At the invitation of Anthony Romero, the ACLU’s Executive Director, Knight Institute Executive Director Jameel Jaffer spoke at the ACLU’s biennial leadership conference in Denver about the ACLU’s representation of racist speakers. Jaffer was an attorney for the ACLU for fourteen years before he became the Knight Institute’s inaugural director last year. Jaffer’s remarks, below, were delivered on Sept. 16, 2017 as part of a program that also included Charles Lawrence, law professor at the University of Hawai’i, and Mary Frances Berry, former Chairperson of the U.S. Civil Rights Commission.
Thanks for inviting me to participate in this conversation, and thanks also for the work you’ve been doing since I left a year ago.
This conversation about free speech and racial equality is difficult for me, as I know it is for many of you. I think of myself as deeply committed to both of these values. I also know, including from personal experience, that the harms of racist speech can be lasting and profound. I don’t assume that my own limited experience tells me everything there is to know about the injuries that racist speech causes, but I know these injuries are substantial, and I’d reject any defense of free speech that required us to trivialize or dismiss them.
So I’ve been struggling with the same questions you have. I want to try to explain why I continue to think that the ACLU should represent hateful speakers in some cases. I want to propose that you should see this work as admirable and valuable, in part for the contribution it makes to the cause of racial justice.
Why represent speakers whose message is antithetical to your own? Because the freedom of speech is a right that belongs to every human equally, whatever his or her beliefs. The right to speak is almost inseparable from the right to exist — or at least the right to exist as an autonomous, thinking being. When you represent people you disagree with, you’re underscoring that the right to speak is a right that belongs to humans by virtue of their humanity. You make this point especially powerfully when you represent people whose views are repellent.
Recognizing free speech as a human right doesn’t answer many questions, I admit. After all, free speech isn’t the only human right worth caring about. I still think it’s a useful starting point. To recognize someone as human requires extending to her, at least presumptively, a right to speak.
The ACLU’s representation of hateful speakers also reflects a belief that exposing hateful ideas to public criticism and condemnation is the surest way to contain or correct them. There’s plainly an element of faith in this. But allowing hateful speakers to speak publicly exposes those speakers to opposing views, and occasionally this can lead those speakers to change their minds. It’s a mistake to believe every hateful speaker is beyond our reach, or beyond redemption. I recently heard Fred Phelps’ granddaughter talk about why she repudiated the Westboro Baptist Church. She was the social media director for what is surely one of the most hateful groups active in this country, but in the course of her work for the Church she engaged with people who disagreed with her, and those people persuaded her to interrogate her own beliefs and eventually to disavow them. All of us know of others whose views were transformed in similar ways. Many Americans who support gay marriage today grew up with hateful views of gay people. Their views changed when they interacted with others.
You don’t have to believe that the First Amendment protects everyone alike in order to believe that an erosion of protections for white supremacists would mean an equal or greater erosion of protections for people like us.
Even when public condemnation doesn’t change the minds of individual hateful speakers, it plays an important role in solidifying societal rejection of their views. The Unite the Right rally in Charlottesville was grotesque as well as tragic, but in the weeks since, many Americans who were previously in denial about the existence of these ugly forces, or in denial about the strength of them, have begun to confront a reality they previously ignored. In the days after Charlottesville, there were counter-rallies in Los Angeles, Seattle, Washington, and New York. In Boston 40,000 people participated in the Fight Supremacy Rally, outnumbering white supremacists about a thousand to one. The CEO of every major technology company spoke out, as did many political leaders — Republicans as well as Democrats. Three days ago, the House and Senate passed, by unanimous consent, a joint resolution that labeled the killing of Heather Heyer a “domestic terrorist attack” and urged the president to speak out against white nationalists and white supremacists.
This process of confronting hate collectively is crucial. It’s through this process that societal norms evolve and solidify. It’s through this process that our society becomes more fair, and more just, and more humane.
There are other reasons to value this work. The ACLU’s power in the courts comes in large part from the perception that the organization is principled in its defense of liberty. Judges who might otherwise be unsympathetic to the ACLU’s left-wing clients are more sympathetic because they know the organization makes the same arguments on behalf of right-wing ones. The ACLU’s opposition to the death penalty would be far less credible if it opposed only the execution of people it liked. Its advocacy against torture would be far less persuasive if it didn’t object to the torture of people whose views it despised. It’s because the ACLU stands up for people it disagrees with that judges listen to it when it stands up for people it agrees with. The ACLU couldn’t abandon its representation of hateful speakers without compromising its ability to represent everyone else.
There’s another reason for this. When the ACLU represents hateful speakers, it’s often defending protections that have been especially valuable to racial justice advocates in the past, and that are especially valuable to racial justice advocates today. The doctrines that limit the discretion of officials who consider permit applications, protect advocacy of violence that falls short of incitement, limit the government’s power to punish economic boycotts — these doctrines are valuable to us. If you believe that the white supremacists have allies in the White House, as I do, then these doctrines are especially valuable to us, because we have more to fear than they do from the abuse of government power. I don’t need to remind you that when the Attorney General condemns hate speech, the acronym he has in mind isn’t KKK — it’s BLM, or BDS.
I don’t want to be naïve about this. The fact that courts protect hateful speech by white supremacists doesn’t mean they’ll protect controversial speech by Black people or brown people, still less that they’ll protect it to the same extent. But it’s nonetheless a fact that the civil rights victories of the 1960s and '70s — cases like Edwards v. South Carolina, Cox v. Louisiana, Street v. New York, NAACP v. Claiborne Hardware — these cases wouldn’t have been possible without First Amendment principles that were recognized for the first time in cases involving hateful speakers like the KKK and Father Terminiello. A lot of the ACLU’s post-9/11 advocacy was predicated on those same principles — principles established in cases involving vile speakers. Hundreds of American Muslims have been prosecuted under the material support statute since 9/11, but far more would be in prison today if it weren’t for the Supreme Court’s 1967 decision in Brandenberg v. Ohio, which involved the prosecution of a white supremacist. You don’t have to believe that the First Amendment protects everyone alike in order to believe that an erosion of protections for white supremacists would mean an equal or greater erosion of protections for people like us.
I think you should continue to represent speakers you disagree with, including white supremacists and others whose message is hateful. The challenge — and it is a challenge — is to do this work in a way that gives full effect to your commitment to racial justice, and that shows your fundamental solidarity with the communities you represent and the partners you work with. This begins with thinking carefully about which cases you take on.
Some of the groups that marched in Charlottesville are committed to starting a race war. They’re interested in the exchange of bullets, not the exchange of ideas, as Anthony Romero has observed. I understand that the National ACLU has said it won’t represent protesters who carry guns. That’s good. I hope you’ll also refuse to represent speakers who restrict your ability to respond substantively to their speech. When you represent these clients, you have a responsibility to forcefully condemn their hateful views, and to encourage others to do so as well. If a prospective client wants to tie your hands, you shouldn’t represent him. You can’t leave any room for doubt about where you stand.
I also hope you’ll work as closely as possible with the groups who’re likely to be targeted by your clients’ speech. In some contexts it may even be possible to bring these cases with those groups. In most contexts, you can at least alert them beforehand that a case will be filed, and explain why the ACLU is filing it. You can also partner with them in responding to the hateful speech.
Finally, I hope you’ll consider using the resources you’ve managed to raise in the last six months to expand your work on behalf of the communities that have been most affected by the policies of the current administration and by the resurgence of white nationalism. I know that the ACLU already does an enormous amount of this work. I hope it will do even more.
As difficult as this conversation is, I’m glad it’s taking place. When I joined the staff of the ACLU 15 years ago, you could count the number of attorneys of color on one hand. The ACLU is now a more diverse organization and a much stronger one. The very diversity of its staff has helped push to the fore fundamental questions about how the organization should pursue equality. This is a good thing. I don’t think you should succumb to a false choice between defending free speech and defending equality, but you should acknowledge the challenges of defending both these values.
Jameel Jaffer is Executive Director of the Knight First Amendment Institute.