What the ACLU Should Stand for in Trump’s America

An interview with Waldo Jaquith, who resigned from the board of the ACLU of Virginia after Charlottesville.

White supremacists stand behind their shields at the Unite the Right rally in Charlottesville, Virginia, on Aug. 12.

Joshua Roberts/Reuters

In the aftermath of Charlottesville’s deadly “Unite the Right” rally, the American Civil Liberties Union has been cast by some as an enabler and colluder in white supremacy and racial violence. Suddenly, the venerable group, which has enjoyed a surge in donations and popularity since the election of Donald Trump, finds itself at the center of a struggle over how gun rights inflect upon speech rights in Trump’s America.

In the days before the Aug. 12 white supremacist rally, the city of Charlottesville made the decision to move the march to a larger park where it could be policed more effectively. It was the ACLU, together with the Rutherford Institute, who joined in the white supremacist group’s case, taking the position that city officials moved the venue in large part due to the ralliers’ ideological views. When that argument prevailed in federal court, it set the stage for a horrifying day of street violence and racial harassment that culminated in the death of 32-year-old Heather Heyer and the injuries of many other nonviolent counterprotesters.

On the night of the rally, Waldo Jaquith posted a series of heartfelt tweets explaining why he was stepping down from the board of the ACLU of Virginia.

In the last month, the ACLU has done a considerable amount of soul-searching, with some members demanding that the group stand down from defending armed white supremacists. The ACLU’s California affiliate also issued a statement backing away from the long-standing line that all speech is created equal, writing, “If white supremacists march into our towns armed to the teeth and with the intent to harm people, they are not engaging in activity protected by the United States Constitution.” The national ACLU seemed to adopt that posture as well, with director Anthony Romero telling the Wall Street 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.”

This week, I asked Jaquith via email whether this was the outcome he’d been hoping to achieve. Our conversation, which has been condensed and edited for clarity, is below.

Dahlia Lithwick: What brought you to the ACLU of Virginia board in the first place? What values were you seeking to protect and promote, and what does this organization—that has stood alongside Nazis and Klansmen and provocateurs not infrequently throughout its history—mean to you?

Waldo Jaquith: The ACLU of Virginia and the national ACLU have provided me with legal representation in three separate First Amendment cases throughout my life, beginning as a teenager. I am [indebted] to the organization. When I was asked to join the ACLU of Virginia board, I regarded that service as a chance to repay that debt. I admire 90 percent of the cases that the ACLU takes and the remaining 10 percent, I respect. A good example of the latter category is the organization’s defense of the Washington football team’s trademark on the word Redskins. The team’s name is odious, but it is also protected as free expression and merits a vigorous defense. It is crucial that we have the ACLU to take such cases.

Talk a bit about the run-up to the “Unite the Right” rally. I know you were watching this unspooling for weeks and advocating against precisely the scenario that unfolded that day. What were your concerns and how did you square them with your own First Amendment values?

I’d paid only peripheral attention to the Unite the Right rally until a KKK rally was held in Charlottesville in early July. The state police did not handle that well, which was troubling. Modern-day KKK rallies don’t present any serious risk of physical violence, so it should have been a slam dunk for law enforcement. Insofar as that was a test run for how officials would handle the Nazi rally planned for a month later, that seemed like a bad sign.

Local activists paying closer attention than I was, notably Emily Gorcenski, had started to document some of the alarming online chatter from Unite the Right organizers. As I read through white nationalist discussion boards and listened to interviews with rally organizers, it became entirely obvious that the purpose of the event had nothing to do with statues, or free expression, and everything to do with the intent to draw an audience of opponents who they could violently assault. It later emerged that the Department of Homeland Security did the same research and came to the same conclusion, informing Charlottesville of organizers’ intent three days prior to the Aug. 12 rally.

The First Amendment guarantees “the right of the people peaceably to assemble.” Peaceably. When it became clear that the organizers’ goal was violence, that left me with no qualms about their lack of First Amendment rights in this matter.

When you tweeted that the ACLU bore some of the blame for the violence that ensued, were you being hyperbolic, or do you still believe that they were a cause of the deaths and injuries on the streets of Charlottesville? Needless to say the national ACLU strongly disputes that view of things, although it does seem to have adjusted its position to preclude the very thing you were objecting to. What do you tell your critics who contend that you have now allowed the government to be the arbiter of which unpopular voices get to gather and protest?

I was not being hyperbolic. I do think that we bear some of the blame. We knew that the organizers’ intended to commit violence (although no doubt some board members did not believe that despite the strong evidence). There’s no alternate reality in which we can see what would have happened if organizer Jason Kessler was not able to file a lawsuit to stop his Nazi rally from being moved. So the degree to which we helped to make this possible is not actually knowable. (I say “we” here because I was on the board at the time and, as such, any blame lands on my shoulders as well.)

To be clear, a lot of people, governments, and organizations bear blame here. It was infuriating to see Gov. Terry McAuliffe blaming the ACLU of Virginia when he surely bears more blame for his inaction than the ACLU does for its own actions. But I wasn’t on the board of the federal court (were that a thing) or on the Charlottesville City Council, etc. I was only on the board of the ACLU of Virginia, and, as such, bear fault insofar as the organization helped to facilitate this rally and the three resulting deaths.

The ACLU gets to pick which cases that it takes. There are important legal cases that the organization does not take, for lack of adequate resources, or because it’s a fight it just chooses not to have. You will not see the ACLU taking on any Second Amendment cases, as that is a part of the Bill of Rights that it prefers not to defend. We chose to take this case. We could have chosen not to, knowing that doing so would facilitate violence, as the ACLU chooses not to take so many other cases. Not taking the case wouldn’t have left the ACLU silent on the matter of free expression or the right to assemble—it would have just meant not getting involved in this one case. The ACLU decides, literally every day, not to take cases. This could have been one of them.

But, really, it’s not me that critics need to argue with: It’s the ACLU. In response to Charlottesville, the ACLU’s executive director recently declared that they will no longer represent protest groups who insist on carrying loaded firearms. That’s not an ideal litmus test for who to represent, but it’s better than anything that I can come up with.

I think you and I agree that this isn’t just a speech problem. This is a guns-plus-speech problem and we have no clear doctrinal lines with which to manage this, which is one of the reasons Charlottesville spiraled out of control last month. As Dara Lind ably summarized in Vox recently, “there isn’t an obvious bright line about what kind of speech is turned into a threat or an incitement when there’s a gun involved.” Do you have in your head some principled line between permissible speech with guns and that which leads to intimidation and violence?

No, I have no concept as to where the line is here. I’m not an attorney. It was clear to me that Unite the Right was over that line. On the other hand, it’s clear that National Socialist Party of America v. Village of Skokie was nowhere near that line since there was no threat of violence. Smarter people than I will devise a test about what to do when the First Amendment meets the Second Amendment. It is not an easy problem. I hope that the ACLU will help to find that line.

In the wake of Charlottesville, universities like Texas A&M and Michigan State have restricted speakers such as Richard Spencer from campus visits, rooting their decisions in claims about safety and fear of violence. But if these events are pure speech, and not armed rallies, they are closer to the Nazi march in Skokie than the Unite the Right Rally in Charlottesville, correct? Or is there something about Spencer or the alt-right that requires less First Amendment solicitude for them?

It is a la mode to say the First Amendment simply shouldn’t apply to Nazis, et al. I disagree with that position entirely. There is nothing about Nazi speech that is somehow more dangerous than any other speech. If the First Amendment is to mean anything in the United States, then it must protect the speech of Spencer and his ilk, and we need the ACLU to stand up for those rights. Unless Spencer is holding an armed rally of Nazi militias, in which case, I’m glad to know that the ACLU now won’t take the case.