Writing in the September 28 New York Review of Books, American Civil Liberties Union national legal director David Cole cites with alarm a 2015 poll indicating that "40 percent of millennials think the government should be able to suppress speech deemed offensive to minority groups." You're more likely to think this way the younger you are, it seems, since only 12% of people aged 70 and over at the time of the survey agreed with that view. Cole attributes this unhealthy attitude to "several arguments, all ultimately resting on a claim that speech rights conflict with equality." Those arguments rest on a zero-sum calculation of discourse, presuming that "the weak are silenced [when] the strong speak, or if some have more to spend on speech than others," as well as an assumption that speech hostile toward minorities "reinforces harms" already done to them. For now, under Cole, the ACLU goes against this tide of opinion. It defended the Charlottesville "Unite the Right" marchers when the city tried to relocate their August rally away from the site of the Robert E. Lee statue they meant to defend. It's yet another case where right-wingers benefited from the intervention of an organization they often affect to despise, but their hypocrisy shouldn't influence judgments of the ACLU's record of defending unpopular and provocative speech. In his article, Cole explains that his organization defends speech rights just about to the absolute limit. They'll defend people who advocate violence, relying on a 1969 Supreme Court decision finding such advocacy unlawful only when "it is intended and likely to produce imminent lawless action." In other words, "the government should be overthrown in a violent revolution" might be OK, but "attack the government now" wouldn't be.
Currently, the ACLU draws the line only when people plan to carry weapons during their demos, since that's something different from speech. Cole justifies this loose approach by noting that "Our history illustrates that unless very narrowly constrained, the power to restrict the advocacy of violence is an invitation to punish political dissent." On a related note, he finds it strange that many self-conscious minorities want governments to have more power to suppress speech when 1. "in a democracy the state acts in the name of the majority, not the minority" and 2. "if we were to authorize government officials to suppress speech they find contrary to American values, it would [at present] be Trump -- and his allies in state and local governments -- who would use that power." In general, while "One can be justifiably skeptical of a debate in which Charles Koch or George Soros has outsized advantages over everyone else, [one can] still prefer it to one in which the Trump -- or indeed Obama -- administration can control what can be said." Unfortunately, I doubt whether those whose views Cole challenges will be swayed by his logic. Their demands for government power to suppress oppressive speech are inseparable from a demand for power for themselves, after all. I think they're just smart enough not to empower anyone like Trump to silence them, though they still need to consider, should they get power in turn, that they may not always have it. As for minority rights and majority rule, it wouldn't surprise me if some radicals actually look forward to something like the concurrent-majority form of government envisioned by John C. Calhoun, the great defender of slaveholders' rights, in which protected groups (slaveholders in Calhoun's case, take your pick today) could check the potential tyranny of the majority through veto powers, local nullification or other expedients. Civil libertarian groups like the ACLU rarely get on well with radicals, and I confidently expect to see Cole attacked in the letters columns of subsequent issues for his apparent blindness to the moral imperatives behind the movement to silence oppressive speech. But just as the right sneers at the ACLU one day and seeks shelter with them the next, the left will do likewise inevitably. The ACLU's work must often seem thankless, but so, probably, does much essential work in a democratic republic.