The American Civil Liberties Union has been much scrutinized since its decision to represent white supremacists in their quest to march in Charlottesville, Va. Board members have resigned and allies have declared that the ACLU, at long last, has gone too far. In the aftermath, the ACLU of California issued an equivocal statement, endorsed by the national ACLU, clarifying that the 1st Amendment “does not protect people who incite or engage in violence” but reiterating the organization’s complete support for “freedom of speech and expression.”
Commentators have rightly observed that the ACLU has defended far-right speech since its founding, despite fierce criticism. But there is a common and mistaken premise in this analysis. It assumes that the organization has always believed, as it does today, that “freedom of expression is an end in itself.” In reality, the early ACLU viewed free speech as a tool of social justice, suited to particular purposes under particular conditions.
To correct the prevailing misconception, we need to look back to the 1930s, when economic desperation was fueling a battle between reactionary impulses and radical aspirations, and Nazis first appeared on American streets. Even as American fascists appealed to anti-Semitism and white privilege, the ACLU fought for their right to hold rallies. Although it did not oppose regulations against armed marches, it insisted that “the right to parade,” even “in brown shirts with swastikas,” should “never be denied.”
Why did the ACLU defend Nazis when they were terrorizing Germany and their virulence was painfully apparent? As the organization acknowledged in its pamphlet on Nazi speech, it was a “practical tactic” as much as an “abstract principle.”
A core contingent of the ACLU leadership hoped that an expansive interpretation of the 1st Amendment could pave the way to fundamental economic change, above all through the movement to organize America’s workers. The organization’s founders described themselves as “partisans of labor.” And they understood that the courts, which historically were hostile to unions, were disinclined to distinguish between the intimidation posed by Nazis marching in uniform and the intimidation posed by workers on a picket line.
Defending radical tactics exposed the ACLU to charges that it was just as subversive as the agitators it represented. Defending Nazi speech furnished a compelling response. When one government lawyer sought to deflect a labor picketing challenge by accusing ACLU general counsel Arthur Garfield Hays of fronting for Communists, the judge pointed out that Hays, who was Jewish, had previously represented a Nazi group. “Certainly you cannot accuse Mr. Hays of being a Nazi,” he reflected.