Home / General / “I disapprove of what you say, but I will defend to the death your right to say it.” – Evelyn Hall

“I disapprove of what you say, but I will defend to the death your right to say it.” – Evelyn Hall

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But leave your guns at home. – The ACLU.

The American Civil Liberties Union (ACLU) took a new stance on firearms Thursday, announcing a change in policy that it would not represent hate groups who demonstrate with firearms.

ACLU Executive Director Anthony Romero told the Wall Street Journal that the group would have stricter screenings and take legal requests from white supremacist groups on a case-by-case basis.

“The events of Charlottesville require any judge, any police chief and any legal group to look at the facts of any white-supremacy protests with a much finer comb,” Romero told the Journal. “If a protest group insists, ‘No, we want to be able to carry loaded firearms,’ well, we don’t have to represent them. They can find someone else.”

I’m sure Jay Sekulow’s law firm – The American Center for initials that look a bit like the ACLU would love to help them out.

While I agree with the ACLU’s decision, I can’t see how they’ll implement such a policy. If a bunch of thugs are willing to commit acts of violence to get their way, they’re not going to stick at a lie to the ACLU. And in open carry states they can claim the guys who showed up toting heavy weaponry aren’t with them. But perhaps the existence of a gun-unfriendly policy will be enough to repel them.

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  • efgoldman

    It means at least that the ammosexual assholes will have to pay for their own lawyers, or get some RWNJ firm to represent them.

    • mausium

      The NRA will be glad to.

  • How about the ACLU just stop representing hate groups, period. Given that these groups are almost without fail white, they’re already represented by the system. They don’t need any more help.

    • rea

      A lot of people in Congress and the present administration would say that BLM and OWS are examples of hate groups.

      • And all the more reason why those groups need(ed) to be defended by the ACLU.

      • Of course they would say that. People say lots of things. But if the term “hate group” has an actual meaning, surely there is a truth of the matter, and we really can’t be deterred by the thought of whatever falsehoods demagogues may utter. It’s what they do.

        • Ithaqua

          There is not a truth in the matter, unfortunately.

          • Really? So the term “hate group” means nothing? Thank you, President Trump.

            • Ithaqua

              Try thinking a bit before posting. Do you really believe there is an objective, universally-agreed upon definition of the term “hate group”? That every individual on the face of the planet would 100%, or even 99%, agree with every other individual’s categorization of every group into “hate” or “non-hate”? Who were the equivalent of “hate groups” in 1930s Soviet Union or 1960s PRC? Or, for that matter, the antebellum South?

              • M Lister

                Thankfully, that’s not the definition of “truth of the matter” (or else, there would be no truth of the matter as to whether evolution was true, global warming was happening, etc.) There’s a reasonable point somewhere in the neighborhood of what you’re trying to get at, but this isn’t it.

              • I do, in fact, think before I post. I imagine my position is a little more carefully thought out than your facile relativism. By your logic, we cannot say that anything is true about anything until universal consensus has been achieved on the subject.

                • Ithaqua

                  Your imagination is working overtime, then. Explain to me why you think “Hate Group” is as objectively well-defined a term as, say, “Tree” or “Evolution”. You are making the implicit argument that if not everything is well-defined, nothing is defined at all, therefore everything must be well-defined. I am making the assumption that the term “Hate Group” is to a large extent in the eye of the beholder, and consequently is not all that well-defined. This hardly implies that language itself is useless.

                • So you are literally arguing that we can’t say that Nazism is a fundamentally hateful ideology because other people can slander other groups with the same epithet.

                  I, on the other hand, am clear enough both about the meaning of the word “hate” and about the history and ideology of Nazism to say, without hesitation, that Nazism is an ideology of hate and those groups that espouse it are hate groups. Really, the meaning of the term isn’t that nebulous, not that the term “evolution” is actually as clear in the popular imagination as you imply.

                • Mona Williams

                  I agree with this. People might disagree with you, but it is a reasonable thing to say.

                • Junipermo

                  Why are you doing this? What is your endgame here? Do you really want to get into a debate about whether or not the KKK is a hate group, because it’s “in the eye of the beholder”?

                • Ithaqua

                  I am debating whether “hate group” is sufficiently well-defined across space and time so that you, Junipermo, are really 100% sure that you will never find yourself on the wrong side of President Trump’s new legal definition of “Hate Group”.

                • Junipermo

                  I’ll worry about that as soon as I join a group that wants to eliminate certain people from the earth and ethnically cleanse the country. In the meantime, here in the actual world that exists, hate groups are well defined across space and time to everyone commenting here, except for you, apparently. But you keep arguing fanciful hypotheticals if that makes you feel better.

                • Ithaqua

                  That “to everyone commenting here”, of course, invalidates your entire argument, and indicates that you are well aware of the falsity of your statement were it to be applied to the world, or even just the U.S., as a whole.

                • Junipermo

                  You’re right–I should have said every rational, non-hateful person everywhere can agree that the KKK is a hate group, and that the minority of people who argue otherwise are either Klansmen themselves, idiotic, or arguing in bad faith. Either way, if you want to keep splitting hairs about what is or isn’t a hate group, based on the minority of people who don’t agree that the Klan, Nazis, etc. are hate groups, enjoy yourself.

                • Ithaqua

                  You have totally, totally missed the point. The point isn’t whether the KKK is a hate group, the point is whether banning hate group speech is the sort of double-edged sword that can at some future time be used, for example, to ban running ads against Donald Trump – or some successor of his – on the grounds that that, too, is hate group (Democratic Party) speech. I suspect tens of millions of Americans think BLM is a hate group – if you can ban KKK speech, then why can’t they ban BLM speech? The argument about definition is one meant to show that just because YOU don’t consider, for example, BLM to be a hate group doesn’t mean that essentially no-one else does. And there are others who probably don’t consider the KKK to be a hate group; one suspects that in 1930s Germany that would have been close to a majority view. “Hate speech” is a small step away from “unpopular (to the government) speech”, and banning the former for groups that the LGM commentariat disapproves of is hardly a recipe for protecting us from bans of the latter BY groups that the LGM commentariat disapproves of.

                • Junipermo

                  No one here is arguing about banning speech. I thought the argument was about whether or not the ACLU should have defended the Nazis in court about moving their hate march.

                • Mona Williams

                  By your logic we would not be able to discuss values, or incorporate them into our laws, or enforce those laws. But we do, and must. This is why we have arguments in the legislature and in the courtroom, why we have judges and voting. There will never be language unequivocal enough to eliminate these disputes. Yes, it is difficult. It is part of our struggle. And I know you are in it with the rest of us.

                • Mona Williams

                  This is not logical. A non-universal argument is not an invalidated argument–far from it.

                • Mona Williams

                  You can say that “hate group” is not well defined. That is not what you said at first. If you want to argue, you should pay attention to distinctions.

              • Mona Williams

                Truth and 100% agreed-upon are not the same thing.

            • rea

              So the term “hate group” means nothing? Thank you, President Trump.

              Well, “President Trump” is exactly the point. You can’t make rules to limit the power of the state that only work if the good guys are in charge.

              • M Lister

                You can make that point without the stupid claim that there’s no fact of the matter as to whether a group is a hate group or not. Trump is just wrong, after all.

                • Ithaqua

                  …. and that is agreed upon by just about everybody?

                • rea

                  Within my lifetime, “just about everybody” agreed that gays should shut the hell up.

                • Ithaqua

                  Good point – and I did not mean to argue from a basis of “popular opinion”, even though I seem to have drifted close to that error. I should have made it clear that I don’t believe popular opinion should be the arbiter of what speech should be allowed.

                • rea

                  Yeah, but there is no brooding omnipresence in the sky that’s going to come down and correct the government if it gets the answer to “Who is a hate group?” wrong.That is why we have a First Amendment.

              • If the bad guys are in charge long enough, no laws designed to limit their power will work. And having armed mobs marching to support authoritarian rule and intimidate opponents is one of the things that left unchecked will quickly become incompatible with the functioning of anything resembling democracy.

                Hopefully it will not come to the point where the goverment must actually outlaw these groups, but understand this: their power is a threat to the very democracy you would uphold. The fact that the government can abuse the power to target political groups is real enough but sadly does not change that fact. Even before the Nazis came to power, German democracy was a dead letter because debate had been replaced by paramilitary street conflicts and the authoritarian and totalitarian parties commanded a parliamentary majority.

                • Ithaqua

                  You seem to be edging – and note that I’m not saying “are at” – towards a point where one might advocate an authoritarian state that represses speech of the “wrong sort”, where the “wrong sort” is speech that, if turned into too much action, that eventually resulted in an overthrow of said government, might lead to an authoritarian state that represses speech of “the a_paul_in_mtl-approved sort”.

                • I’m saying we’re edging towards the point where the only choice left to us may be which brand of authoritarianism we can live with. It seems to me that a civil libertarian would wish to avoid being backed into such a corner, and might therefore take care not to defend forms of political expression that erode what remains of our democracy. I’m talking about forms of political expression that specifically seek to give cover to those who use terror to silence critics. The murder in Charlottesville is a blatant example; less blatant examples are coordiated online harassment campaigns. The purpose of defending freedom of speech is surely to empower people to be able to participate in democratic discourse, not to empower people to force others out.

                • Mona Williams

                  It stopped being about speech when the white supremacists brought their automatic weapons to Charlottesville.

          • Mona Williams

            There always is. Some is just harder to find.

      • so-in-so

        Don’t think BLM or OWS (if the latter are still a thing) carry guns.

        Yet

        • slavdude

          Well, AIUI, there are some on the right who deliberately conflate the group that calls itself Antifa (and who have committed acts of violence, though very, very few–but their very rarity is what makes the RWNJs holler about how them) with BLM.

      • A good answer to CV’s question could point out that civil liberties are for bad people as well as good people, which is why murderers, for example, have a right to due process. It could also point out that in our legal system good and bad people alike are entitled to legal representation.

        A bad answer would go something like “Good, bad, what’s the difference? Some people say this is good; others say it’s bad. Who are we to judge who is right?”

    • Incontinentia Buttocks

      I’m not sure white hate groups are particularly well represented by “the system,” for whatever that’s worth. And while most hate groups are white, not all of them are (check out the SPLC’s hate map for a comprehensive list that includes some non-white groups). But whether or not white hate groups are already well-represented is a bit beside the point. The ACLU believes in a content-neutral vision of free speech rights and involves itself in cases in which people’s right to speak and assemble are threatened on the basis of the content of their speech. I still support this vision, in large measure because content-based speech restrictions have often been used against (non-violent and non-hate-oriented) progressive and radical groups in this nation’s past. The best way to assure that this does not happen again is to stand against content-based legal restrictions on speech.

      • Junipermo

        But in the Charlottesville case, the rights of the Nazis to assemble weren’t threatened. The city wanted to move their assembly to a larger park, not shut it down entirely.

      • In principle I agree, but the reality is that we do not live in a country where you can be color blind. I do think the ACLU can be impartial as to its stance, but judicial in who it represents.

        • Incontinentia Buttocks

          I believe in the ACLU’s stance in practice as well as in principle. I’m not even sure what it means to believe “in principle” in content-neutral free speech, but in practice to support discrimination on the basis of content. It’s certainly possible to reject content-neutral views of free speech (though to do so strongly in practice, you’d probably have to change the First Amendment). Most countries do discriminate against certain kinds of speech on the basis of their content. But I guess I feel that if you oppose content-neutral free speech protections, you oppose a core value of the ACLU. And it’s kind of silly to expect them to join you in your view.

          • Though I have nothing substantive to add, I want to agree publicly with you and with Murc.

          • What I’m saying is that we do not live in a country where the laws and judgments regarding freedom of speech are applied equally. Black communities, particularly, are specifically harassed and targeted by police when they try to exercise their right to free speech. Far more blacks are murdered by the police when trying to enact their rights than white supremacists. Consequently, they might need more help from organizations like the ACLU when it comes to defending their rights so as to help balance the scales of justice, which as we all know are structurally and systematically aligned against them.

            Late Edit: And to clarify, I think the ACLU can as policy advocate for freedom of speech for all while devoting more of its limited resources towards representing those groups whose members are actually being murdered trying to exercise those rights. There is absolutely no conflict there.

    • Brian

      I am not normally a proponent of the “if everyone is a little pissed they must be doing their job”, but in this case I am. I think what makes the ACLU so valuable is their willingness to defend anyone no matter how repugnant their ideology is to someone.

      The rest of us can work on getting rid of the hate groups.

  • NonyNony

    If a bunch of thugs are willing to commit acts of violence to get their way, they’re not going to stick at a lie to the ACLU.

    A lot of this is about what the ACLU is saying they are willing to fight for. Even in open carry states, the city can try to regulate the manner of the protest by saying “no guns” or – as in Charlottesville – regulate the place by moving the protest to a place where it will be easier to contain for safety reasons.

    What the ACLU is saying here is that they’re not going to help groups who insist on carrying weapons with arguing those restrictions on time, place and manner. Someone else will have to.

    I would not be at all surprised to see the NRA announce that they’re going to do it. They want those gun sales and the folks at the top seem to be fairly insane. So the next time a group of gun-toting protesters are getting restrictions placed on them and the ACLU says “those sound reasonable given that you’re toting guns”, the NRA will step up to fight it instead.

    • Murc

      I dunno. Remember, the NRA is a grift. One-minute terror ads are cheap; high-powered legal teams are expensive.

      • NonyNony

        I dunno anymore. The NRA definitely has been a tool of the gun manufacturers to sell guns, but the folks at the top of it at least seem to have gone nuts. Cleek’s law seems to be controlling their actions these days.

        • slavdude

          The NRA definitely has been a tool of the gun manufacturers to sell guns

          Isn’t it the other way around? At least, that’s what I remember from the coverage of the Sandy Hook shooting.

      • Cheap Wino

        Not only are they expensive but the NRA and whoever they employ doesn’t have almost a century of institutional constitutional law experience to fall back on. I doubt their work would be as high quality.

  • Murc

    If a bunch of thugs are willing to commit acts of violence to get their way, they’re not going to stick at a lie to the ACLU.

    This is about what legal protections the ACLU is willing to fight for and defend, which is something you can’t really make them do with lies.

    Speaking as a member, the way I’ve been reading this is actually very narrow. It’s essentially “if a state or locality has place restrictions on the time, place, and manner in which you may go around armed, and those restrictions are upheld by the courts, and you’re a hate group, we’re not gonna step in and fight against this particular restriction to your civil liberty, in the same way we will not step in to fight for a persons right to shout ‘fire!’ in a crowded theater. This doesn’t mean we will never take a gun rights case ever. It doesn’t even mean we’ll never take a gun rights case involving hate groups if they comply with existing law and are still charged. But it does mean we won’t let them use us as a vehicle to expand these rights via the courts.”

    That’s not nothing, but it is very narrow. And it’s not something you can get around by lying to the ACLU.

    I’m not very surprised by this position. Gun rights are the civil liberty that the membership seems to care about the least, but least is relative; there’s still a significant portion of said membership that cares about them a lot, and you by and large don’t become an ACLU member if you’re not okay with occasionally choosing defend Nazis. But you sure don’t have to like it, and you sure don’t have to side with them to expand those particular rights; if you’re an ACLU member with an interest in doing that, there are tons of other non-white supremacist groups you can look to instead.

    • M Lister

      we’re not gonna step in and fight against this particular restriction to
      your civil liberty, in the same way we will not step in to fight for a
      persons right to shout ‘fire!’ in a crowded theater.

      Small thing only sort of relevant to the larger point, but one that always sticks with me, not least because of having taught _Schenck v. U.S._, the case where the (actual) statement is made in Holmes’s opinion, but what is said that is that one could not _Falsely_ should “fire” in a crowded theater. The difference is important, given that, while the first might be dangerous, it might still be the right thing to do. The second is never the right thing to do. (I tend to think that Holmes is more a villain than a hero on free speech, but it’s still important to get his ideas right so that we can understand them.)

      • Murc

        I sort of assumed that anyone reading that sentence would know the “falsely” part is implied, yes. Yelling to warn people about a REAL fire is obviously legit.

        • M Lister

          I point it out primarily because I have had to go through the point slowly, even with pretty smart students, each time I teach the case to make it clear to them what Holmes point was (*), and why the “falsely” bit is essential to it.
          (*) The irony, of course, is that the point doesn’t even plausibly apply to the factual case of Schenck.

      • Wapiti

        Just riffing off the freedom of speech bit… I am coming to believe that in this internet age, we are all living in a crowded theater. The possibility – or inevitability – of violent speech provoking some easily-led person into violent action is a fact of our modern lives. I’d expect some tightening of free-speech laws in the future.

        • There have been 2 Red Scares already where everyone used the same analogy and were clearly wrong about the threat.

          It’s just like Munich analogies. History teaches us that humans almost always overstate these threats, not understate them. Especially when it can mean banning the speech of their political opponents.

          • “Almost always overstate these threats” is almost certainly overstated itself. After all, there have been many cases in human history where warnings were not adequately heeded, with terrible results.

            So we might want to compare current concern about Nazis and KKK marching in the streets with those Red Scares and see how analogous those situations really are before jumping to conclusions.

            • Warnings specifically about relatively small groups of political protesters have been correct?

              • Warnings about armed political movements that would like to use violence and intimidation to fully realize the potential they see in the rule of a would-be autocrat certainly have.

                • Size matters. These idiots are not large enough to impose fascism on America.

                  And note, your same argument was made about Communists back in the day. They were backed by the USSR.

                • “These idiots are not large enough to impose fascism on America.”

                  Shall we wait until they are?

                  “your same argument was made about Communists back in the day.”

                  Not quite.

                  “They were backed by the USSR.”

                  And in countries like Czechoslovakia in 1948, for example, it was very much a propos. Not so much in the United States, at the time. It might have been different had there been an actual conspiracy within the government as the McCarthyites claimed, but factually that was…inaccurate.

                  Now consider the current situation. You have a President who acknowledges the legitimacy of none of the limits on his power, and you have a far-right “base” of people prepared to back his authoritarian ways to the hilt. Of those, a smaller number are already prepared to march in the street with semiautomatic weapons to show how serious they are about “taking back this country” as Trump promised. And Trump responds by saying that, a few bad apples aside, these are “good people” with legitimate grievances.

                  To the extent that any analogy holds between now and the Red Scare times, you’d have to compare Trump and his hard core followers to the Red Baiters, not to the American Communists.

                • 1. We should, actually, wait. It’s stupid to give up freedoms because of a few extremists.

                  2. The USSR absolutely had contacts with US Communists. And there were more of them than there are Nazis now. Nonetheless we gave up way too many freedoms to fight them. There’s a lesson here.

                • A “few” extremists????!!! ONE OF THEM IS THE GODDAMN PRESIDENT.

                  And the REASON we have a fucking fascist in charge of our country is because shithead morons like YOU spent the last decade or more claiming there’s “just a few” of them and they aren’t a threat.

                • The people who protested in Charlottesville, disgusting as they are, were not the reason Trump got elected.

                  And your panicky comment is scary to me. People are very quick to want to give up freedoms at the first sign of a threat.

                • What freedoms do you think I am actually proposing to ‘give up’, as you put it?

                • They, and the mentality they represent, were a large part of the reason Trump got elected.

                  There is a world that lies between the poles of panic and complacency. I do not counsel panic. I counsel vigilance. As you doubtless recall, the price of freedom is eternal v. As for “freedoms”, within a community they are all necessarily subject to limits, since it is impossible to live with other people and have unlimited freedom unless one is an absolute tyrant. So, the debate is about acceptable limits and how they can be applied in a manner that is neither arbitary nor capricious.

                • This isn’t the “first sign of a threat”. One of the more easily-visible signs was the takeover of the GOP by the Tea Party in 2010. For those who were actually paying attention, as I was, the rise of the militias during the Bush Administration was an even earlier sign. This has been building for YEARS, precisely because shithead idiots like you have blinded themselves to the growth of fascism. And now there is an open fascist in the Oval Office.

                • Ithaqua

                  … and your solution is to get rid of freedom of speech. That’ll help the LGM commentariat struggle against the U.S. government! Read what you wrote, and decide whether your ability to write it without winding up in prison is, possibly, due to that very same First Amendment which you and others on this thread now appear to decry.

                • No, we are not proposing to get rid of freedom of speech. But unless you are going to argue that absolutely anything goes as long as you can call it ‘speech’, the debate is over what limitations we can allow the government to put on various types of ‘expression ‘, and what principles should limit those limiting powers.

                • 1) I don’t know about you, but I can do without the freedom to burn crosses to intimidate “undesirables”. I can do without the freedom to come into a city to provoke violence and terrorize the locals. And if ISIS people had been marching, fully armed, and threatening Jews and Christians and other “enemies” there’d be no argument about whether such “freedoms” are worth having. Not all forms of ‘political expression” are equally worthy of constitutional protection, since political murders and terrorist acts generally are also acts of political expression.

                  2) The fact that the USSR had contacts with Communists had little to do with how much of a threat they actually posed. It is different when far right extremists are expressing a willingness to be the paramilitary arm of the President.

    • This is about what legal protections the ACLU is willing to fight for
      and defend, which is something you can’t really make them do with lies.

      ?

      Nazi – Help, the city revoked our permit for our Free Speech Rally.

      ACLU – OK, before we can consider helping you – Do any of your members intend to bring guns?

      Nazi – *Crosses fingers behind back* No.

      • Aaron Morrow

        I assume the ACLU would then sue the Nazi individuals and group for breaking their contract. I hear they have good lawyers.

      • sibusisodan

        The traditional Nazi response should be ‘we intend to bring guns up to two blocks away from the protest, but this is absolutely our last territorial ambition. Ok, ok, one block, but that’s it.’

        • N__B

          The next stop after that would be to divide downtown between themselves and CPUSA, with a strongly-woirded promise to respect the dividing line.

        • slavdude

          They just want a little peace–a piece of this block, a piece of that…

          The joke works better from the original source:

          https://www.youtube.com/watch?v=lnah81kES_s

      • Murc

        Ah, I see what you mean, Shakezula.

        Well, in that situation when the idiots who brought guns illegally show up with them, and get their dumb assess arrested, the ACLU doesn’t provide legal representation, and they regard the group that lied to them and affiliated groups as untrustworthy. Indeed, the new position seems to say that they regard all such groups as being less trustworthy than other groups, hence the heightened screening and case-by-case evaluation.

        I’m assuming in your hypothetical that this is occurring in a context where the permit was revoked because the city was all “well, these guys are clearly planning to bring firearms in violation of our ordinances regarding that kind of thing in rallies and protests.” Which is a very good reason to revoke a permit; there’s longstanding (and entirely justified) caselaw regarding times when public safety trumps free speech. It’s been used for mischief, but even we tend not to argue it shouldn’t exist.

        • Carrying a gun around isn’t illegal in an open carry jurisdiction, so making the line illegal behavior doesn’t really help.

          The second problem is connecting the people with the guns with the permit holder. In Cville at least one armed group claimed to be neutral and just there to keep the peace. True? Who knows? But it wouldn’t be fair to say the permit holder is responsible for the behavior of everyone who is in the vicinity of the rally.

          • Wapiti

            Then the armed group needs their own permit? Or it was just a spontaneous gathering of people from a six-state region?

            • What do they need a permit for? They could say were taking their detachable death penii for a walk and stopped to watch the rally. Perfectly legal.

              In open carry states, the city would have to create a no guns zone around the rally, but I don’t know if that would stand up to a challenge.

              • Eugene Volokh, who of course is a gun rights advocate, suggested the courts may find that a political protest is a “special” context, like airports and courthouses, where guns could be banned under Heller because of the potential for violence and the difficulty of policing. That may be correct.

                There’s actually a lot of discussions that need to take place about policing here. The cops are supposed to keep the protesters and counterprotesters apart, and many urban police departments have succeeded in doing this. Then you get lots of speech and no violence. A gun ban at protests would be a very useful tool to keep the peace.

                • Murc

                  Dilan, I don’t often have nice things to say about you, but this seems eminently sensible.

  • SomeTreasonBrewing

    I’m not sure this is such a slippery slope for the ACLU. There will be tough cases involving bigots going forward, but that was always going to be the case. If a group wanted to protest the denial of their right to yell fire in a crowded theater, the ACLU might very well demur, no?

    This new version of dudebro neo-nazism has not demonstrated that it can reliably peacefully assemble. Going forward, it is reasonable and foreseeable that white nationalists assembling to protest minorities, immigrants, gays, jews, etc…. could prove to be a violent gathering.

  • Zagarna_84

    This seems like a good line to draw, because it’s not based on the content of a protest, but the manner in which the protest is going to be carried on.

    I guess one could say that carrying firearms is itself a form of symbolic speech, but since the symbolic speech in question seems to be a constitutionally unprotected threat of imminent violence, I don’t really care.

    • Murc

      If I could buy this comment dinner, I would.

    • Just to press the issue, are you saying that no form of speech or political expression that implies the threat of violence should be permitted?

      • Zagarna_84

        The threat has to be a “true threat”, i.e. serious and not a joke, but yes, I understand the Supreme Court’s cases to say that true threats are unprotected, and in this instance I agree with the legal status quo.

  • so-in-so

    Lying to the ACLU presumably would work once, at most. They have made their policy clear, I’d assume at this point they can refuse any of the groups who marched at Charlottesville. They don’t need standards of proof to accept a case, they can ignore claims that “honest, we’ll leave the guns home this time” and just tell them to find another lawyer.

    If the NRA decides to do it, even if the NRA uses that to fund raise, at least when we donate to the ACLU we don’t wonder what percent goes to representing gun toting Nazis.

  • Brien Jackson

    “But if you guys just show up in thousands carrying Nazi flags and loudly call for the mass death of Jews and non-white people we’re good with that.” -The deep thinking, highly principled, morally superior ACLU.

    • Murc

      If you define as “good” as “don’t think it should be illegal,” then yes, we goddamn are, and rightfully so.

      • Brien Jackson

        Right. As long as your symbol of intimidation and implied violence is a Nazi armband and not a gun, the ACLU doesn’t think there’s anything wrong with that.

        • Murc

          We don’t think it should be illegal, no, and again, rightfully so. That’s different from not thinking there’s anything morally odious about it, which is an entirely different matter.

          • Brien Jackson

            Correct me if I’m wrong, but the ACLU doesn’t think free speech covers cross burning, right?

          • rea

            And damn few people get shot with armbands.

            • Brien Jackson

              Certainly, large groups of people marching in the streets with swastika armbands have never hurt anyone!

              • Gareth

                Very few people have been killed by swastikas themselves.

      • Why rightfully so?

        • Murc

          Because the government, and indeed the populace, is wildly and grotesquely unqualified and incompetent to decide what substantive content of speech deserves to have the power of the state deployed against it, and what does not?

          I mean, can you imagine what the current and most recent Republican administrations would be getting up to if that was actually allowed, as well as our various neoconfederate-friendly courts? Forget the Patriot Act, there’d have been a new round of Alien and Sedition Acts.

          • Brien Jackson

            Why the fuck am I supposed to be impressed with people who have the intellectual capacity of a 16 year old libertarian, again?

            Again, it’s not like the ACLU’s defense of Nazis actually prevented Bush-era free speech zones anyway.

            • Ithaqua

              … and therefore we shouldn’t protect people’s right to free speech – unless they are rich enough to hire their own lawyers? Seems like rather a stretch of an argument to me.

              • The fact is, a march is not “speech”, it is part of a broader category called “expression”. Since “expression” is a very broad category that can include brandishing guns or even beating or killing people, freedom in this category obviously cannot be absolute. The question, rather, is where to draw the line. The concern that giving the government the right to prohibit or even limit protests can be abused is a real one, but it seems that even there the ACLU is now recognizing that they need to draw the line somewhere. But why precisely there is one question they need to be prepared to answer.

              • Brien Jackson

                No you misunderstand me. Putting on a swastika and marching through the street in an armed group is inherently a form of intimidation/threatening/violent speech, as is burning a cross. The ACLU shouldn’t be defending in because it shouldn’t be considered within the bounds of first amendment protection.

            • Murc

              Why the fuck am I supposed to be impressed with people who have the intellectual capacity of a 16 year old libertarian, again?

              I dunno. Why am I supposed to be impressed with people who think a big problem with the US is we’ve got all these damn rights that any idiot can avail themselves of?

              • Ithaqua

                +1000.

              • Brien Jackson

                Except, say, an interracial couple’s right to not feel threatened by a group of people in Klan robes burning crosses in public. The ACLU doesn’t much care about *their* rights.

          • So, here’s the thing. Why does the ACLU think the government, or the people, are competent to deny permits based on the fact that they are carrying firearms? I mean, that’s a form of political expression, isn’t it? And if we’re going to be absolutist about that, and if open carry is legal, how is this consistent?

            • Murc

              Why does the ACLU think the government, or the people, are competent to
              deny permits based on the fact that they are carrying firearms.

              Honestly? We largely don’t.

              But ultimately, someone has to make basic decisions about public safety and when and how to protect it. Deciding that this decision space should be deliberately circumscribed isn’t the same as thinking it shouldn’t exist.

              And if we’re going to be absolutist about that

              … we’re not?

              and if open carry is legal, how is this consistent?

              The actual position the ACLU is taking doesn’t have any bearing on situations in which it would be perfectly legal to show up at a protest or rally in an open-carry jurisdiction. Indeed, it completely leaves the door open to examining a case in which a permit was wrongfully denied or an arrest made in such a situation and getting involved.

              What it does say is that it is unlikely to get involved in a rights-expanding slapfight in situations involving hate groups, because it is trying to balance the rights of everyone involved, which involves compromise, and which means someone is going to get their ox gored, and if that’s going to happen, they prefer it to happen to hate groups. I don’t see any sort of inconsistency there, or at least not enough of one to render us enormous hypocrites.

              • Precisely. Someone has to make these decisions, and the only ones who can are those fallible humans. But now the ACLU is acknowledging that sometimes it’s better for fallible humans to make a decision than not to.

                And if freedom of expression isn’t absolute (of course it can’t be), then every case has to be argued on its merits, based on broad principles to be sure, but the fact that humans are fallible in their judgement can’t possibly be a reason for saying, don’t make judgements.

                • Murc

                  But now the ACLU is acknowledging that sometimes it’s better for fallible humans to make a decision than not to.

                  We’ve never not acknowledged this?

                  And if freedom of expression isn’t absolute (of course it can’t be), then every case has to be argued on its merits

                  Of course every case is argued on merits. How are we defining merits, tho? That can mean a lot of things.

                  but the fact that humans are fallible in their judgement can’t possibly be a reason for saying, don’t make judgements.

                  The entire Bill of Rights is based upon this idea, tho. I mean… I’m going to pick out one that doesn’t come up anymore, but take 3A. That one is entirely based on “we don’t think people are competent to decide when and how it is appropriate to quarter soldiers in private homes. So we’re just going to blanket forbid it and prohibit you guys from exercising your judgment. Of course, when and how this applies is going to be left up to people as well, but we’re kind of stuck with that and at least we’ve ennumerated the principle so strongly as to not leave a lot of wiggle room.

                  Or the much-abused 6A. That’s based on “we don’t trust you idiots to produce people for trial in a timely fashion; we’ve seen how that leads to abuse. So we’re going to write in a right to habeus and take that decision entirely out of your hands. It will, of course, also be up to people to decide when and how this right is and isn’t violated, but again, we’re sort of stuck there.”

                • “we don’t think people are competent to decide when and how it is appropriate to quarter soldiers in private homes”

                  I presume by that you mean we don’t think the government is competent to decide when or how it is appropriate to force people quarter soldiers in their homes. But is this prohibition really based on the notion that “we don’t trust the government to exercise judgement” or on the notion that, except in extreme circumstances, such an imposition is inherently an abuse of state power?

                  Now compare this to the government’s powers to regulate political protests. As we know, the government already has powers in this area. That is why groups need permits, for example.

                  As far as I know, nobody here is arguing that the government shouldn’t have such powers. And as far as I know, nobody here is arguing that there need be no curbs on those powers or how the state can exercise them. The entire question hinges on what exactly the restrictions on the state’s power in this area should be.

                  The fact is, of course, is that whatever the answer ends up being will be based on fallible human judgement. That is why I found your earlier answer, which I am going to quote at length, to be highly inadequate:

                  “Because the government, and indeed the populace, is wildly and
                  grotesquely unqualified and incompetent to decide what substantive
                  content of speech deserves to have the power of the state deployed
                  against it, and what does not”

                  If this claim were to be taken literally it would leave outright incitement to violence as protected speech, since incitement is “substantive content”. And in fact, taken literally, that is an argument for no limitations on speech whatsoever, since, again, only the government and the populace, however unqualified and incompetent, are available to make such decisions. There is no higher power available to do it for us.

    • Junipermo

      I’m not up on all the details, but wasn’t the issue that Charlottesville wanted the Nazis to move their hate fest to a larger park, not that they wanted to cancel it altogether? If that’s the case, then I’m not clear why the ACLU felt they needed to defend the Nazis in this situation.

      The ACLU has done good work lately, particularly on challenging Trump’s Muslim ban. But I’m having a hard time with what they did in Charlottesville.

      • rea

        I’m not up on all the details, but wasn’t the issue that Charlottesville wanted the Nazis to move their hate fest to a larger park, not that they wanted to cancel it altogether? If that’s the case, then I’m not clear why the ACLU felt they needed to defend the Nazis in this situation.

        The objection was that in order to protest the removal of the statue, they needed to be at the statue, not out of sight in a larger park.

        • And this matters. I litigated some political convention protest cases where the government put the protesters so far away that they would never be heard.

          Just because this security rationale may have had some legitimacy doesn’t mean we should accept as a matter of principle that the government can move the protest in the name of “security”.

          • Because there never are any legit security concerns, or because you’d prefer not to argue over which ones are legit and which ones aren’t?

            • Because judges are not trustworthy to apply the principles neutrally, and will instead invariably use security rationales to suppress speech they dislike.

              • “judges are not trustworthy to apply the principles neutrally, and will
                instead invariably use security rationales to suppress speech they
                dislike.”

                If that were actually the case, case law would allow the government to simply suppress all speech they didn’t like on security grounds, no? I mean, if that’s how judges “invariably” rule.

                • You are knocking down straw men.

                  The legal system and the common law system of precedent is all about using rules to constrain judges.

                  If you don’t believe in that, that’s fine, but under the rules that govern our legal system, “impose a bright line rule to prevent rulings based on personal dislike of litigants” is a pretty common thing not limited to speech claims.

                • ” under the rules that govern our legal system, “impose a bright line
                  rule to prevent rulings based on personal dislike of litigants” is a
                  pretty common thing not limited to speech claims.”

                  So the issue then is what that bright line rule should be. You claim that security is (uniquely?) an ineffective line for preventing arbitrary and capricious rulings, which I found odd since most of the government’s existing powers regulating political protests are based at least ostensibly on the need to safeguard public safety. I presume you are not arguing that all those regulations should be done away with? I am, however, unclear on what you are arguing for. Clearly, if the government has the power to regulate, but courts often rule (as in the Charlottesville case) that the public safety case being made is not strong enough to justify refusal of a permit in the park of the protesters’ choice, it cannot be true that judges invariability rule against protests they don’t like when public safety is invoked. I’m assuming that the judge who made the ruling did not actually approve of the march- perhaps that is an unwarranted assumption?

                • Judges have been constrained by vertical stare decisis. If there weren’t a bunch of cases reversing judges who were too quick to accept security rationales to suppress speech, there definitely would be this problem.

                  American free speech law incorporates decades of the country’s smartest people learning from experience. That’s the genius of the common law system. Let’s not throw that out over one incident.

                • You mean, judges reversing other judges? Right, so not ‘invariably’.

                  And I’m suggesting the genius of the legal system would be enhanced by continuing to learn from difficult cases, including this one.

  • humanoidpanda

    I think a much better position for the ACLU is something like “we support the fist Amendment Rights of everyone, but will not spend the dollars we raised from liberals alarmed about the rise of Nazis to protect the Nazis’ rights. Let Robert Mercer pay for their representation. We might write an amicus brief sometimes. If any intern is interested.”

    • Brien Jackson

      The ACLU is staffed with a bunch of people with a Greenwaldian streak of taking flimsy contrarian positions to demonstrate how principled they are. Cfe Citizens United.

      • humanoidpanda

        I think this is not fair at all. ACLU is staffed with people who think free speech is the most important liberal value. Which is fair. But the problem is that they fundraise from people who think that free speech is just one ingredient in a much larger package.

        • Brien Jackson

          Except they don’t actually think that once they have to follow through the implications of their arguments. CU is the best example: If they actually believed in their position on the case, they’d be out there trying to tear down the ENTIRE entire system of campaign finance rules for violating speech rights left and right. It’s just Greenwaldian wankery.

        • Murc

          This isn’t entirely true. We’re involved in a shit-ton of 4A, 8A, 2A, and 6A cases and causes as well.

          It’s just the 1A stuff gets all the attention because it’s the sexy, controversial stuff.

        • It’s our responsibility to point out to ACLU “speech trumps all” types just how misguided they are.

          • Ithaqua

            Right up to the day when Roving Youth Pastors get put into jail for protesting some Roving Youth Pastor hot-button issue that isn’t massively popular, that is.

            • The protesters on the left were well willing to go to jail because they believed in the morality of their cause. If you’re protesting and you aren’t willing to go to jail, your just walking as a group in a park. A big part of non-violence training is preparing to be arrested and being willing to have that happen.

              The clergy who blocked the entrance to the park were not permitted to do that, it was illegal, they did it because it was right and didn’t whine about “free speech”.

              • Ithaqua

                Oh, so you shouldn’t have any right to free speech unless you’re willing to go to jail for it? Is this even an argument?

                • Guest

                  Seems more rational than First Amendment absolutism arguments. I mean, according to those kinds of arguments Germany and Austria are authoritarian hell holes right now because you can be put in jail for being a Nazi.

                • Ithaqua

                  No, according to these kinds of arguments, Germany and Austria are one step closer to being authoritarian hellholes right now because you can be put into jail for being a Nazi. There is a big middle ground there.

                • Guest

                  And yet the obvious rebuttal is of course, “No, by banning the literal Authoritarian Fascists who killed millions of people and started a world war, Germany and Austria are reducing the probability of Germany and Austria becoming authoritarian hell holes.” All power can be abused. Your slippery slope argument is fallacious at best, straight absurd at worst.

                • Ithaqua

                  Hardly either, actually. Look at what’s happened in Hungary over the last 20 years, or Turkey over the last 10 years, where laws against certain kinds of speech have been twisted and expanded to suppress anti-Government speech in very significant ways. There are a hell of a lot of posts on LGM, even on this thread, that would find you in prison in Turkey if you lived there and wrote them about Ergodan instead of Trump. And, get real, Nazi-ism is hardly an existential threat in the U.S. or Europe. The national response to Charlottesville pretty well demonstrates that. There are plenty of laws that punish them for violent behavior, and no-one is claiming that the guy who drove a truck into the crowd is going to get off due to the 1st Amendment.

                • Guest

                  Yes, because no one has ever underestimated Nazi’s before in the history of the world.

                  Yes, because Nazi’s and Nazism have never been a threat to Europe and the US before now. And when that was going down, we know for a fact that there were people like you who said that the Nazi’s were not a threat to anybody.

                  You point to Turkey and Hungary and I point to Austria and Germany. You point to power being abused and say “See! It will always be abused and never not abused so we must never regulate anything ever related to speech.” It’s bullshit. All power can be abused. Merely because power can be abused is insufficient reason to deny power to the government or individuals.

                  Worse, it’s totally not like Erogdan and Orban didn’t you know, change their constitutions and/or simply ignore them in the first place. The First Amendment, hell the entire Constitution, is a piece of parchment. It defends nothing. It can grant you all the rights in the world, but if man doesn’t defend them, you don’t really have those rights now do you. That alone is one of the reasons an appeal to the law is a logical fallacy. And why your slippery slope argument is also a fallacy. If the majority of a country really wants to ‘Jim Crow’ you, there is nothing a minority can do until they get the power to do so. Courts ignored ‘Jim Crow’ for most of a century before liberals were able to change that.

                  I’ve show proof that man can actually say, ‘This far. No farther.” with regard to bans on certain kinds of speech. But I’ll be the first to admit that it takes a strong society to do that. And I’ll be the first to admit things can go horribly wrong. But as our current Nazi supporter in the White House has revealed, your protestations to the First Amendment being for everyone and not just the Nazi’s are only going to last as long as we can keep Trump from filling more judicial appointments.

                • You weren’t making an argument. You were implying I’d change my opinion if faced with jail. I would not.

                • Ithaqua

                  Hmmm, that wasn’t my intent. My point was that you’d probably think that it would be better if you lived in a society where you didn’t get thrown in jail for, say, protesting against gays being thrown in jail for being gay. But you’d have surrendered all the outer positions of your defenses, to make a military analogy, by refusing to support other causes’ right to protest against their issues simply because you disagree with their stances on those issues. The case would come down to the popularity of the issue, not the right to speak, because you’d have willingly participated in the denial of many other groups’ right to speak, so that right wouldn’t really exist any more.

        • Yestobesure

          As a capitalist, I believe in the specialization of labor. I don’t want the people who defend constitutional liberties to be wishy washy broadly liberal types with lots of different priorities. I want hard-asses who passionately believe in this one principle. I don’t want public defenders who see both sides of the issue, I want people who take joy in giving prosecutors grief. I don’t want Planned Parenthood second guessing the decisions of the women who seek their aid.
          We’re a large nation, we contain multitudes, and it’s important to have high quality voices defending the various sometimes conflicting principles we hold dear.

          • sibusisodan

            But again, that assumes a neutral playing field and equality on both sides. It assumes that the public defender is equally resourced compared to the prosecutor. Otherwise…it doesn’t work.

            Same with capitalism. It only works with a shared commitment to, and observance of, a market with level playing field and low barriers to access.

            Outside of that, you’re asking for an economic oligarchy.

            • Yestobesure

              Re capitalism, ignoring distribution for a moment, it is absolutely true that the specialization of labor is an incredibly powerful way to increase a society’s ability to produce. Even a communist command economy would want to build on a framework of specialization – some people are doctors, some farmers, some welders, etc. A football team has place kickers and long snappers and quarterback coaches. Sure I want the public defender to be well resourced, and I want the guy arguing against govt infringement on speech or establishment of religion to be well resourced too.. that’s why we should fund the ACLU!

              • sibusisodan

                But ignoring distribution gives the game away.

                • Yestobesure

                  I think you’re missing my point. We can have specialization and still use taxes, public services, and transfers to fix distribution. We can have regulations to prevent concentrated market power, and unions to strike good deals for workers. But we don’t want everyone growing their own food and weaving their own clothes and brewing their own home remedies. Adam Smith had this right 250 yrs ago.
                  Also all of this was just an analogy to make a pt about adversarial systems and the different roles people play in society. I see your point that if the ACLU only defended the powerful or the hateful, and no one stood up for groups that we all like, that would be a horrible outcome, but that’s not how I understand their role.
                  Maybe this is just my fault for using the c word (capitalist).

              • humanoidpanda

                I don’t disagree with you. I am just pointing out at that the ACLU is raising tons of money branding itself as a resistance organization, while in fact they have a fairly narrow calling

                • Yestobesure

                  Fair point.
                  Caveat donor if you only see ACLU as a way to stick it to Trump.

          • CPPB

            As I’ve stated elsewhere, I’m opposed to the ACLU’s position on 1A issues, but this “ACLU as public defender for the Bill of Rights” is an interesting analysis, thanks. I think it has some weight, in that we have an adversarial legal system and can count on the state to be anti-expression (that it doesn’t like), so we need rigidly pro-speech advocates. I think it breaks down, but not sure exactly where yet.

            • Yestobesure

              Read your other comments on this post, and I see the problems you raise (defending nazis’ rights may not, in practice, help other groups freely assemble and speak). It’s something to grapple with, but I am more wary of starting to say “we support 1A except for those people”. Better to glorify the bill of rights in this way and simultaneously support other groups that knock the content of the nazis.

    • Murc

      The problem here is that legal decisions reached in cases involving Nazis do in fact still apply to non-Nazi parts of the populace.

      • Brien Jackson

        All of those non-Nazis belonging to groups that perpetrated violence and existed to commit genocide will be in big trouble!

        • Murc

          The law doesn’t work that way? It has to be both facially and effectively content-neutral to comply with existing (and unlikely to be overturned, and for good reason) 1A jurisprudence, which means if you somehow trick and stunt your way to “you can tell groups you don’t like to fuck off and back that up with the power of the state” you’ve opened the door to all kinds of bullshit.

          • Brien Jackson

            Then there’s no reason to decide that carrying a Constitutionally protected piece of metal in a state where openly carrying it is legal invalidates their 1A rights either.

            • Murc

              ??

              I’m trying to parse this in context of the subthread and legitimately having trouble.

              • Brien Jackson

                Again, the Citizens United precedent is relevant, in that there’s no logical way to rectify the ACLU’s position in that case with the existence of dozens of other campaign finance rules they aren’t fighting against. The ACLU isn’t ok with guns, presumably because they’re intimidating and threatening of violence. But SO IS A SWASTIKA OR A BURNING CROSS! There’s no wy to actually square that circle, and it’s just more evidence that the ACLU actually does have boundaries to their play-acting absolutism.

                • Murc

                  The ACLU isn’t ok with guns, presumably because they’re intimidating and threatening of violence.

                  The ACLU typically supports a collective interpretation of the second amendment, yes. This is a matter of lively debate within the organization, and the ACLU has often been involved in cases on the other side of the matter. Indeed, the statement this post is about and the new position on our part it implies is deliberately restrained and measured for precisely that reason.

                  As far as “because they’re intimidating and threatening of violence,” yes, that’s true, inasmuch as we recognize that it is very difficult for others to exercise their own rights if people are pointing deadly weapons at them. Your own rights have balances with the rights of others.

                  But SO IS A SWASTIKA OR A BURNING CROSS! There’s no wy to actually square that circle,

                  Of course there is. You can’t actually point a swastika at someone and kill them with it by pulling the trigger. It’s supportive of political ideologies that are ultimately in support of doing that with actual guns, of course, but there’s no way to actually stop that short of a 1A repeal.

                  and it’s just more evidence that the ACLU actually does have boundaries to their play-acting absolutism.

                  We’re not an absolutist organization and never have been. Of course we have boundaries. We also get shit wrong and have a lot of trouble figuring out what balancing acts are appropriate. So we’re like… every single other activist organization ever.

                • Brien Jackson

                  “Of course there is. You can’t actually point a swastika at someone and kill them with it by pulling the trigger.”

                  Wherein the violence involved in putting people in fear is ignored entirely.

                  And this isn’t even convincing in its own right either: Heather Heyer wasn’t shot, and large violent mobs can easily decide to kill people by beating them rather than using bullets.

          • Guest

            And yet, Germany and Austria have made pretty clear, pretty good cases that putting Nazi’s in jail for existing and still having a right to protest and a broad but not unlimited right to free speech can exist and not destroy a society like you First Amendment absolutist claim.

      • If they hadn’t represented this group, and the next local DSA/BLM rally protesting the statue gets moved to a bigger park as a result, but this carrnage was avoided, no tears shed here.

        Ignoring concrete situations and consequences because of abstract principles is every bit as noxious as any nihilistic unprincipled any-means-justify-our-ends pragmatism.

        • Murc

          That’s not the concern, tho. The concern is that once the precedent is established, the DSA/BLM isn’t moved to a larger park, but is instead placed in some sort of Bush-era protest pen where nobody can see them.

          • Well, then I have a 10 dollar bill right here earmarked to fight that case then and there.

            EDIT: I mean, you’re telling me we can’t trust their lawyers to convince a judge that moving people to a bigger, safer park isn’t the same thing as a “free-speech pit”, yet we want them to protect out rights? They just want to take this “all comers”, “we’re building precedents” path out of moral laziness and cowardice.

            • Murc

              And if you succeed in getting the prior caselaw overturned, the Nazis will take advantage of that.

              • Apparantly they needed our lawyers to pull this off, I say let’s see if they can do that on their own.

                I’m not even arguing that the ACLU actively oppose these groups, just not aid and comfort them out of a misguided sense of principle. Let the Mercer’s foot the bill and sully their hands.

          • Brien Jackson

            It’s a good thing that the ACLU’s stingent defense of Nazis prevented that then!

          • Junipermo

            But there are other more immediate concerns besides what might happen down the road at a hypothetical protest for a liberal cause.

            Right now, what is actually happening is that Nazis terrorized a town, and killed Heather Heyer. They have a friend in the White House, and pose an existential threat to the lives and liberty of millions of people.

            I’m glad the ACLU took the step they did today about refusing to defend gun wavers at protests. But their free speech absolutism put them on the wrong side in Charlottesville, and they very much earned the blowback they’ve gotten over it.

            • Brien Jackson

              In the ACLU’s defense, clearly they couldn’t have predicted that Nazis would be violent.

            • Ithaqua

              The ACLU is in no way defending the violence in Charlottesville. Would you similarly say that the DMV that granted the homicidal driver a license (I’m presuming something here, of course!) wound up on the wrong side in Charlottesville, and should receive a lot of blowback over granting driver’s licenses in general?

              • Guest

                The DMV didn’t go to court to let a guy who claimed he wanted to kill all the Jews and their protectors with his car keep his drivers license. The ACLU went to court to let a bunch of Nazi’s who lied about crowd size and the extent they were bringing weapons and armor to the city to get their original permit keep said permit even though the Nazi’s lied and the ACLU knew the Nazi’s lied at the time they went to court. Worse, the ACLU who according to you do have a public safety exception for just this kind of instance, made the facial claim in court that just because the Nazi’s were armed and had proclaimed they would use violence against counter protesters was not sufficient reason to move the Nazi’s march to a larger and more secure location.

                Bottom line, the City said the Nazis lied on their original permit about crowd size, were promising violence, and were bringing guns and riot gear so maybe for public safety the event should be moved from the tiny crowded downtown park to the larger not as crowded park.

                The ACLU got a Judge to say that threats of violence to counter protesters and lies on the permit forms is not sufficient reason to move an event.

                That’s now law. Fuck em.

              • You keep pushing analogies, we have the actual case, argue that. The issue here is that you want the world to be ethically manageable by organizing it into neat little abstract Lockean atoms that can generalize. In your mind we cannot make legitimate judgments based on actual concrete, historical and contemporary realities, we can only consider general “political groups”.

                You seem to me to think that any decision or judgement concerning an individual group, which advocates specific policies and has a history and track-record, has to automatically transfer to other groups just because they happen to share what are ultimately irrelevant qualities. The relevant factor here is that we have a violent, eliminationist group, advocating violent, eliminationist policies with historical links and shared rhetoric to groups which have indeed managed to execute such policies, who have made every possible attempt to demonstrate that they intend to act accordingly to these facts. The relevant factor here is not that the group is generally “political” and thus any decision about them transduces to any other “political” group, it’s that they’re specifically atrocious and were an imminent danger. The fact that the ACLU helps groups like this side-step that realty and re-frame the debate as a debate about “free-speech” and not racial elimination and white supremacy is itself problematic.

                The failure of the Lockean rules framework is staring you right in the face, and has been for 300 years. It’s nice and pleasant, it lets otherwise comfortably, respectable, well-to-do liberals feel like they’re doing all that can or should be done while not putting even their comfort on the line, but it isn’t right. It’s failed us by justifying the elimination and enslavement of the Indians, the enslavement of the blacks, and the brutalization of common folk under the guise of propertarian legalism and Laissez-faire economics and continued to brutalize blacks and other minorities under the Jim Crow South and throughout the US . It’s now being used to cover the very worst that comes from us. I think that the ACLU should defend free speech, but they should not ignore the content of the speech. Their aid is an explicit condoning of the speech and acts of these groups, they can say “Nuh,uh” all they want, but that is the case. The fact that, as people have pointed out, they do in fact make a point of defending everyone and pulling the “I defend the right, not the execution of the right” is itself a grave moral error. You can dance around it and pretend it isn’t so, but this is the real world and not an LSAT puzzle.

                I’m not even saying that they need to actively oppose Nazis assembly rights (though I’d prefer they did), in recent conversations I said I’d accept “checking weapons at the door” and I’m grateful they came to their senses with that. I would prefer if they just didn’t back these people, and give them legitimacy (many videos from white supremacists and Nazis after the events are hammering the point that even the liberal ACLU supported them). The ACLU has the right as a group to do what they want. But if they’re sincerely trying to make the world a better place they and their supporters need to come to grips with this reality. It looks like they’re taking steps in that direction and that is good.

                • Ithaqua

                  If you don’t ignore the content of the speech, you aren’t defending free speech. You are defending pre-approved speech. And, when the government decides YOUR speech isn’t pre-approved, what then? You either shut up or go to prison, or get thrown out of a helicopter into the ocean. It really is that simple.

                • You think you can make a correct moral decision while abstracting from the content and context of an action, or you don’t care about the morality of it at all, in either case you are deeply mistaken.

                  This requires hard decisions, the community has to make these decisions. You can use scare “GOVERNMENT GONNA GET YOU” language of you want, but you know as well as I do then you’ve fallen into the exact trap gun nuts and libertarians have. It’s much easier to live life as a comfortable, nominally liberal, complacent professional class person if we just say anything goes and then leave it up to the cops or the terrorized communities to deal with the consequences. We get to save ourselves the compunction of taking our time and going through the stress of moral engagement with the issues. It is cowardice.

                  If we establish limits to speech, and those end up precluding speech that you deem morally necessary, you can and should engage in civil disobedience and argue for the contentof your speech, consequences come what may. And in such a system it will be necessary for us to engage in dialog about where those boundaries should be and the historical and practical criteria that should come to bear. It will require a braver and more engaged citizenry, but we don’t have a moral alternative.

                  The civil libertarian is isomorphic to the economic libertarian in this sense. Both avoid in engaging with the reality of the situation in favor of dealing in abstractions because it feels more comfortable– they can feel as though they are defending rights while in reality they are ignoring the imperative of defending actual people and are perpetuating their own privileges and societal injustices. Being a libertarian is easy and empty and you are better than that.

      • NonyNony

        Right. What the ACLU is taking baby steps towards here is the idea that armed protest is not protected by the 1st amendment. They haven’t actually done that yet – they are saying that armed protest by hate groups is not protected by the first amendment – but its a baby step.

        I’m okay with that. I don’t think that armed protest should be protected by the first amendment. Once you’ve moved to the armed protest stage the next step is civil war, not speech and debate.

        • Murc

          They haven’t actually done that yet – they are saying that armed
          protest by hate groups is not protected by the first amendment – but its
          a baby step.

          Really, we haven’t even really done that. All we’re really saying, if I’m reading this right, is that illegal armed protests by hate groups in violation of existing jurisprudence and law aren’t something we’re willing to fight on rights violations grounds.

      • CPPB

        In theory maybe, but not in practice. The Supreme Court is absolutely willing to apply “neutral” doctrines differently to right wing and left wing speech. Compare Schenck v. United States with Brandenburg v. Ohio, for example. Even if we ignore the fact that Nazi marches are about recruiting and organizing for genocide, helping Nazis march doesn’t really do anything to protect the rights of left-wing groups to march. The cops still beat the shit out of kids protesting NATO in Chicago. They still prevent anyone from protesting anywhere within sight of a presidential appearance. The Standing Rock protesters still get brutalized. The Feds still helped cops around the country coordinate their efforts to brutalize the OWS encampments. There are no neutral principles in the U.S. justice system, and the ACLU shouldn’t give financial support to Nazis and the KKK.

        • M Lister

          Compare Schenck v. United States with Brandenburg v. Ohio, for example.
          It is important to compare those – and, I think it’s at least plausibly relevant to understanding the decisions that, in Schenck and several similar cases, old white male supreme court justices could sort of imagine themselves being on the wrong side of socialist revolutions, but in Brandenburg the fairly duffusy Klans members were such that the old white males on the court couldn’t really take them that seriously. Probably more importantly, though, the cases were more than 40 years apart, the members of the court had totally changed (maybe even not 2nd generation overlap, though I’m less sure) and there had been a long series of important dissents by Brandies (and Holmes, who probably shouldn’t get credit, but does), as well as intervening steps. So, just to say, “compare Schenck to Brandenburg!” on its own isn’t enough or all that helpful.

          • CPPB

            Sure. It’s one example, but there are others. The late George Anastaplo was successfully prevented from being licensed as a lawyer because he refused to answer a question about membership in the Communist Party (admittedly, this was pre-Brandenburg by a coupe years). Free speech zones are legal and used to curtail protests all the time. It’s legal to harass women at abortion clinics, but if a striking union harasses scabs suddenly it’s illegal intimidation.

            But your point about the makeup of the Court is key. It’s politics all the way down! If we let racists run our politics, then the courts will apply the Constitution in ways that help racists and criminalize anti-racism. If capitalists run our politics, then courts will uphold restrictions on anti-capitalist speech. The justice system isn’t neutral.

            Murc’s point is correct that this lack of neutrality is bad and we shouldn’t just scrap it entirely, but I don’t think the appropriate response is to defend Nazis’ rights and hope the system applies them neutrally this time. We can draw lines at Nazis without giving up on the idea of constitutionalism entirely.

        • Murc

          The Supreme Court is absolutely willing to apply “neutral” doctrines differently to right wing and left wing speech.

          And this is a bad thing that we should oppose. I don’t see how we oppose it by arguing that facially neutral doctrines should be consigned to the ash heap of history; if you do that the courts flip from “we are often vehicles for the rights of the oppressed; we’re also often vehicles for keeping the boot on their neck” to “thanks for unshackling us, suckers! Now we don’t have to do the former at all anymore.”

          • You think the neutrality principle will save you, if only properly enforced. The evidence is overwhelming that it isn’t and won’t be properly or equitably enforced.

            Operating under the pretense that you should fight for the abstract right without taking into account the concrete situation is a shucking of human responsibility.

            I’m glad to see the ACLU taking steps in the right direction here.

            • Murc

              You think the neutrality principle will save you, if only properly enforced. The evidence is overwhelming that it isn’t and won’t be properly or equitably enforced.

              You are wrong. Full stop. Indeed, the evidence is overwhelming precisely in the other direction.

              Fighting under the pretense that you should fight for the abstract right without taking into account the concrete situation

              Nobody is advocating this.

              • So you think the weapons red line is good? If so then we are talking difference of degree and not kind.

    • Money is fungible. If, as a liberal, you are concerned about fighting hate speech and white supremacy your money is better put elsewhere. Mine is still going to SPLC instead.

      But this is very, very good. If you’re going to represent Nazis hate speech and groups, the least you can do is draw the line at armed ones.

    • CPPB

      The National Lawyers Guild, for example, doesn’t represent the KKK, Nazis, or other right-wing groups. As they say, “they represent people, not principles.” Members of the Guild’s Mass Defense Committee are also also usually the lawyers representing the day-to-day activists who get arrested at protests at their bond hearings, even when it’s not a case likely to have wide-reaching appellate consequences or national attention. Almost all of this is done through donated legal service because the Guild has a tiny fraction of the resources of a group like the ACLU. If you’re looking for a place to donate anti-Nazi dollars, the NLG will put it to good use.

      • humanoidpanda

        Thanks!

    • njorl

      They might consider refusing to represent groups which habitually engage in unprotected speech (calls to violence or “fighting words”), or at least groups for whom the unprotected speech is the primary reason for their seeking a forum.

      • Murc

        Calls to violence actually are protected speech under current 1A jurisprudence; just not calls to imminent violence or fighting words.

        Like, it is entirely legal to call for the violent overthrow of the US government in the abstract. This is protected speech. It is NOT legal to point at a Congressman (or, well… anyone really) and go “Get’im! String’im up!” That is unprotected speech and illegal in many ways.

  • D. C. Sessions

    One way to keep a lid on: the permit must specify the number of people attending (if only for sanitary reasons) and the city turns away any excess. Likewise, “guns at the door:” hand over the gun or leave.

  • MacK

    One problem – to me – is that although the concept of ‘fighting words’ is recognised on free speech issues, it is very little considered, though Alito raised it with respect to Westboro Baptist Church recently.

    The basic idea is that there is language and behaviours “calculated to cause a breach of the peace” and that the police have the power to restrict such behaviour in such a way as to limit that risk.

    I have to say it is transparent that armed, protective clothing, club carrying, sometimes masked white power types like these set out to cause a riot – it is what they wanted, it’s what they came prepared for. Surely that falls within ‘fighting words.’ Forcing them to disarm, get rid of clubs, masks, body-armour as a condition of their parade permit strikes me as a reasonable restriction.

    • D. C. Sessions

      It would have, but the Court has reconsidered the “fighting words” doctrine in light of Dredd Scott.

    • Murc

      Forcing them to disarm, get rid of clubs, masks, body-armour as a
      condition of their parade permit strikes me as a reasonable restriction

      Indeed, existing jurisprudence agrees with you on this score. Mask laws are held to be entirely consistent with the 1A, and rightfully so, and many places that have very expansive gun laws also have explicit carve-outs for restrictions for things like rallies, permits, and gatherings, especially ones that take place inside buildings. (Fun fact: many insurance companies will refuse to insure a building designed for public events, like a convention center, that allows any yahoo to walk in there heavily armed.)

      These are all very reasonable time, place, and manner restrictions designed to balance competing public interests.

      • Snakelite

        A good public interest argument could be made that these outdoor gatherings must be held in daylight, or that torches not be allowed.

  • Very, very good!

  • I don’t know what’s up with good organizations coming down with a case of the Stupids post-Charlottesville, but the EFF is doing it, too. They’re currently throwing a fit because Google and GoDaddy aren’t letting the Daily Stormer have their website.

    • Junipermo

      So how do I let the EFF know how strongly I disagree with their position?

      I got mad this morning because some muckety muck at Google was on NPR wringing his hands about whether Google should have the power to deny Nazis their platform. But this shouldn’t be a close call for supposedly decent people; no one is calling for anyone to be thrown in jail for hate speech. But if you’re having second thoughts about this, then we aren’t on the same side.

      • You arent buying my art!? You aren’t publishing my book?! You aren’t selling out my spoken word poetry reading?!

        You’re censoring me!

        • Junipermo

          Exactly. That we have to debate this now is tiring.

      • Snakelite

        It puts Google and GoDaddy in the position of being able suppress facts and ideologies. It’s a no-brainer to most of us when the voice being silenced is that of white supremacists, but we are a diverse society that holds many strong opinions. There is much on the internet that I find personally offensive. There are things I like that others find offensive. The unelected people who run the DNS servers should not have the power to decide what they think we should be allowed to see on the internet based on their personal opinions. If we really want them to silence opinions and ideas, then we need to figure out how there can be effective oversight. Personally, I believe if it doesn’t violate the law, it should not be censured.

        • Guest

          Not true at all. It puts Google and GoDaddy in the position of using ‘their’ ‘right’ to free association. Neither of the two businesses are saying that the Daily Stormer can’t publish, just that they won’t help them. And that has to be okay or the entire concept of free association goes out the window.

          • Ithaqua

            Oooh! Oooh! Let me get this one!

            My business chooses to exercise its right to free association by not doing business with Blacks!

            • Coz obviously those situations are exactly the same!

              • Again, I am struck by the selectiveness of some people’s agnosticism. There are apparently no coherent principles by which we can legally and morally distinguish between racist and anti-racist boycotts. But everyone ought to understand that a certain conception of civil liberties and protected speech is the “correct” one, right?

              • Ithaqua

                Yes, actually, they are.

                • Absolutely not. If you can’t tell the difference, how then can you know the difference between appropriate government regulations of political demonstrations and attacks on freedom of speech and assembly?

                  You can be consistent in saying that we can know the truth about none of these things and accept that that means you can make no coherent arguments about how to distinguish between an appropriate use of government power and an attack on freedom of speech and assembly. Or, you can abandon the extreme relativism you’ve been promoting here. You decide.

                • Ithaqua

                  You may not be aware of this, but freedom of association has a long history as the main argument in favor of school segregation and business being allowed to not serve / discriminate against blacks. When you bring it up in the context of Nazis, just substitute “black”. To repeat a line from “Guest” above, “And that has to be OK, or the entire concept of free association goes out the window.”

                • I indeed am aware of it. However, the lesson I take from that is not that freedom of association does not exist. Rather, it is limited, and one of those limitations is that you can’t refuse to serve people or employ people on the grounds of race. While a business cannot simply refuse to serve someone because of their politics, they can refuse to host someone whose politics violate their “terms of service”, and they can fire someone whose publicly expressed views get in the way of them doing their job.

            • Guest

              Does you business have a public store front open to the public at large? If not, go right ahead. I won’t patronize your business, but okay Nazi, you can do that.

              Does your business have a public store front open to the public at large? Well then you’re shit out of luck Nazi, because when you started your business you agreed to abide by certain rules the government sets in exchange for limited liability and taxes on only your profit and not total income. Those rules say, among other things, that if your business has a public store front open to the public at large you have to not discriminate based on certain protected classes. Discrimination based on race is one of them.

              See how that works? A person made choices to put themselves in the situation they were in, and non-discrimination laws are quid pro quo for tax benefits and limited liability. No one has to take that bargain, and even when they do, there are exceptions that let them be as bigoted as they want.

              In other words Nazi, you should really learn something about law and choices other than your First Amendment absolutism bullshit.

              • Ithaqua

                Calling me a Nazi because I believe the First Amendment is an important bulwark against tyranny seems… odd. You might want to rethink your position here.

                • Guest

                  No. I called you a Nazi because you said Germany and Austria would be better places if they didn’t ban Nazism. Now unless I missed something, if you advocate for the return of legal Nazism, you are by definition a Nazi. I’m fairly certain that’s how that works.

                  Also, it doesn’t help your cause that you have a very selective view of the First Amendment that things Free Speech is more important than Free Association. And that said selective view’s first instinct when challenged was to talk about banning Black people from your business; after which you do not even bother to respond to the actual rebuttal of your childish attempt to selectively ignore parts of the First Amendment.

        • “It puts Google and GoDaddy in the position of being able suppress facts and ideologies.”

          Most internet companies have things called “terms of service”. The fact that someone finds something “offensive” does not, in itself, tend to violate those terms of service. However, the Stormer’s personal attacks on the murder victim in Charlottesville, suggesting that the murder was a good thing for society, did violate those terms of service. They would most likely do so even on a platform such as Twitter, which as we know has been rather lax in enforcing its terms of service against those engaging in online harassment.

          I would hope that those who say they are for civil liberties would respect the right of a business to, within reason, impose terms of service, especially those intended to protect other users from intimidation and harassment and protect people from incitement to violence against them. Again, the idea that there is no way to distinguish between such behaviors and the posting of opinions people simply find offensive seems absurd to me.

    • Today’s Jonathan Chait “free speech” liberals have turned themselves into a sick farce of the old “states rights” backing southern liberals who backed the Lost Cause and tried to claim innocence via legalism.

      • humanoidpanda

        I do have to say that ther are issues with companies that are providing the physical infrastructure of the internet and don’t deal with content making decisions who to cut off and who gets to stay ( we don’t pressure power companies to cut the line to Spencer’s home).

        • If the daily stormer wants to buy some servers and pay some sypathetic IT goons to run them they can. This is like complaining of government censorship because they don’t buy everyone a printing press.

          • humanoidpanda

            That’s not how the internet works though. Your own server is not going to do much for you if you can’t get a DNS host or DDOS protection. ( there is a very strong case for treating internet infrastructure as utility for this exact reason).

            • Your own ‘zine isn’t going to go far if you’re just selling it at a cardboard table in the park, doesn’t mean 7-11 has to stock it or your rights are infringed.

              Honestly if the argument for the internet as utility means Google has to host these kinds of sites, you are just massively weakening the case for net neutrality/utility.

              • so-in-so

                There really are not any good analogies between the internet and physical space, but it’s more infrastructure than retail outlets. It might be closer to say Staples or Office Depot shouldn’t sell you ink or paper unless you sign a form that you won’t use it to print Nazi newsletters. Or Richard Spencer can’t travel on publicly funded roads. Sure, it would be great, but not really a legally practical approach.

                • Aaron Morrow

                  Is part of the problem that the internet is more like a privately
                  owned public space, where private organizations provide most of the
                  infrastructure? To use your metaphor, what if all the roads were
                  private roads?

                • so-in-so

                  I think that is closer. Now imagine we are going to sue or jail the owner of the road because Tim McVeigh used it to drive his truck bomb to Oklahoma City to bomb the Murrah building. I think it is OUTSTANDING that Google and GoDaddy decided the Daily Stormer violates their terms and booted them. I think someone insisting that they should have known it would and refused service before hand is iffy.

                • Aaron Morrow

                  Unlike the government, I think Google and GoDaddy do have the right to refuse service to individuals and groups before they provide the service, correct?

                  I don’t think I’m disagreeing with you, I’m literally asking if I’m correct!

                • Its not material though. Your analogy is more like Microsoft not selling Word to white supremacist groups, not Google refusing to host it.

                • rhino

                  Richard Spencer should not only be banned from public roads, but should be banned from breathing under the blue sky.

                  Might not be practical, but call me a dreamer.

            • Guest

              Absolutely not true. They can start their own DNS service and file with ICAN to be added to what is effectively the ‘lookup registry’. This is expensive and time consuming. But Google and GoDaddy are like publisher catalogs. Nothing says they have to feature the Daily Stormers Bullshit.

        • The right to a decent quality of physical life isn’t the same as the right to have your toxic opinion carried high and far.

          Edit: Not even that, the right to force others to facilitate your toxic opinion being spread high and far.

          • humanoidpanda

            Here is the root of our disagreement: I think that in the modern world, internet access is as much of a necessity as water or electricity. It’s not a “”luxury” like a printing press. I.e you can’t have a decent quality of life if you don’t have reasonable access to the internet.

            • humanoidpanda

              And, again, while you can buy your own printing press, your access to the internet, and thus to the public sphere, is really dependent on someone willing to provide you with a DNS host.

              • Google and Go Daddy certainly managed to equip themselves with a DNS hosting capability, I’m fully for the right of the Daily Stormer to do so if they choose.

            • Access to it, sure; the right to buy books. Right to mass publish on your own dime; yea, if Daily Stormer ran it’s own servers the government shouldn’t come in and shut it down . That right being construed so that others are forced to publish you or else it’s censorship: bullshit.

              • humanoidpanda

                Again, you simply don’t understand how the internet works. The internet runs on a DNS servers. You can’t buy your own, because there is literally a committe that decides who can and can’t run them. If no one who is authorized to run DNS servers is wiling to serve you, you are cut off. Period.

                • Then they can go back to printing zines.

                • humanoidpanda

                  And thus, we go back to the basic question: is the internet like water, road, electricity, in terms of living a fully realized modern life, or is it a luxury?

                • I’d say internet access is an essential: reading webpagrs and email. Running and publishing a webpage is a luxury.

                  If Google shuts down their E-newsletter, I’d say that’s too far.

                • Ithaqua

                  Ah, so what you’re saying would be analogous to “the roads are for the public, but it’s ok to refuse to sell you a car because I disagree with your politics?”

                • Yes. If a car dealer refused to sell or rent vans to white supremacists I’d back them.

                • Ithaqua

                  This seems… a legalistic trick, and nothing more. And it puts far too much power in the hands of corporations. They already have far too much, IMO. In a world where you can get fired for having a Hillary bumper sticker on your car, you might want to think very carefully about whether, e.g., Comcast management really is who you want as an arbiter of what should be shown on the internet.

                • A better world requires courageous people to advocate for what they believe in and engage in dialog with others. If someone fires someone for having a Hilary sticker, or a Trump sticker for that matter, it isn’t validated because someone else was fired because they advocated for the extermination of the Jews. Your right to go to confession and take communion is not infringed because my right to sacrifice children to Molech and keep a cadre of cult virgins is surpressed. If we worship legal syllogisms and abstractions we’ll fall into moral absurdity. We can and must make concrete moral distinctions.

                • Murc

                  This is actually super not legal. Places of public accommodation must generally speaking serve all comers subject to reasonable and neutral restrictions.

                  A car dealership could refuse to serve someone who showed up in Nazi regalia, or who showed up in politically partisan regalia, or without shoes, or wearing a sombrero.

                  If that person returned the following day dressed in regular clothes, they’d be obligated to serve them.

                • Re: the Daily Stormer, the proper analogy would be that Enterprise or whomever refused to rent vans to the groups this past Saturday to be used as transport to and from a white supremacist rally. Or the local party place refusing to rent A/V equipment for the rally. I have absolutley no problem with them doing so.

                • Just_Dropping_By

                  This is actually super not legal. Places of public accommodation must generally speaking serve all comers subject to reasonable and neutral restrictions.

                  Sorry, but what jurisdictions have public accommodation laws that cover political views? Colorado’s covers only “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry,” Colo. Rev. Stat. § 24-34-601(2)(a), which I would certainly read as permitting a business to refuse to serve neo-Nazis regardless of how well-behaved or neatly dressed they were.

                • Joe Paulson

                  To toss it out there, this link covers employment, since firing the protestors has been a subject of conversation:

                  http://www.jostonjustice.com/2017/08/charlottesville-marchers-few-remedies.html

                • Generally I’d say that if you refuse to serve a customer you’d best have a good reason for doing so. I believe Murc is right on this one, then.

                  A business could argue that a Nazi employee or supplier is bad for their image, employee relations or customer relations, so they are within their rights to fire their employee or find another supplier. But if a customer comes in, and I’m working there and I know them to be a Nazi, I would not be within my rights to simply refuse to serve them.

                • njorl

                  More like you can have a car and drive it on the roads, but we’re not going to let you put up billboards.

                • Snakelite

                  To us, it sounds good when we’re talking about white supremacists, but we have no idea what information or what ideologies the ones that run DNS servers will unilaterally decide to censure.

                • Owlbear1

                  They weren’t denied an IP address. They were denied hosting space.
                  Big difference. IF they built a server of there own they could get an IP address through a great many ISPs.

            • njorl

              If Nazis want to use the internet to pay the electric bill on their bunker, no one wants to stop them. If they want to do research on-line to support their conspiracy theories, no one wants to stop them.

              The use of the internet as a utility does not have to include the ability to create a propaganda site.

              • And the Stormer isn’t just a propaganda site. They discuss the best way to commit crimes, from simple harassment up to murder. They conspire to commit the same crimes. They’re not subtle or shy about it.

                “You have to give space to genocidal Nazis so they can discuss ways to kill innocent people” is probably not a good look for the EFF.

                • humanoidpanda

                  Did you see the news about the court case regarding the J20 protests? That site we also used to discuss ways to commit various crimes, most often arson, and now the DOJ is going after anyone who ever visited it.

                  Now, I am not a free speech absolutist, and if we have ways to hound child pornographers, we should find ways to shut down calls for genicidal vioence. But, giving corporations the untrammeled right to police the internet is a terrible idea.

                • “giving corporations the untrammeled right to police the internet is a terrible idea.”

                  True. And even when it comes to Storefront, while there’s a case to be made for the government getting some info specifically related to criminal activity, I would not for example support a government demand that Storefront hand over all information relating to its members.

        • Just_Dropping_By

          we don’t pressure power companies to cut the line to Spencer’s home

          I’ve actually wondered for years why various right-wing state legislatures haven’t to the best of my knowledge, tried amending their public utility laws to exempt electric/water/gas/etc. companies from compulsory service requirements in some manner calculated to allow turning off services to abortion clinics so that protesters could then threaten the utilities into shutting down service.

        • I agree that such powers should not be unlimited, but on the other hand, do we really want to say they must allow people to use their platforms to wage campaigns of harassment and vilification against people in order to silence them, and if so, how does this fit in with a broader concern for upholding human rights and democracy?

          • humanoidpanda

            It’s a tough call, but my criterion would be: saying that Jews are children of the devil should not be policed. Calling to surround synagogue X should be.

    • Zagarna_84

      I’m one thousand percent confident that EFF is right on that issue.

      I don’t care to entrust the regulation of free speech to governments, but I REALLY don’t care to entrust the regulation of free speech on the internet to private companies that aren’t even notionally subject to popular sovereignty. Internet service providers and website hosts should be regulated as common carriers, and required to offer services on a neutral basis to all comers.

      This is the point of net neutrality, among other things.

  • sibusisodan

    Trying to boil this down: it seems the ACLU starts from the position that the public square is a neutral venue and everyone has equal access.

    That’s the only way I can make sense of decisions to legally assist the expression of civil liberties in ways which defend and enforce the existing societal power structures.

    The starting assumption isn’t true. Liberty isn’t fungible. You can’t deal with my inability, as an oppressed person, to exercise my civil liberties, by making life easier for those with plenty of opportunities to do so already.

    A refusal to consider whose liberties, and to what end, seems to end up protecting the privileged.

    • Ithaqua

      1. Nazi-ism is not part of the existing societal power structure. 2. The privileged hardly need defense from the ACLU to express their views. 3. Law does not work if it says “people who have lots of opportunities don’t get equal rights before the law, because they have lots of opportunities.”

      • Aaron Morrow

        #1 is clearly not true.

      • sibusisodan

        1. White supremacy is. Parsing the difference between them right now seems like a waste of effort.

        2. Which is my point.

        3. A group declining to assist in another party’s dispute does not mean that party does not have equal rights before the law.

        • Ithaqua

          1. It does to me, so we’ll just have to disagree on that point. I also parse the difference between”white privilege” and “white supremacy.”
          2. Which is exactly counter to your point.
          3. It follows from this that you favor abolishing all legal aid, public defenders, etc. Since your record on this blog indicates that you don’t so favor, I can only assume you haven’t thought this point through. In a world where “equal rights before the law” is a goal, not anywhere near a reality, money still counts, and it counts for a lot. The rich have it, the lower classes do not. Who then will see to it that they actually do get something approaching their rights?

          • Aaron Morrow

            1. Trump brought Nazi-ism into the societal power structure.

          • Public defenders are Government, how does a non-governmental non-profit not backing white supremacists lead to no public criminal defender or mean that legal aid societies will stop helping the poor?

            • Ithaqua

              You have to parse the original statement carefully, I’m afraid, because of the negatives (“declining” and two “nots”.) The issue at hand, as I see it, is whether everyone actually would have equal rights before the law if no group, including the government, assisted them in their legal disputes. My contention is that they would not. Someone should help the not-rich in these situations. Should it be only the government? I think not! And if the resultant case law helps a rich person too, so what?

          • sibusisodan

            1. Fine, no probs.

            I think you haven’t understood me on 2, and it’s probably not worth going round again to figure out where.

            On 3, that’s a terrible misreading of what I’m saying.

    • Exactly, it’s the same song as the economic Libertarianism the Koch’s back, just in a different key.

      While I think the ACLU types are sincere, whereas the Koch’s aren’t even that, they need to be brought into the light

      • sibusisodan

        At the risk of enjoying the sound of my own…typing…for a minute. Civil liberties appears to be one of those topics with lots of solutions which are simple, easy…and wrong.

        Whatever side of the dividing line one comes down on, you should find it difficult. You should be having to wrestle with almost-contradiction, and maybe settle for a least-terrible solution.

        • Exactly, giving up the shield of easy formality, be it economic or in the civil liberties sphere is critical for the world moving forward.

    • Murc

      it seems the ACLU starts from the position that the public square is a neutral venue and everyone has equal access.

      This isn’t quite true.

      The ACLU starts from the positions that the public square is a neutral venue and everyone should have equal access.

      I mean… we’ve been pretty open about that. It’s one of our basic principles? I’m surprised there are people who don’t know that.

      The starting assumption isn’t true. Liberty isn’t fungible. You can’t
      deal with my inability, as an oppressed person, to exercise my civil
      liberties, by making life easier for those with plenty of opportunities
      to do so already.

      Er, yes, we can, because that’s how the law works.

      Legal precedent and doctrine is binding on everyone, not just the specific people involved in any given case. (There’s a reason any competent lawyer regards Bush v. Gore with abject horror.) The precise reason the ACLU gets involved in cases regarding morally odious people is because the membership is largely of the opinion, correctly I think, that such cases would establish legal precedents that would be turned around and deployed against the populace as a whole. I’m pretty sure history bears this out; the government has never gotten its hands on a narrowly-constructed precedent it didn’t like to turn around and expand into an extremely wide one.

      This is sometimes to our benefit; liberty has been expanded this way many times. Roe v. Wade is dependent on a wide and expansive interpretation, and precedents involving, the first amendment. So is Lawerence v. Kansas.

      It is also sometimes to our detriment; the state secrets doctrine has been expanded so far it might as well be blanket get out of jail free card.

      But the point is, many of our rights are secured by caselaw and precedent, and the nature of our legal system is such that these precedents and laws apply to everyone, all the time.

      • sibusisodan

        But the public square is not a neutral venue. The public square is a reflection of the societal structure which created it. There are automatically privileged and disprivileged speakers.

        To assume it’s neutral is to tacitly accept the existing inequalities.

        You are entirely correct, I think, about the importance of precedent and the applicability of law. But what was aiming at was a bit prior to something entering the legal system.

        My brain is telling me it’s time to stop before I fail to finish my

        I’ll carry on musing in the meantime. Cheers.

  • markefield

    It seems to me that the correct principle here is that open carry laws violate the freedom of speech of everyone else. We can see this most easily in the juvenile Heinlein expression that “an armed society is a polite society”. That’s the whole point of open carry — to intimidate others.

    It’s certainly a step in the right direction if the ACLU won’t defend armed protesters, but they should be protecting my 1A rights (and yours too) by seeking to strike down open carry laws.

    • Murc

      I’m gonna be honest.

      I think if its legal for people to carry guns in public at all, open carry should not just be allowed, but required.

      I think I should have a legal right to know precisely which idiots near me are packing heat. Concealed carry shouldn’t be allowed. I shouldn’t have to wait to find out who has a gun until they whip it out of their coat and it turns out the guy I thought was normal thinks he’s dirty harry. I want to see him coming so I can head the other way.

      • markefield

        I don’t think concealed carry should be allowed, but I think that raises different constitutional issues. Open carry intimidates people — as it’s designed to do — in a way that concealed carry does not. Yes, someone who carries a concealed weapon may harm you, but the criminal law already accounts for that. The current law, however, fails to account for the intimidation factor.

      • Joe Paulson

        How do I know if the person is an idiot?

        In most cases, people aren’t going to uh whip it out (Blazing Saddles). So, basically, you will have people intimidated and scared of average citizens, including someone who might otherwise be carrying a gun in their purse or satchel. And, “intimidation” will include people reacting in negative ways, such as more likely to attack.

        If we shouldn’t have carry at all, that’s another debate, but if we allow carry — and it will be allowed (including for people like police off duty etc. that many don’t mind having guns) — having thousands of people with guns showing will cause more problems.

      • Alex

        One thing I learned back when I was such a masochist that I read the comments on newspaper websites was that people who open carry are *super whiny*. Like “I open carried at a mcdonalds and people were staring at me. boo hoo hoo, this is worse than genocide.”

        Requiring open carry would not result in everyone open carrying (that’s the nature of hiding something), but I’m sure some of these law & order conservative types will finally be forced to face the fact that owning a gun makes them a threat to most people, not a hero.

    • Joe Paulson

      The ACLU for a long time got pushback from the usual suspects (including a person we know online) because it did not support an individual’s rights view of the 2A. They were fairly open about this. But, that’s an interesting angle and people have noted how stand your ground laws are a threat to republican values in a related way.

  • Warren Terra
  • addicted4444

    I don’t understand how a right to free speech can be compatible with a right to brandish guns in public. That circle cannot be squared.

    Barring very specific circumstances, bearing guns in public is intimidation meant to squash others and especially their free speech. There literally is no other purpose (outside of maybe pro hunting protests).

    • Joe Paulson

      The guns are really expressive communication. Yes, largely, this is a communication of intimidation, which at some point can be actionable. But, it clearly has an expressive content. Guns repeatedly clearly are not actually for self-defense, hunting or the like, but have some sort of expressive (which can be described either politely or sarcastically) meaning.

      There was a case where the Supreme Court held that burning a cross is clearly intimidating but there might be narrow cases where it didn’t break the law. So, e.g., if they do so in some isolated field. “Public” is a bit too absolute for me in that sense.

  • Even this is a difficult position for the ACLU to take. Some people, at least initially, defend the ACLU’s defence of neo-Nazi groups in court based on a superficially absolutist conception of “freedom of expression” that collapses on closer examination, or an even more superficial relativist position denying that humans are equipped to judge that Nazism and Klanism are utterly pernicious movements.

    However, a more charitable reading lurks behind these kneejerk responses. The government already has extensive powers to limit political protest and is, in many parts of the country, seeking to extend those powers further. We want to guard against abuses of those powers. Also, the ACLU is rightly concerned that a government mandate to use its powers to regulate political protest against particular ideologies is a power that is all too easily abused.

    All very true. However, there is a distinction between saying that a power can be abused, and that that power is inherently abusive. And it seems the ACLU is now starting to acknowledge that there are limits to what sorts of political expression an organization concerned with civil rights can be expected to defend.

    • Guest

      Which of course brings up the limits and absurdities of the “This can be abused!” argument. All power can be abused. You can’t have a government that doesn’t have some power that it can abuse without the so called government failing to meet the actual definition for government!

      We have to have real and upfront conversations about what powers we will tolerate giving to government and individuals knowing that some will abuse said powers versus what powers we thing are too potent to invest in government and individuals because their abuse even a little would not be tolerable.

      • Zagarna_84

        People have been having these conversations, mediated through the courts, for the past hundred-plus years. A whole lot has been said about it.

  • I do find it odd that some of those who insist that we can never know what terms like “hate group” mean are somehow very definite on the correct meaning of “freedom of expression” or the meaning of “protected expression” under a correct reading of the First Amendment.

    • Zagarna_84

      Oy. The problem is not that “we” don’t “know” what terms like “hate group” mean, it’s that “our” opinion of what constitutes a “hate group” is utterly worthless, on account of we aren’t the one writing the laws defining it.

      If the government chooses to define “hate group” as “anyone who expresses any idea other than white supremacy,” the First Amendment is the only thing standing between that definition and a totalitarian racist regime.

  • Joe Paulson

    “Romero added Thursday that the civil rights organization will also scrutinize clients more closely for potential violence at their rallies.” The ACLU said they are not to blame here and passed the blame to the city for not adequately defending the people. It’s a tad rich for them to do that given they are not naive sorts regarding how police departments etc. will act.

    Localities should also regulate open carry in respect to protests. Open carry is problematic in general but it is supposed to be in place as a means of self-defense. The protestors were using it more as a means of expression (intimidation included here).

    Finally, it is completely proper, including under recent Supreme Court precedent, to more strictly regulate weapons in certain contexts. A crowded public park is clearly a “sensitive place,” and “laws forbidding the carrying of firearms in sensitive places” were presumptive valid under D.C. v. Heller. If they were on some isolated hill somewhere, technically “public,” it might not be the same thing.

  • Daniel Quackenbush

    Does the ACLU mean they won’t defend anyone who brings a vehicle to a “hate group” rally? I really hate racists, but when free speech is under attack under the guise of “I hate that kind of speech,” my kind of speech is next, even though I never advocate violence except in genuine self-defense. It’s like the Fifth Amendment right to remain silent. If the bad guys don’t have the right to remain silent, the good guys don’t have the right to remain silent. I’m ordinarily an ACLU supporter, but I withdraw my support for them until they actually respect the Constitution again.

    • So armed rallies are protected speech under your reading of the Constitution?

    • Congratulations, they called off even nominating anyone else for The “Internet’s Dumbest Comment Award 2017”!

      Come on down and pick up the trophy!

  • LeoFromChicago

    Finally. They’re coming to their senses. Armed thugs are nobody’s definition of free speech.

  • zabieru

    Could work as a fool-me-once, though: “Ah, those guys with the rifles wearing your t-shirts weren’t members? Okay, we believe you, of course we do. So you’ll be putting “NO GUNS” on all your posters and having your marshals cordon off your march from armed non-members, then? No? Well, it’s been nice talking to you, here’s Sekulow’s number.”

  • The ACLU’s problem is that, um, the free expression issue isn’t just about, well, expression. These so-called people’s expression includes the potentiality (or actuality) of violence. Even considering acts of violence as acts of expression is a bridge too far for any sane person, and now apparently for the ACLU. Why violent people’s violence deserves the protection of the First Amendment is nuts.

    • Zagarna_84

      There’s a rather profound difference between the “potentiality” of violence, which is inherent in any public gathering, and the actuality of it.

      It’s obvious that violence doesn’t deserve the protection of the First Amendment, but it’s equally obvious that the mere possibility that violence might break out at a rally doesn’t justify shutting the rally down.

      An actual documented track record of violence by a group, plus a failure to take steps to curb it, is a different matter altogether, of course.

      • Alex

        The police knew in advance of the rally (and put it in an affidavit) that the people going to the rally were in violent organizations.

        Sure, any rally can turn violent in theory, but a rally with 1000 people from a group that advertises itself as a “fight club” for young white men, the KKK, and a militia poses a risk that is different in both degree and quality. Which you agree with, but just adding that we’re talking about the risk of violence in the context of an “actual, document track record.”

        If 1000 non-white people associated with violent organizations descended on a town, the police would have arrested them at the city limits.

        • Zagarna_84

          Yeah, I’ll confess that it’s a lot easier to state the general principle (rallies shouldn’t be shut down absent truly extraordinary circumstances) than to actually do the hard work of defining “truly extraordinary circumstances.”

  • Again, it is remarkable to see here arguements that there is no way to be anti-Nazi that is actually any better than being racist. Or that there is no line you can draw that puts Nazis, the KKK and their antics beyond the pale of acceptable political expression that would not also put BLM beyond that pale.

    Granted, acceptable and legal can’t always be the same category. Sometimes banning something makes things worse.

    Of course, people can always redraw that line to include BLM, but that could always be done anyway. Are are we to say there is no and there can be no line? I think if anyone tried an armed ISIS rally we’d soon see that that’s a crock.

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