NEW YORK — Faced with an angry backlash for defending white supremacists’ right to march in Charlottesville, the American Civil Liberties Union is confronting a feeling among some of its members that was once considered heresy: Maybe some speech isn’t worth defending.
Cracks in the ACLU’s strict defense of the First Amendment no matter how offensive the speech opened from the moment a counter-protester was killed during the rally in Virginia. Some critics said the ACLU has blood on its hands for persuading a judge to let the Aug. 12 march go forward. An ACLU leader in Virginia resigned, tweeting, “What’s legal and what’s right are sometimes different.”
“This was a real tragedy and we’re all reeling,” said Lee Rowland, a senior staff attorney at the ACLU’s headquarters in New York City. “Charlottesville should be a wake-up call to all of us.”
The backlash, reminiscent of one that followed the ACLU’s 1978 defense of a neo-Nazi group that wanted to march through Skokie, Illinois, a Chicago suburb with a large number of Holocaust survivors, set off a tumultuous week of soul-searching and led to a three-hour national staff meeting in which the conflict within the group was aired.
What resulted from the backlash was an announcement that the ACLU will no longer stand with hate groups seeking to march with weapons, as some of those in Charlottesville did.
Andrew Shurtleff, The Daily Progress via AP, Pool
From left, Marcus Martin, hugs his fiancé Marissa Blair as Susan Bro becomes emotional during a memorial for Heather Heyer, Wednesday, Aug. 16, 2017, at the Paramount Theater in Charlottesville, Va. Heyer was killed Saturday, when a car rammed into a crowd of people protesting a white nationalist rally. Martin pushed his fiance out of the way of the vehicle that killed Heyer.
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A chalk message calling for a park to be renamed after Heather Heyer is written in the street where she was killed and 19 others injured when a car slamed into a crowd of people protesting against a white supremacist rally, Aug. 16, 2017 in Charlottesville, Virginia. Charlottesville will hold a memorial service for Heyer Wednesday, four days after she was killed when a participant in a white nationalists, neo-Nazi rally allegedly drove his car into the crowd of people demonstrating against the 'alt-right' gathering.
Evan Vucci, The Associated Press
Mourners and clergy pray outside the memorial service for Heather Heyer, who was killed during a white nationalist rally, Wednesday, Aug. 16, 2017, in Charlottesville, Va.
Evan Vucci, The Associated Press
Cynthia Sullivan of Charlottesville, Va., stands in line for a memorial service for Heather Heyer, who was killed during a white nationalist rally, Wednesday, Aug. 16, 2017, in Charlottesville, Va.
Evan Vucci, The Associated Press
Mourners and clergy pray outside the memorial service for Heather Heyer, who was killed during a white nationalist rally, Wednesday, Aug. 16, 2017, in Charlottesville, Va.
Joshua Replogle, The Associated Press
Susan Bro, the mother of Heather Heyer, holds a photo of Bro's mother and her daughter, Monday, Aug. 14, 2017, in Charlottesville, Va. Heyer was killed Saturday, Aug. 12, 2017, when police say a man plowed his car into a group of demonstrators protesting the white nationalist rally. Bro said that she is going to bare her soul to fight for the cause that her daughter died for.
Julia Rendleman, The Associated Press
Artist Sam Welty creates a chalk mural of Heather Heyer during her memorial service Wednesday, Aug. 16, 2017, in Charlottesville, Va. Heyer was killed Saturday, when a car rammed into a crowd of people protesting a white nationalist rally.
Julia Rendleman, The Associated Press
Sen. Tim Kaine, left, and Charlottesville mayor Michael Signer visit a makeshift memorial Wednesday, Aug. 16, 2017, where Heather Heyer was killed when a car rammed into a crowd of people protesting a white nationalist rally Charlottesville, Va.
Julia Rendleman, The Associated Press
A man prays at a memorial at 4th and Water Streets, Tuesday, Aug. 15 2017, in Charlottesville, Va., where Heather Heyer was killed when a car rammed into a group of counterprotesters last weekend. Alex Fields Jr., is charged with second-degree murder and other counts after authorities say he rammed his car into a crowd of counterprotesters Saturday, where a white supremacist rally took place.
Evan Vucci, The Associated Press
Mourners and clergy pray outside the memorial service for Heather Heyer, who was killed during a white nationalist rally, Wednesday, Aug. 16, 2017, in Charlottesville, Va.
Andrew Shurtleff-Pool, Getty Images
Susan Bro, mother to Heather Heyer, speaks during a memorial for her daughter, Wednesday, Aug. 16, 2017, at the Paramount Theater in Charlottesville, Va. Heyer was killed Saturday, when a car rammed into a crowd of people protesting a white nationalist rally.
Andrew Shurtleff-Pool, Getty Images
Susan Bro, mother to Heather Heyer, speaks during a memorial for her daughter at the Paramount Theater on Aug. 16, 2017 in Charlottesville, Va. Heyer was killed Saturday, when a car rammed into a crowd of people protesting a white nationalist rally.
Andrew Shurtleff-Pool, Getty Images
Marcus Martin (R) hugs his fiance Marissa Blair during a memorial for Heather Heyer at the Paramount Theater on Aug. 16, 2017 in Charlottesville, Va. Heyer was killed Saturday, when a car rammed into a crowd of people protesting a white nationalist rally.
Andrew Shurtleff, The Daily Progress via AP, Poo
Family members of Heather Heyer exit after a memorial for Heyer, Wednesday, Aug. 16, 2017, at the Paramount Theater in Charlottesville, Va. Heyer was killed Saturday, when a car rammed into a crowd of people protesting a white nationalist rally.
Evan Vucci, The Associated Press
People leave a memorial service for Heather Heyer, who was killed during a white nationalist rally, Wednesday, Aug. 16, 2017, in Charlottesville, Va.
Chip Somodevilla, Getty Images
People embrace at the spot where Heather Heyer was killed and 19 others injured when a car slammed into a crowd of people protesting against a white supremacist rally, Aug. 16, 2017 in Charlottesville, Virginia. Charlottesville will held a memorial service for Heyer Wednesday, four days after she was killed when a participant in a white nationalist, neo-Nazi rally allegedly drove his car into the crowd of people demonstrating against the 'alt-right' gathering.
Chip Somodevilla, Getty Images
A woman leaves a message in chalk on the street where Heather Heyer was killed and 19 others injured when a car slammed into a crowd of people protesting against a white supremacist rally, Aug. 16, 2017 in Charlottesville, Virginia. Charlottesville will held a memorial service for Heyer Wednesday, four days after she was killed when a participant in a white nationalist, neo-Nazi rally allegedly drove his car into the crowd of people demonstrating against the 'alt-right' gathering.
Chip Somodevilla, Getty Images
A sign calling for Emancipation Park to be renamed after Heather Heyer is placed at the base of a statue of Confederate Gen. Robert E. Lee, blocks from where she was killed and 19 others injured when a car slammed into a crowd of people protesting against a white supremacist rally, Aug. 16, 2017 in Charlottesville, Virginia. Charlottesville will hold a memorial service for Heyer Wednesday, four days after she was killed when a participant in a white nationalist, neo-Nazi rally allegedly drove his car into the crowd of people demonstrating against the 'alt-right' gathering.
Evan Vucci, The Associated Press
A photo of Heather Heyer, who was killed during a white nationalist rally, sits on the ground at a memorial the day her life was celebrated at the Paramount Theater, Wednesday, Aug. 16, 2017, in Charlottesville, Va.
“If people are gathering armed to the hilt and hoping for violence, I think the ACLU would be doing damage to our free-speech rights in the long term,” Rowland said.
The newfound limit on how far the nearly century-old ACLU is willing to go to defend free speech sets up intriguing choices in the months ahead. Will it intervene, for example, in the case of a white nationalist rally at Texas A&M that the university canceled after Charlottesville? The ACLU said it won’t discuss when and where it might take a stand.
The seeds of upheaval in Charlottesville were planted when a judge agreed with the ACLU that white nationalists should be able to protest the removal of a statue of Confederate Gen. Robert E. Lee where the monument stands, instead of at a neutral site sought by city officials.
It was a position consistent with the ACLU’s history of defending free-speech rights for protesters on all parts of the spectrum. But then James Alex Fields Jr. was accused of using his car to kill 32-year-old Heather Heyer and injure several others who were staging a counter-demonstration.
Within hours, a board member of the ACLU’s Virginia branch, Waldo Jaquith, resigned and fired off a stinging tweet that ended with, “I won’t be a fig leaf for the Nazis.”
In an opinion piece in The New York Times, K-Sue Park, a race studies fellow at the UCLA School of Law, argued that the ACLU’s defend-in-all-cases approach to the First Amendment “perpetuates a misguided theory that all radical views are equal,” adding that group is “standing on the wrong side of history.”
Virginia Gov. Terry McAuliffe went further, accusing the ACLU of creating a “powder keg” in Charlottesville. The ACLU of Virginia responded by saying it was “horrified” by the violence but didn’t cause it.
“We do not support Nazis,” it said. “We support the Constitution and the laws of the United States.”
After the 1978 furor over the neo-Nazi rally in Skokie, which never actually got off the ground, the ACLU stood firm even as it received hate mail and hundreds of members quit.
The latest criticism of the ACLU has come from some of the same people who had heaped praise and donations on the organization for its resistance to President Donald Trump’s travel ban. Membership surged from 425,000 to 1.6 million, with $90 million in online contributions, in the months since Trump’s election.
“The ACLU has faced much worse before and emerged stronger and more dynamic,” said Ron Kuby, a New York civil rights attorney. “Refusing to represent people who intend to march while visibly armed is a reasonable line to draw given what we’ve seen from the white supremacists.”
ACLU member and Charlottesville resident Ira Bashkow said he never considered quitting the group but feels the disturbing episode in his city showed it has to rethink its “old-line” approach to the First Amendment.
“I believe in the right to free speech, but it doesn’t mean (demonstrators) can say whatever they want and hold a weapon at the same time,” he said.
Stacy Sullivan, an associate director with the ACLU, said that after Charlottesville, a small increase in people quitting as members or dropping off social media last week was made up for by new sign-ups.
She said the ACLU will not shy away from taking unpopular positions.
“If you can’t stomach respecting the First Amendment rights of people you despise,” Sullivan said, “you don’t work here.”