It was 1978 when a group of neo-Nazis wanted to march through the Chicago suburb of Skokie, a neighborhood with its share of Holocaust survivors. As bad as that was, they had the right to think stupid and ugly thoughts, and the First Amendment protected their right to express them. The ACLU famously came to their defense, not because there was anything likable about neo-Nazis, but because the vitality of the First Amendment was invariably tested by the nastiest speech.
It was a proud moment for the ACLU. And in 2017, the ACLU still fondly recalls this proud moment, as it hasn’t done much for free speech since.
This once-favored right has fallen into disrepute with the rise of social justice, and the ACLU has taken guidance from the same fortune-cookie philosophies that apologize for authoritarianism. It’s not that they’re against free speech (except when they are), but that sanitizing the world of disagreeable speech is more important.
So when the current flavor of neo-Nazis (did you think they went away while there’s still tin foil to be had?) was put to the test, who was there to call? Marco. Not because Marco likes Nazis. Not because Marco thinks their conduct swell. But because somebody had to fight for free speech, even for these guys, for the same reason the ACLU did so in 1978.
Marc Randazza told The Associated Press on Friday that his law firm is defending The Daily Stormer’s founder, Andrew Anglin, against a federal lawsuit that real estate agent Tanya Gersh filed against him in April.
“Everybody deserves to have their constitutional rights defended,” Randazza said. “Nobody needs the First Amendment to protect Mr. Rogers. That’s not what it’s there for.”
Gersh is represented by attorneys from the Alabama-based Southern Poverty Law Center, which tracks hate groups.
To say the SPLC tracks hate groups is a bit disingenuous. They “create” the hate groups they track, designating any person or group that fails to use the speech they deem appropriate as a hate group. This isn’t to say they’re wrong in this instance, but that no one made them the thought or word police, and yet they are held up by such august sources as the New York Times as the arbiter of speech and thought purity.
The suit against Anglin stems from his response to real estate agent Tanya Gersh’s call to arms against Richard Spencer. Spencer, you may recall, was the neo-Nazi it was cool to sucker punch.
Gersh’s suit claims anonymous internet trolls bombarded her family with hateful and threatening messages after Anglin unleashed a “campaign of terror” by publishing their personal information, including her 12-year-old son’s Twitter handle and photo.
In a string of posts, Anglin accused Gersh and other Jewish residents of Whitefish, Montana, of engaging in an “extortion racket” against the mother of white nationalist Richard Spencer.
The suit accuses Anglin of invading Gersh’s privacy, intentionally inflicting “emotional distress” and violating a Montana anti-intimidation law.
There are more than a few ironies involved here, given that Gersh went after Spencer’s mother, presumably for raising such an awful son, though there is some dispute about what happened.
Gersh’s lawsuit said she agreed to help Richard Spencer’s mother sell commercial property she owns in Whitefish amid talk of a protest outside the building. Sherry Spencer, however, later accused Gersh of threatening and harassing her into agreeing to sell the property.
But when she became the target of a “troll storm” after Anglin went after her, she found it intolerable.
Anglin’s initial Dec. 16 post about Gersh urged readers to “take action” against her and other Jewish residents of Whitefish, posting their telephone numbers, email addresses and Twitter handles.
“And hey — if you’re in the area, maybe you should stop by and tell her in person what you think of her actions,” he added.
These are the sort of words that some will call a “dog whistle,” saying one thing but meaning something far more nefarious. Did Anglin send a message to the troopers to attack and harass Gersh? The words say nothing more than to express disapproval with her actions, which on its face, would be fully protected speech. Should someone interpret the words to mean something different, that’s on them.
Randazza, who said Anglin never directly sent any messages to Gersh, argued the suit’s allegations “leave room for disagreement” over whether Anglin did anything wrong.
The defense isn’t grounded in support of either Anglin, his Daily Stormer neo-Nazi rag or the actions taken by others against Gersh. It’s only about whether the words written by Anglin should be protected under the First Amendment. If the law easily morphs benign words into calls to do harm, engage in violence or harassment, the impact to free speech could be severe.
There was once a time when a civil-liberties group might leap into the fray, take on the most hated, most unpopular voice possible because that was invariably how speech was defended. As Randazza says, nobody tries to silence Mr. Rogers.
“If it’s unpopular and people want to shut it up, then we have represented them,” Randazza said.
That Marco will take on a guy like Anglin, a group like the neo-Nazis, presents a huge risk. To the terminally insipid, it paints a target on his head. After all, whom better to hate than neo=Nazi, and the inability to distinguish the function of lawyer from the conduct and beliefs of clients has become ingrained. Only a bad lawyer would defend bad people, or so it says on the long, thin scrap of paper inside the fortune cookie.
It’s not just good, but critical, that someone stand up for our constitutional rights when it’s threatened because of the most unpopular, if not hated, people around. Thankfully, Marco has the cojones to do it. Too bad that the ACLU is constrained to rely on its laurels from 1978.