IN THE SUMMER of 1964 a television repairman and Klansman called Clarence Brandenburg invited a television reporter to join him at a hooded rally in rural Ohio. The resultant footage of Brandenburg and other goons standing by a burning cross and vowing to take “revengeance” against blacks and Jews landed him in jail for inciting violence. He was sprung by the Supreme Court, after it ruled that such a threat was too vague to abrogate his right to free speech. That precedent—the court’s last word on inflammatory language—was the nub of Donald Trump’s defence this week.
Enjoy more audio and podcasts on iOS or Android.
It was a poor legal argument, because an impeachment is not a criminal trial, which makes the Brandenburg case barely relevant. But it was a strong political one. Mr Trump is appealing to partisan emotion, not reason. And a belief that the left hates free speech is scripture on the Fox-MAGA right. Thus the war on political correctness Mr Trump promised, when he dared to call Mexicans rapists and Christmas merry. And he has since exacerbated this grievance by characterising the two big social movements of his presidency, #MeToo and Black Lives Matter, as twin prongs of a liberal conspiracy to stifle, or “cancel”, conservative voices.
“You’re not allowed to use the word “beautiful” anymore when you talk about women,” was Mr Trump’s take on #MeToo. The BLM protests, he said, were intended “to silence dissent…to bully Americans into abandoning their values.” This ultra-politicisation of civil liberties may be as ominous as anything he has done. Rights subject to a partisan interpretation are not secure (never mind civil). It is also especially threatening to the rights organisation that would naturally hold the line against Mr Trump: the American Civil Liberties Union, which defended Brandenburg and has been the foremost defender of civil liberties for a century.
Left-leaning, though non-partisan, the ACLU has traditionally maintained its influence by suing the governments of both parties in roughly equal measure. It sued George W. Bush’s administration for torturing people, for example; and Barack Obama’s for killing them with drones. This has not always convinced conservatives that it had their backs. George H.W. Bush derided his Democratic opponent, Michael Dukakis, as a “card-carrying member of the ACLU”. Yet such hostility was mainly a response to the organisation’s work on civil rights, which Republicans defined themselves against long before Mr Trump. And a related libertarian gripe, that the ACLU had been captured by minority interests to the cost of its defence of civil liberties, has for the most part been unconvincing.
A cursory review of the centre-right press suggests this incendiary claim has been made, in much the same alarmist Bill-of-Rights-going-to-the-dogs tone, since the 1980s. Meanwhile, ACLU lawyers have carried on defending the speech and assemblies of Nazis—in Charlottesville three years ago just as among the Holocaust survivors of Skokie, Illinois, in 1978—as dutifully as ever. Aryeh Neier, an admired ACLU director of the 1970s (and himself a Berlin-born fugitive from Nazism) says he sees no reduced commitment on that score. The only significant evidence to the contrary—much tutted over by civil libertarians—appears to be a post-Charlottesville determination by the ACLU’s current director, Anthony Romero, that the group should no longer help armed groups hold rallies. That does not seem like a big worry.
Yet just because American liberties are in safer hands than many claim does not make them invulnerable to new threats. Illiberalism is on the rise on the left as well as the right. Polls of college students suggest they are more worried about offensive language than free speech—“a serious cause of concern”, Mr Romero notes. And the same woke spirit, increasingly evident in boardrooms and newsrooms, has reached the ACLU. The organisation’s transgender activism elides sex and gender identity. The ACLU’s deputy director for transgender justice suggested last year that a book hostile to that unscientific view should be banned. He was tweeting in a personal capacity, Mr Romero notes, and an organisation dedicated to free speech cannot object to that. Yet the ACLU ’s decades-old claim that its work on civil rights and civil liberties are mutually reinforcing is under pressure.
Mr Romero acknowledges the tension. He admits to spending more and more time arguing the case for classical civil liberties inside his organisation. In time, he suggests, the more woke elements of his staff will come to accept them: “Leadership matters”. Maybe so. Yet politics as well as the culture are against it.
The ACLU ’s long tradition of sticking it to both parties has been a force for moderation inside the organisation as well as out. “If we became the civil liberties wing of the Democratic Party we would become irrelevant. It would be a death knell for civil rights and civil liberties,” Mr Romero says. Yet the more profoundly illiberal drift of the Republican Party has made it hard for the ACLU to maintain its customary even-handedness. It sued Mr Trump’s administration over 400 times and advocated impeaching him twice. Thanks to the gusher of money this elicited from approving liberals, it meanwhile doubled in size. It would be odd if that surge, borne of opposition to Mr Trump, had not moved it in a partisan direction.
The shrinking middle
This is an illustration of the damage hyper-polarisation is doing outside politics, to the civic fabric. Already endangered, non-partisan organisations such as think-tanks, research groups and law firms are, like the ACLU, becoming increasingly aligned with the ascendant left. The ACLU’s unique history may also provide a useful way to calibrate how worrying this development is. Decades of overly pessimistic attacks on its values and institutional integrity suggest they are stronger than the doomsayers allow. The defenders of American rights are still mostly moderate and effective. The liberal mainstream, by the same token, is probably less vulnerable to illiberal groupthink than is claimed. Yet both are moving in that new and worrying direction, and the endpoint is unclear.■
This article appeared in the United States section of the print edition under the headline “Speak easy”