White supremacists test ACLU resolve

The American Civil Liberties Union (ACLU) appears to have backed off its defense of hate groups and their rhetoric, saying it is not obliged to represent organizations whose members demonstrate while carrying firearms. The policy shift puts the national organization in line with California chapters that objected to the ACLU’s ongoing representation of white supremacist groups in the wake of the deadly Aug. 12 protest in Charlottesville, Va.

After the protest, California’s three ACLU affiliates issued a joint statement arguing the hate groups that marched in Charlottesville crossed the line between free speech and incitement when they showed up to the demonstration with firearms. But free speech advocates argue the move puts the organization at odds with the U.S. Constitution.

“There are no precedents of which I am aware for rescinding free speech protections for those carrying firearms,” Robert P. George, McCormick Professor of Jurisprudence at Princeton University, told me. “Certainly a person lawfully carrying a firearm cannot be required to give it up in order to exercise his free speech rights. Nor can Second Amendment rights be made conditional upon giving up the right to speak freely.”

But California ACLU leaders argued that upcoming demonstrations by some of the same racist groups in their state called for greater scrutiny of whom they choose to represent.

“The First Amendment does not protect people who incite or engage in violence,” the directors said. “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 First Amendment should never be used as a shield or sword to justify violence.”

Further criticism of the national ACLU came from Virginia ACLU board member Waldo Jaquith, who announced via Twitter his resignation from the board Aug. 12.

“What’s legal and what’s right are sometimes different. I won’t be a fig leaf for Nazis,” he tweeted.

The Virginia chapter defended the “Unite the Right” rally in protest of the removal of the Robert E. Lee statue in Charlottesville even after clashes with counterprotesters erupted.

Two days after extolling the ACLU’s defense of all speech, “including speech we abhor,” national ACLU executive director Anthony Romero told 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.”

Although some demonstrators in Charlottesville carried rifles and had side arms, no shots were reported fired. One counterprotester died when a white supremacist drove his car into a crowd.

George said restrictions to free speech are very limited and include obscenity, slander and libel, and conspiracy to commit crimes.

“The incitement must be to imminent violence, or the restrictions are unconstitutional,” he said. “No more speech than necessary can be prohibited to, say, prevent an imminent riot.”

Oregon tribes sue over land destruction

Three Native Americans representing three tribes in Oregon have asked a federal court to restore, at least in part, land they consider sacred. Citing the federal Religious Freedom Restoration Act (RFRA), the Aug. 8 lawsuit claims the plaintiffs’ ability to worship and observe sacred rituals ended when the highway department paved over the site.

Almost 10 years ago, bulldozers cleared a 5-acre patch of government-owned land adjacent to a U.S. highway in the shadow of Mount Hood. For centuries, Native Americans in the area traversed the route between the mountain and the Willamette Valley. In an 1855 treaty, the tribes ceded 15 million acres to the U.S. government. But regional tribes still consider the land sacred 150 years later. Two hereditary chiefs of the Klickitat and Cascade tribes, Wilbur Slockish and Johnny Jackson, and Carol Logan, a traditional practitioner from the Confederated Tribes of Grande Ronde, had used the site for personal and tribal ceremonies and education. Efforts in 2008 to avert destruction of trees and ancient burial and worship sites failed, as did subsequent negotiations after the construction.

A 2011 lawsuit against the Federal Highway Administration and other federal and state agencies garnered limited success for the tribes.

“The saddest thing about this case is that this destruction never had to happen,” attorneys with the Becket Fund wrote in court filings. “The government had numerous alternatives for widening the highway without harming plaintiffs’ sacred site. But it ignored plaintiffs’ pleas for protection and chose the most destructive alternative. That choice has deprived plaintiffs of almost a decade of religious exercise, and that is just what RFRA prohibits.”

Congress passed RFRA in 1993 in response to another case involving an Oregon Native American who, in 1990, was denied unemployment benefits after being fired for ingesting peyote as part of a religious ceremony. —B.P.

Raising the bar on compelled speech

A North Dakota attorney will ask the U.S. Supreme Court to declare unconstitutional his required membership in the state bar association. The appeal follows an 8th U.S. Circuit Court of Appeals ruling denying Arnold Fleck’s claim that compelled membership violates his rights of free speech and association.

Mandatory memberships to unions and associations as a prerequisite to practicing a trade in certain states contradicts a U.S. Supreme Court decision regarding free speech and free association, said Jim Manley, an attorney with the Goldwater Institute, which represents Fleck. Although the high court has tolerated some compulsory memberships for regulatory and collective bargaining purposes, the political advocacy work of those groups—using dues collected through compelled membership—abuses that privilege and should end, Manley said.

Fleck discovered in 2014 that the North Dakota Bar Association, an organization he had to join to practice law in that state, contributed $50,000 to a political action committee opposing a statewide ballot initiative that Fleck personally and financially supported.

Fleck sued the association. Initial negotiations garnered safeguards requiring the bar association to give advance notice of any expenditures for political speech. But the court denied Fleck’s request that the association be required to allow members to opt in instead of opt out of political spending. It also rejected his argument that forced membership violated his rights of free speech and association.

Manley said Fleck v. Wetch will be appealed to the U.S. Supreme Court, joining Janus v. American Federation of State, County, and Municipal Employees in asking the court to end the requirement of compulsory memberships in order to work. —B.P.