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Excerpted From: Nadine Strossen, The Interdependence of Racial Justice and Free Speech for Racists, 1 Journal of Free Speech Law 51 (2021) (62 Footnotes) (Full Document)


Michael Powell's June 7, 2021 New York Times article--“Once a Bastion of Free Speech, the A.C.L.U. Faces an Identity Crisis” a perennial issue that has roiled not only the ACLU, but also society in general, throughout my adult lifetime: do we have to choose between freedom of speech and other aspects of the civil liberties/human rights agenda? Since the ACLU's founding, more than a century ago, it has defended all fundamental freedoms for all people, including free speech and equality, especially for people and groups that have traditionally been subject to discrimination. Some ACLU critics charge that its vigorous advocacy of equality rights is somehow antithetical to its free speech advocacy. Conversely, other ACLU critics charge that its ongoing defense of free speech rights even for those who convey anti-civil-liberties messages is somehow antithetical to its equal justice advocacy.

The ACLU's mission closely parallels government's responsibility: to uphold all rights for everyone, neither privileging particular rights over others, nor privileging the rights of particular people or groups over others. Therefore, debates about the ACLU's efforts to promote our interlocking national aspirations of “liberty and justice for all” has resonance for government policy as well. The ACLU-focused debates mirror more general debates about the appropriate prioritization of racial justice and free speech in our public sphere--for example, in public schools and universities.

I. The Symbiotic Relationship Between Liberty and Equality

As a champion of the full spectrum of civil liberties and human rights-- including freedom of speech and equality--I continue to be convinced that these rights are essentially mutually reinforcing, rather than at odds with each other. My conclusion is based on observing how these rights have actually operated in practice, both in the United States and around the world, and correspondingly how restrictions on these rights have actually operated.

On the one hand, freedom of speech cannot be fully realized until and unless it can be exercised by everyone in our society, including those who traditionally have been denied equal access to the educational, technological, and other resources that facilitate speech. On the other hand, equal liberty and justice for all cannot be fully realized without robust free speech rights, which are especially essential for advocating the rights of racial, ethnic, and other minority groups, including political dissidents. For these reasons, the ACLU's advocacy of equality rights is an essential aspect of its work for free speech, and the ACLU's advocacy of free speech is an essential aspect of its work for equality rights.

As far back as 1975, constitutional law scholar Kenneth Karst explained the symbiotic relationship between liberty and equality:

[T]he constitutional values of equality and liberty are fundamentally linked by the notion that equal access to certain institutions and services is a prime component of any meaningful liberty. This link is reflected in the language of egalitarian movements. The civil rights movement of the 1960s, for example, marched under the banner of “Freedom” even though its chief objective was equal access--to the vote, to education, to housing, even to lunch counters. “Liberation” is today a theme of more than rhetorical significance in egalitarian causes such as the women's movement.

Regarding free speech, the ACLU's goal--paralleling our nation's goal--must be to empower all members of our society to have meaningful opportunities to speak, no matter who they are, and no matter what they believe. University of Pennsylvania Professor Sigal Ben-Porath has aptly labeled this concept “inclusive freedom.” Focusing on the overarching goal of inclusive freedom of speech, the ACLU's work to promote equal justice is not only consistent with its free speech agenda, but also an essential element of its free speech agenda.

One dramatic illustration of the integral interrelationship between free speech and racial justice--and between censorship and racial oppression--is what Harvard Law School Professor Randall Kennedy has powerfully described as the most extreme example of censorship in U.S. history: the antebellum laws that made it a crime to teach enslaved African Americans (and in some cases even freed Blacks) to read or write. As a Harpers Weekly article commented in 1867, referring to the pre-Civil-War South: “The alphabet is an abolitionist. If you would keep a people enslaved refuse to teach them to read.” The legacy of these laws that silenced and subjected African Americans has been perpetuated through segregated and unequal school systems that continue to deprive Black students of the equal and adequate public educations to which they are legally entitled. Therefore, when the ACLU continues to fight for educational equity, it is simultaneously fighting for both racial justice and meaningful, equal free speech rights.

Correspondingly, when the ACLU fights battles that focus on free speech, they also are essential for promoting racial justice and other equal rights and social justice causes. In 1947, journalist A.J. Liebling famously quipped that “Freedom of the press is guaranteed only to those who own one.” The ACLU has been working to change that impoverished free speech reality in multiple ways, including by leading the fight for a free and open Internet, which can potentially make everyone the functional equivalent of a printing press owner. When the Internet first burst onto the political and public radar screen, in the 1990s, the ACLU lobbied and litigated against censorial federal and state laws, which would have vastly reduced the Internet's availability as a platform for free-flowing communications by any individual or group. Thanks to the Supreme Court's landmark 1997 ruling in Reno v. ACLU, the Internet has empowered grassroots groups, including Black Lives Matter and Me Too, to mobilize for multiple progressive causes that could not have gained such traction through the vastly more expensive, exclusionary pre-Internet communications tools.

When Donald Trump was deplatformed by Twitter and Facebook, the ACLU expressed its concern about the unchecked power that such dominant tech giants wield over individual speech and civic discourse, stressing the special adverse impacts on traditionally marginalized voices. Kate Ruane, an ACLU Senior Legislative Counsel, stated: “President Trump can turn to his press team or Fox News to communicate with the public, but others--like many Black, Brown, and LGTBQ activists who have been censored by social media companies--will not have that luxury.”

The most recent Supreme Court term (2020-21) affords further examples of noteworthy ACLU free speech cases that are especially important for amplifying the voices of traditionally disempowered and marginalized individuals and groups, as well as equal justice advocates. One of these cases, Mahanoy School District v. B.L., has been widely hailed as a landmark ruling, the Court's first decision upholding public school students' free speech rights since its 1969 landmark case that also did this: Tinker v. Des Moines School District, which was also an ACLU case. Since most public school students, including the ACLU's client in the Mahanoy case, are under the age of majority, they do not exercise the basic right to vote, and they also are barred from exercising many other rights and opportunities that are available only to adults. Therefore, freedom of speech is especially significant for such students, as their major vehicle for influencing the school policies that have such a great impact on their lives and futures, and also for influencing broader societal policies.

In the ACLU's other notable free speech case on the high Court's docket this past term, it represented Black Lives Matter leader DeRay Mckesson, challenging a ruling by the Fifth U.S. Circuit Court of Appeals that “poses an existential threat to the exercise of ... First Amendment rights” by “would-be protesters, ... particularly ... those who espouse unpopular opinions.” The Fifth Circuit rejected Mckesson's First Amendment defense to a police officer's tort lawsuit seeking damages for injuries he suffered after being struck by a rock that was thrown by an unknown participant in a demonstration that Mckesson organized. It was undisputed that Mckesson neither intended, authorized, directed, nor ratified the perpetrator's act, nor engaged in or incited violence of any kind. As noted by Judge Don R. Willett, in dissenting from the Fifth Circuit's ruling, its imposition of “'negligent protest’ liability against a protest leader for the violent act of a rogue assailant ... would have enfeebled America's ... civil rights movement, imposing ruinous financial liability against citizens for exercising core First Amendment freedoms.”

In November, 2020, the Supreme Court granted the ACLU's petition seeking the Court's review of the Fifth Circuit's decision, vacated the Fifth Circuit's judgment, and remanded the case to the Fifth Circuit, directing it to seek guidance on potentially controlling Louisiana tort law from the Louisiana Supreme Court. Stressing that the case is “fraught with implications for First Amendment rights,” the high Court suggested that Mckesson might not even be liable under Louisiana tort law principles, hence obviating the need to address the constitutional issues.

A friend of the court brief that a group of First Amendment scholars submitted to the high Court supporting the ACLU's cert. petition well captured this case's significance for equal rights and other social justice advocates. What is at stake, it explained, is preserving “civil demonstration as a primary mechanism through which ordinary citizens can change the world,” referring to the “countless ... Americans who prodded, provoked, and pushed the United States to actually be the nation it imagined itself to be.”

Just as freedom of speech cannot be fully realized without robust equality rights, the converse is also true. By definition, members of any minority group lack majoritarian political power. Therefore, minority groups must rely on the power of persuasion: raising their voices, individually and collectively, to persuade other members of the community and elected officials. Over and over again, throughout U.S. history (and in other countries), equal rights and social justice movements have gained momentum through forceful exercise of free speech rights to advocate and demonstrate, litigate and lobby. Correspondingly, censorship is consistently wielded in an effort to stymie these causes. Throughout U.S. history, prime targets of censorship have included proponents of progressive causes that were deeply opposed by the majority of the public, including: abolitionists, women's suffragists, birth control advocates, labor union organizers, anti-war activists, socialists, Communists, and civil rights demonstrators.

Thanks to the robust free speech principles that the Supreme Court began consistently to enforce during the civil rights movement--including in many cases that directly struck down a range of measures seeking to stifle the expression of civil rights demonstrators and their supporters--what had originally been “voices in the wilderness” were able to gain popular and political support. Hosea Williams, who was one of Martin Luther King's chief lieutenants, observed: “The problem with the black struggle in American [was] that black leaders like King didn't [initially] have the ability to communicate with the masses. Once they had that ability ..., things changed.” In short, it is the disempowered, not the powerful, who have the most to gain from strong free speech protection, and the most to lose from its weakening.

To this day, state and local governments around the country have been disproportionately enforcing existing laws, and enacting new ones, to stifle protesters for progressive causes including racial justice and police reform. There also has been a recent spate of state laws that simultaneously stifle free speech and equal justice (as well as academic freedom) by outlawing the teaching of “divisive” concepts concerning matters including race and gender, and by constraining discussions of diversity, equity, and inclusion. Let me cite yet another example of censorial tools being wielded to suppress progressive activism, which the ACLU has been challenging: Customs and Border Patrol agents' targeted surveillance of immigrant rights activists at the U.S.-Mexico border and journalists covering them, which predictably has a chilling effect on critics of government immigration policy.

Fortunately, the strong speech-protective principles under current First Amendment law will ultimately defeat the foregoing measures. But if those speech-protective principles were to be eviscerated--ostensibly to reduce the power of entrenched elites, as free speech critics contend--these suppressive measures could well survive; that would be an ironic, albeit predictable, result. In sum, the ACLU's multi-pronged efforts to defeat all of these initiatives promote both free speech and equal justice.

[. . .]

My favorite line in the recent New York Times piece was ACLU Executive Director Anthony Romero's answer to the question: “Is the ACLU a free speech or a racial justice organization?” His answer: “Yes. We are a domestic human rights organization.” That answer reflects our country's grandest aspirations, and the ACLU's parallel mission to bring our nation's actual reality closer to those founding ideals: both “liberty” and “justice” not only for some, but “for all.”

John Marshall Harlan Professor of Law, Emerita, New York Law School; former President, ACLU, 1991-2008.

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