisting on a narrow reading of the First Amendment, the organization provides free legal support to hate-based causes.”

    People like Ms. Park may think they can defend hatred by those they wish to protect while taking away the rights of others to express their own, but they have abandoned foresight for emotion. What will they say when the speech of extremist regressives, the Nation of Islam, the BDS movement, is shut down? That *their* hate is good? *Their* hate is right? *Their* hate is just? Such answers will not prove sufficient. Do people like Park not understand that there is a monster in the White House right now? If they do know it, do they think that somehow, once they pass the laws they so desperately want, those laws will never be used against them because such laws will immediately cease the electing of their opponents? How do they cling to the erroneous belief that only people who support their precarious view of hate speech will ever hold influential office?

    Even if they do manage the entirely unmanageable task of keeping their enemies out of office forever, how will they keep the courts from applying their laws equally?

    The ACLU has defended the Constitutional rights of everyone in the past not just because it is wrong to discriminate in who is afforded human rights based on skin color or view, but because the organization rightly understood that curtailing the rights of some means the eventual curtailing of rights for all. Once the first brick is removed from the Constitutional wall, the rest will surely crumble.

    Indeed, a good education does not make one a rational supporter of Constitutional rights; apparently, it doesn’t even give one the ability to properly assess the consequences of one’s idiocy.

    Through compassion, I know that no human being, however loathsome, should be denied their human rights. Through pragmatism, I know that human rights *cannot* be denied to even the most detestable among us, lest we all suffer the consequences.

    • Simon
      Posted August 18, 2017 at 5:43 pm | Permalink

      “Do people like Park not understand that there is a monster in the White House right now.”

      The more I see of Trump and the more I examine the distortion in the media coverage of him, the less I’m inclined to regard him as anything like a monster. The difference between him and many of his predecessors is one of polish and presentation AFAIAC. Reading Christopher Hitchens on Bill Clinton leaves me wondering how on earth Trump can be regarded as morally lacking in comparison.

      That is all tangential to my point, which is that while I agree with the principle of unbiased application of the right to free speech, I find it disturbing that this is often stated with the assumption that the extreme Right are the unworthy benefactors of this necessary evil. As Jordan Peterson. of whom I’m a big fan, frequently points out, the battle against evil is an internal one. I find the extreme Left to be more dangerous than the Right precisely because they are so convinced of their righteousness that they can so easily dehumanise others. We see this in the blind eye turned to the violence of the anrcho-communist Antifa, BLM and the Black Bloc. They have committed far more serious unprovoked violence than the Right and by no means limited their attacks to the far Right. It is the belief in the righteousness of their “side” that the predominantly liberal media ignore or downplay violence committed against the Right. They seem to have little interest in reporting on events like students running around campus at Evergreen with baseball bats crushing WrongThink. The most consulted source of information on the planet, Google, is now manipulating search results to favour their political bias and slowly strangling off-message Youtubers. I don’t think it is an overstatement to describe this as Orwellian and a stark demonstration of why restrictions on free speech are to be avoided.

      • BJ
        Posted August 19, 2017 at 7:31 am | Permalink

        “That is all tangential to my point, which is that while I agree with the principle of unbiased application of the right to free speech, I find it disturbing that this is often stated with the assumption that the extreme Right are the unworthy benefactors of this necessary evil.”

        Oh, I don’t believe that at all, and I pointed out in my comment the hate and bigotry on the left that enjoys the protection of free speech; however, for people like Park and most of the people who wish to limit speech now (read: many on the left), I think the way I put it is a solid argument. And I enjoy Peterson’s work.

        I think you make a very valid point about Trump. I should avoid words like “monster” in the future. If Trump is a monster, many of his predecessors from both sides were monsters as well, but far better at hiding it. I don’t believe that destructive politicians are the sole province of the right at all.

        And I agree with you about free speech on the internet, as I think that may end up as the most significant free speech issue of the coming years, and it’s not looking good. Facebook has been even more Orwellian on this front than Google, and it scares the shit out of me.

  12. nay
    Posted August 18, 2017 at 10:25 am | Permalink

    “It’s conception of this right is unduly NARROW” – ??? That first line already raised my logic detector. My first impression of the ACLU was a news article that it had taken up the defense of a neo-nazi group seeking a parade permit somewhere in the mid-West. That told me they would defend anyone’s free speech regardless how hateful. My reaction was “um, okay”. You either support free speech or you don’t; free speech only for those you agree with is the unduly narrow thing.

    That said, the only speech that should be banned is in the category of shouting “Fire” in a crowded theater or “let’s go lynch someone” at a rally.

  13. Posted August 18, 2017 at 10:44 am | Permalink

    The issue here is not whether the views expressed are valid, surely; it is about rights. If we don’t all have the same rights, then we don’t really have any rights at all.

  14. tomh
    Posted August 18, 2017 at 10:45 am | Permalink

    The ACLU casts such a wide net supporting free speech that they argued passionately in favor of corporations’ speech rights in Citizens United, to the extent of filing an amicus brief. Their argument that spending unlimited amounts of money by corporations in an electoral campaign is “pure” speech entitled to the highest level of First Amendment protection is where I part ways with them.

    • Posted August 18, 2017 at 11:26 am | Permalink

      Yes, I disagreed with their defense, their, too. But on the whole, I think the ACLU’s actions are quite admirable.

    • Ken Kukec
      Posted August 18, 2017 at 12:17 pm | Permalink

      I disagree with Citizens United vehemently on policy grounds. But if you accept that money in the form of political donations constitutes “speech,” the ACLU’s position is not illogical (if I may damn it with the faintest of praise), and is in keeping with its quasi-absolutist approach.

      • tomh
        Posted August 18, 2017 at 12:52 pm | Permalink

        You also have to accept that, as Mitt Romney put it, “corporations are people, my friend,” and entitled to the same Constitutional protections as individuals. This led to, not just Citizens but Hobby Lobby, granting corporations religious freedom also. In my opinion, the ACLU has much to answer for in supporting the personhood of corporations.

        • Craw
          Posted August 19, 2017 at 8:46 am | Permalink

          This is a historically ignorant comment. Corporations have been treated as persons legally in some aspects for hundreds of years. That is why you can sue them for example. It is false to claim they have all the rights of people, and no court has ever said they do. No corporation has the right of habeus corpus.

    • Filippo
      Posted August 18, 2017 at 3:03 pm | Permalink

      “Their argument that spending unlimited amounts of money by corporations in an electoral campaign is “pure” speech . . . .”

      I should think that investors, so assiduously focused on their self interest in seeking to maximize their return on investment, would have a problem with much such spending, inasmuch (IIRC) that requirement to maximize return has been codified in law. (Re: Dodge brothers v. Henry Ford)

      • Ken Kukec
        Posted August 18, 2017 at 3:22 pm | Permalink

        That pertains to publicly traded corporations; Citizens United applies to privately held corps as well.

        • Filippo
          Posted August 18, 2017 at 3:31 pm | Permalink

          “That pertains to publicly traded corporations; Citizens United applies to privately held corps as well.”

          Congenially acknowledged.

          Just my opinion of course, and perhaps my obtuse mind is missing something, but, if the corporation is privately held, why don’t the flesh-and-blood humans who hold it contribute their money as flesh-and-blood humans, versus through the legal fiction known as a corporation?

          Can I “incorporate” my individual flesh-and-blood self, so as to avoid liability as a flesh-and-blood human being?

          • Ken Kukec
            Posted August 18, 2017 at 4:09 pm | Permalink

            I assume it’s due to tax consequences and legal-liability issues — but, then, we’re wandering outside my area of competence.

  15. Taz
    Posted August 18, 2017 at 10:51 am | Permalink

    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.

    This argument bothers me because it seems to equate Nazis and the KKK with the “majority” in general. There are many venues for speech, and it seems to me that in all of them I’m more likely to see the speech of “oppressed minorities” than Nazis.

    • infiniteimprobabilit
      Posted August 18, 2017 at 6:18 pm | Permalink

      One could argue that, in terms of speech, the Nazis are an ‘oppressed minority’, since they get shouted down as soon as they open their mouths.

      Possibly someone should point this out to Ms Park? 😉

      cr
      (Not that I’m sympathising with the Nazis, I hasten to add)

  16. Ken Kukec
    Posted August 18, 2017 at 10:52 am | Permalink

    What Ms. Park and others of her free-speech-limiting ilk fail to recognize is the extent to which the First Amendment, and those (like the ACLU) who fought for it, and the federal courts that upheld it, served as the handmaidens of the minority rights they justly venerate.

    In the early days of the American civil-rights movement, the notion that minority citizens had rights equal to those of white people was every bit the heresy that we right-thinking people consider the ideas of racists to be today, particularly across the states of the former Confederacy. It is by virtue of vigorous First Amendment advocacy in our federal courts that the civil-rights activists battling this old orthodoxy were vouchsafed the right to assemble and to march, the right to speak out publicly, the right to picket and to boycott, and the right to print and distribute their newsletters and pamphlets. Given the rights afforded by the First Amendment, the civil-rights advocates prevailed because their cause was just. But the justness of their cause was not a condition precedent to their being afforded those rights. The First Amendment belongs to us all.

    I believe, as firmly as I believe anything, that the new, post-civil-rights orthodoxy is superior to and more enlightened than the old. But time and history have upset many a man’s fighting faith, and we certainly haven’t achieved the end-stage of enlightenment. It is the genius of our American system that no orthodoxy can ever go unchallenged.

  17. Posted August 18, 2017 at 11:24 am | Permalink

    Critical Race Theory is just marxism with ethnicity replacing socio-economics classes. It is hateful & racist, demonizes entire categories of people, and flat-out conflicts with known science on human nature.

    Sadly, it is a virus that has infected nearly every higher education institution in the land.

    • Ken Kukec
      Posted August 18, 2017 at 12:05 pm | Permalink

      So you think Marxist advocacy should be banned?

      If not, what’s your point? An ad hominem attack on Ms. K.-Sue Park because one of her degrees is in a field you find “hateful & racist”?

      • Craw
        Posted August 19, 2017 at 8:52 am | Permalink

        If Matt had argued that some other censor’s arguments were based in Creationism, and called it a bigoted, hatful theory in contradiction of the known facts would you be raising the same objection?

        • Ken Kukec
          Posted August 19, 2017 at 9:53 am | Permalink

          I like to think so, but feel free to call me out on it if I don’t. 🙂

          And there’s a difference between urging that someone’s arguments have been tainted by that person’s theories, and asserting (as Matt implicitly does above) that someone’s arguments should be ignored merely because that person is somehow associated with a particular school of thought.

  18. Posted August 18, 2017 at 11:27 am | Permalink

    If the ACLU fails to defend right-wing free speech, and a precedent thus gets set in the Supreme Court that erodes the First Amendment’s protections, the precedent thus set will apply to everyone, not just to the right wing. If Park doesn’t think the government would not then use that to their advantage, to suppress the free speech of minorities, she is sadly naive. Her strategy would lead to the loss of free speech rights for everyone, and minorities – as always – would be the ones to suffer the brunt of the consequences.

    • stephajl
      Posted August 18, 2017 at 12:27 pm | Permalink

      Yes, exactly. (We encountered something very similar in Canada).

  19. Alric
    Posted August 18, 2017 at 12:25 pm | Permalink

    Please review Popper’s paradox of intolerance

    https://en.wikipedia.org/wiki/Paradox_of_tolerance

  20. JonLynnHarvey
    Posted August 18, 2017 at 12:38 pm | Permalink

    Cheeses!
    Even if I agreed with Ms. Park, wouldn’t the appropriate title for her piece be that the ACLU’s conception of free speech is unduly broad?
    This borders on being an Orwellian Newspeak-ish redefinition of terms!!

    And what happened to the days when a black lawyer defended the rights of the KKK to not have their membership list subpoenaed by the FBI, because the ACLU defended the NAACP in a similar case 30(+/-) years previously? (This was sometime in the 1980s).

    • Carey
      Posted August 18, 2017 at 2:08 pm | Permalink

      I had trouble understanding that as well. It seems to me that a broad application would mean everyone has free speech rights. A narrow application would mean only non-haters (however you define it) have these rights.

      A level playing field is an important goal, but I don’t think outlawing free speech is an effective way to achieve it. Providing better education and fair policing to minorities would likely have more impact.

  21. Posted August 18, 2017 at 12:42 pm | Permalink

    I agree with everything Jerry says here and applaud his courage in saying it. What I don’t understand is why he should consider it “astounding” that the NY Times would publish the article. The NY Times is the left-wing counterpart to Fox News, more sophisticated and articulate certainly, but no less biased.

    I do agree that it’s “frightening,” however. The blatant ignorance of the rhetoric from the extreme right almost ensures that its effect will be limited to the similarly ignorant and will be countered by more sane arguments from the left. But When the most educated and intelligent people on the left—people like K-Sue Park—start spouting dangerous ideas such as the ones expressed here—well, then we’re in deep trouble.

    I can only hope that Park’s article will spark replies similar to Jerry’s in their letters to the editor, but, given the agenda of the NY Times, I highly doubt they’d publish such letters even if they got some.

    • tomh
      Posted August 18, 2017 at 12:56 pm | Permalink

      I can’t believe anyone thinks the NYT is “left-wing.”

      • Ken Kukec
        Posted August 18, 2017 at 1:15 pm | Permalink

        Or that it’s at all comparable to Fox News. You can carp all you want about its editorial policy, but the NYT has, and always has had, a strict separation between its news and opinion sections.

        Fox News? Sorry, I’m laughing too hard to type.

        • Posted August 18, 2017 at 2:44 pm | Permalink

          I lost whatever remaining respect I had for the Times when they fired public editor Liz Spayd, who had the audacity to even suggest that the paper might have a liberal bias: https://www.nytimes.com/2016/07/24/public-editor/liz-spayd-the-new-york-times-public-editor.html?mcubz=0

          I doubt anything I could say might persuade you, Ken, but if you can stop laughing long enough I call your attention the Times’ recent NEWS articles on Charlottesville (to cite just one example among many) that refer to the neo-Nazis and white supremacists versus the “anti-hate protestors.” Right—anti-hate protestors with assault rifles!

          I have no doubt that The Times genuinely sees itself as justified in using its news reporting to actively oppose Trump rather than present a balanced view, but I sincerely hope that more people like Jerry will call them out when they step over the line.

          • tomh
            Posted August 18, 2017 at 2:58 pm | Permalink

            What you call actively opposing Trump, others call reporting the facts.

            • Posted August 18, 2017 at 4:01 pm | Permalink

              “What you call actively opposing Trump, others call reporting the facts.”

              Exactly my point. Thank you for isolating the problem.

              • tomh
                Posted August 18, 2017 at 4:03 pm | Permalink

                When he lies constantly, should they not report it as lies? Yet some might say that’s actively opposing Trump.

            • Posted August 18, 2017 at 5:29 pm | Permalink

              “When he lies constantly, should they not report it as lies?”

              Absolutely. And on the rare occasion when he tells the truth, they should report it as the truth. And if they don’t know if he’s lying or telling the truth, they should make some effort to find out. That’s what good journalists do.

              A case in point. An August 15 “news” article about Trump’s comments on Charlottesville quotes Trump as saying, “Not all of those people were neo-Nazis, believe me. Not all of those people were white supremacists by any stretch.”

              Now, any respectable journalist would at least raise the question of whether or not Trump’s statement was true and, after investigating, present some evidence for or against. Not the NY Times reporters. The very next sentence reads:

              “He criticized ‘alt-left’ groups that he claimed were ‘very, very violent’ when they sought to confront the white nationalist and neo-Nazi groups that had gathered in Charlottesville.” (Italics mine.)

              So without any evidence whatsoever the Times reporters simply re-state as true what Trump has just claimed to be false. After all, we know that Trump “constantly lies,” so what’s the point of fact-checking?

              This is not “reporting the facts,” it’s actively opposing Trump, and it happens almost daily.

          • Ken Kukec
            Posted August 18, 2017 at 3:53 pm | Permalink

            I’m always open to persuasion, mirandaga. And I’ve always read the Times at arm’s-length, more so now than ever (and not just literally because I’ve gotten a bit farsighted with age).

            With regard to Trump, the Times has had to adjust some its ordinary conventions, since he is a beast of a different sort — a president who lies relentlessly and shamelessly, for one thing. Overall, I think the investigative arm of the Times news division, as well as similar arms of other legacy media (including The Washington Post and The Wall Street Journal), has acquitted itself quite well in the Trump era.

            That’s not to say there aren’t things to complain about, nor to defend their editorial content (which I no longer read as religiously as I used to).

        • BJ
          Posted August 19, 2017 at 7:51 am | Permalink

          The NYT is definitely left wing, but not at extremely so, and certainly not even close to on par with Fox News in its biad. Still, I don’t think that seperation between news and opinion exists as you think it does anymore. For example, several weeks ago, I was reading an article in the Arts & Leisure section about Lena Headey on Game of Thrones. At one point, the writer used the non-word “mansplaining” completely seriously to refer to male fans who come up to her with theories about the show. Since it was men explaining what they thought to a woman, that was the word the writer used, the implication being that these fans were sexist in their actions. The editor thought that the usage was entirely appropriate, when not only should it not be used in such a context, but should not be in a serious news article at all.

          I have had many such encounters with their articles over the last couple of years (that, as a reader of nearly twenty years, is the time frame during which I’ve seen this transformation occur), and I recently ended my subscription because I could no longer stand the bias that has crept into their news pages, from leaving out crucial parts of stories to the language used to report them.

          • tomh
            Posted August 19, 2017 at 8:43 am | Permalink

            “The NYT is definitely left wing”
            Not even close.

          • Filippo
            Posted August 19, 2017 at 8:53 am | Permalink

            The NYT occasionally sends an email blurb about how many times a given word has been used in a news article so far this year.

            I note in the Sat 8/19/2017 pg. 1 headline about Bannon the word “populist.” And of course in the bodies of two articles are the words “populism” and “nationalist.” I haven’t read all the articles, but likely I’ll find “nationalism.”

            I’d like to know how many times these words have shown up in the Times this year and last year. (Articles are refulgent, yea exigent, with these words.) Once tried Googling it. No joy.

            Obviously, the Times has a problem with populism, at least that exemplified by the Trump crowd. What word/world view does the Times not have a problem with? I assume that it is some word other than “Non-Populism.” “Elitism”? “Establishment Elitism”? “Establishmentarianism”?

            • Filippo
              Posted August 19, 2017 at 10:01 am | Permalink

              I also wonder if the NYT considers “nationalism” and “patriotism” (perfectly or reasonably?) synonymous and, if not, why not.

          • Ken Kukec
            Posted August 19, 2017 at 10:21 am | Permalink

            I’m not saying that the political opinions of Times writers don’t sometimes seep into their reporting; of course, they do, as they do everywhere.

            My point is that the news and editorial departments of the Times are strictly separated structurally: they have no overlapping personnel and no coordination between the two. The editorial page editor reports to the publisher (so that the editorials reflect the institutional views of the paper); the news editor operates autonomously (so as to quarantine the news division from the publisher’s views).

            That’s certainly not the case at Fox News. I can’t imagine Rupert Murdoch or the guy who took the place of the guy who took the place of Roger Ailes having any interest in separating news from opinion. Hell, the smearing of the two is their brand.

            • Posted August 19, 2017 at 12:26 pm | Permalink

              OK, Ken, I’ll grant you that I probably should have resisted the Fox News comparison—mostly because I don’t watch Fox News and know nothing about it except its reputation for being heavily biased. What I was reacting to is the fact that most of my liberal friends (and I have no conservative friends) consider the NY Times to be the Bible truth, when in fact it’s anything but.

              What I’m lamenting is that there is no source of news these days that we can trust to report the facts in a “fair and balanced” way. Perhaps this has always been the case and I just wasn’t paying attention, but I don’t think so. This is the state of affairs that I referred to as “frightening.” JFK, in talking about the importance of a free press in a democracy, once said “I have complete confidence in the response and dedication of our citizens whenever they are fully informed.”

              Well, that ship has sailed.

  22. Posted August 18, 2017 at 1:34 pm | Permalink

    I’ve rethought about this, since I’ve been provoked into it somehow.

    I now think there is *almost* a defensible argument lurking in the remarks. This is the question of resources: if ACLU (or any other organization) spends $X defending Nazis, they are also not spending $X defending anyone else. Since their total budget is limited, one could make the case that Nazis are “squeezing out” others and so an odious group is disadvantaging others to their own benefit. This is then a recast of the same problem, however. Since the ALCU presumably can only do so many cases, understanding how they *pick* them would help make this part of their process transparent and more just. Of course one can help by donating too, allowing more work to be done.

    This is, ironically (since I don’t buy it fully either), related to the “funding critique” found in some slightly more reasonable “critics of science” – namely that by funding X one is denying Y. Sometimes, in more applied and technological ends of things, this is justified as a complaint.

    • Ken Kukec
      Posted August 18, 2017 at 2:05 pm | Permalink

      Yes, the ACLU has limited resources and must, per force, pick its spots in selecting which cases to pursue. But those decisions should be made based on the importance of the underlying issues at stake — what will best promote the cause of constitutional and civil liberties — not on the basis of the congeniality vel non of the potential clients.

      • Ken Kukec
        Posted August 18, 2017 at 2:26 pm | Permalink

        That lawyerly “per force” I gratuitously added above should be one word, “perforce.” 🙂

        (The gratuitous “vel non” is two words, though.)

  23. jay
    Posted August 18, 2017 at 3:30 pm | Permalink

    The Democratic governor blamed the ACLU for the violence, but ACLU pointed out that the police pulled back possibly so there would be an excuse for state of emergency. Even after the relatively few pro statue demonstrators were gone, hordes of antifa and BLM continued the violence. They were largely ignored and certainly not condemned by the media.

    Articulate conservative commentator Daniel Greenfield has a serious discussion about the future

    http://sultanknish.blogspot.com/2017/08/weimar-america.html?m=1

  24. Posted August 19, 2017 at 12:04 am | Permalink

    “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.”

    Medawar had a pithy quote about folks like her…

  25. Posted August 19, 2017 at 1:09 pm | Permalink

    I had the “wonderful” experience this week of being informed that I was being outed as a Nazi defender and sympathizer when I pointed out that the doxxing of people at the Charlottesville march is not the best way to fight Nazism.

    The discussion was revolving around the news story about the University of Arkansas professor who was mis-identified. The portion of the Left that is advocating for this behavior has seemingly lost its collective mind. Supposedly upholding the principles of scientific thinking, they assume that picking faces out of pictures of crowds will give them some kind of psychic insight into the exact mindset of each person as well as their intentions.

    Meanwhile, falsely identifying people who then receive death threats is described as “an inconvenience” and labeling people who point out the futility of this practice (for the fact that it gives the Nazis recruiting propaganda among others) are called sympathizers. I may have a bona fide case of libel on my hands here as well…


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