The Civil Liberties Perspective on Charlottesville

I have long been a defender of civil liberties for all groups, as long as they do not condone or engage in violence, but we were horrified by the evil on display in Charlottesville, Virginia. And we were further offended by the damage of a failed American president whose words and behavior were so lacking of a moral compass to condemn in no uncertain terms the fundamental evils of what these groups were advocating – and doing! To suggest that there were “fine people” on “many sides” of this confrontation is shocking, indeed.

On the other hand, the Virginia chapter of the American Civil Liberties Union did defend the right of an individual associated with this organization to challenge the attempted revocation of its license for a rally within the city limits of Charlottesville. As critics gathered voices of alarm and pressured the city to rescind the license or at least to transfer the march site to one well outside the city limits, the ACLU challenged the city on the basis of what it called “viewpoint discrimination”. The ACLU’s policy argument was two-fold, as I understood it. First, the basic right to free speech means free speech for all points of view. That is to say, bigotry can only be shown for its wrongness through freedom to speak. I suppose this includes bigotry that condones violence against specific individuals or groups. Second, any limiting criteria based on assessing a risk of violence and harm would open the door to any group being denied the right to protest because of a risk of violence and harm.

This isn’t exactly what the ACLU argued before a federal judge who ruled against the city in this case, but the ACLU did seem to suggest that the indefensible nature of what a person wishes to say should not in and of itself justify a revocation of a license to speak, without any further evidence of a risk of violence. The ACLU statement condemning the tragic events of August 12 recognized the “sad reality”, furthermore, that “nearly every protest carries with it a risk of violence”. Thus, “If we cannot find a way to police protests effectively and constitutionally in the current context,” stated the ACLU, “the result could well be that any and all speech can be prohibited if there is any risk of violence and only speech endorsed by the government with the resources to secure it will be heard”.

As a former national and North Carolina Board member of the ACLU, I am sympathetic to this position. I guess I would be a bit concerned about the possibility of policing “protests effectively and constitutionally” when the government is against the speech at issue. Think about Gandhi’s march to the sea to produce salt against the British ban or the Selma march for civil rights or the sit-in movement that started at the Woolworth dime store in Greensboro, NC. In all of these cases, of course, the violence was perpetrated by the government forces, but we certainly do know of instances where repression of free speech has been justified by governments’ claimed risks of violence by the protesters. It would seem, though, that the role of government is not to prevent protests but rather to adopt and implement the policies to ensure peaceful protests. And if the bigotry of divisive ideologies is on display, the better approach is to expose the flaws in such ideologies rather than shutting them down.


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