No one expected their words to be enlightening or their tone harmonious. Hatred rarely comes in such flavors. It spills out as an ugly, incoherent mess infused with the rotten odor of willful ignorance. And so it was with the Nazi wannabes — self-styled white supremacists determined to make their mark on the world, committed to convincing anyone who might listen that their superiority was both evident and inevitable.

The setting was downtown Charlottesville, Virginia, August 2017. Their mission was unity — of like-minded hate mongers. Their leader, Jason Kessler, was a 33-year-old who lived with his parents and had once supported Barack Obama. He had learned that many demographers thought whites would eventually become a minority race in the United States. That news was so unsettling that Kessler remade himself into a white-rights activist. He styled himself as “a civil and human rights advocate, focused on the Caucasian demographic” in the mode of “Jesus Christ or Mahatma Gandhi.” His “Unite the Right” rally, observed the Christian Science Monitor, “was supposed to be the movement’s coming out party, an emergence from the shadows of internet chat rooms into the national spotlight.”

Kessler was inspired in part by fellow University of Virginia graduate and white supremacist Richard Spencer who, in May 2017, led a band of racists in Charlottesville chanting “Russia is our friend” and “Blood and soil,” a Nazi-inspired slogan. Why they were enamored of Russia is anyone’s guess; I presume it had something to do with President Trump. The reason for the Nazi chant was evident; they thought it allowed them to channel the spirit of General Robert E. Lee, who had abandoned the U.S. Army in a doomed quest to preserve race-based slavery in the South. Charlottesville’s leaders recently had voted to remove Lee’s statue from the downtown park that no longer carried his name. Spencer and his crew opposed that effort and everything they thought it implied, including hostility to the legacy of whiteness.

The Loyal White Knights of the Ku Klux Klan were similarly motivated by the perceived threat to American whiteness. Its members — 50 strong — converged on Charlottesville that July to march around and shout “white power” as hundreds of counter protesters responded with “racists go home.”

How did the mad ravings of a bunch of intellectually confused, racially paranoid misfits end up spurring a national debate over the limits of free speech, the meaning of the First Amendment, and the moral obligation of the president of the United States? One reason is that — despite Kessler’s efforts to cast himself as the Martin Luther King Jr. of white rights — the rally engendered fears of made-for-TV-scale violence.

As news of the event spread, and some sense of its size became clear, several local businesses announced they would temporarily close out of concern for the safety of their customers and employees. The University of Virginia, located in Charlottesville, asked students to stay away.

Many rally participants showed up armed with rifles and other deadly weapons (thanks to Virginia’s open carry laws). Indeed, even before the rally’s scheduled noon start time, Kessler’s congregation had ignited so much hostility and ugliness that local authorities labeled the gathering an “illegal assembly” and ordered participants to leave.

In the end, the racist, anti-Semitic hate-fest caused three deaths. Two of the dead were state troopers. Berke Bates and H. Jay Cullen, assigned to monitor the gathering from the sky, died when their helicopter crashed. The third victim was Heather Heyer, a 32-year-old paralegal.

James Alex Fields Jr., a 20-year-old Adolf Hitler fanatic from Ohio, killed Heyer by intentionally plowing his car into a crowd of counter protesters — injuring some 19 people in addition to Heyer, who died from blunt-force injury to her chest.

Following the tragedy, Donald Trump famously condemned the “hatred, bigotry, and violence on many sides.” His words provoked a controversy that went on for months as Trump proved incapable of criticizing the racist mob without also condemning those who opposed it. Heyer’s mother, Susan Bro, was so sickened by the president’s words that she refused to take his condolence call.

“I’m sorry. After what he said about my child,” Bro told CNN, and added, incredulously, “I saw an actual clip of him at a press conference equating the [counter] protesters … with the KKK and the white supremacists.”

James Fields’ lawyers sought mitigation by stressing his history of mental illness. A psychologist testified that he had been diagnosed with bipolar disorder at the age of 6 and later with schizoid personality disorder. His lawyers also delved into his childhood traumas, which included coping with the murder of his grandmother by his grandfather, who had subsequently killed himself. “James’s mental illness causes him to lose emotional and behavioral control in stressful situations,” said his attorneys, who claimed he had taken himself off his meds when he was 18, meaning he was medically untethered when he murdered Heyer. After pleading guilty, Fields received two life sentences — one in state court and the other in federal court.

Even with Fields confined to prison, questions raised by Heyer’s murder — and the rally that caused it — reverberated. Trump’s troubling insistence on calling bullying bigots “very fine people” was perhaps inevitable given his need to placate a base that contains more than its share of people like David Duke, the former Ku Klux Klan grand wizard who promoted the rally as an effort to “take our country back” and who, after Heyer’s murder, thanked Trump via tweet for his “honesty & courage.” Duke also tweeted, “This is why WE LOVE TRUMP and WHY the FAKE NEWS MEDIA HATES TRUMP. He brings to light what the lying, Fake News Media Won’t. The truth is the media covers up horrific numbers of racist hate crimes against White people!”

But putting the president and his behavior aside for the moment, what about the free speech community — the civil libertarians who successfully fought in court for Kessler’s right to hold his rally in downtown Charlottesville? The city had wanted to move Kessler’s parade of bigotry to another park, one farther from the heart of town that officials claimed would be easier to police. But Kessler had said no; and the American Civil Liberties Union, along with a local outfit called the Rutherford Institute, had sued the city on Kessler’s behalf.

Following the event, the ACLU was heavily criticized — and also lauded — for standing up for the racist rabble-rousers. Glenn Greenwald, best known for reporting on U.S. surveillance programs brought to light by whistleblower Edward Snowden, forcefully defended the ACLU. Civil liberties advocates, he argued, “defend the rights of those with views we hate in order to strengthen our defense of the rights of those who are most marginalized and vulnerable in society.”

Others were not so sure. The Guardian reported on an erosion in “the belief that the KKK and other white supremacist organizations are operating within the bounds of acceptable political discourse — rather than as, say, terrorist organizations — and therefore have a moral right to be heard.”

Jessica Clarke, a law professor at Vanderbilt University Law School, pointed to studies showing that bigots routinely hid behind free speech arguments as a cover for racism. Highly prejudiced people, she noted, “were less likely to voice First Amendment objections when the threatened speech was race-neutral, suggesting their free speech concerns were more about the freedom to express racist prejudice than free speech in general.”

Legal scholar Laura Weinrib noted that the ACLU had never blindly supported free speech but had done so in the fight for a better society; and she wondered whether “a dogged commitment to free speech” was still the best strategy for an organization pursuing social justice: “The balances have shifted dramatically since the 1930s. In recent years, nearly half of First Amendment victories have gone to corporations and trade groups challenging government regulation. Free speech has served to secure the political influence of wealthy donors. Labor’s strength has plummeted, and the Supreme Court is poised to recognize a First Amendment right of public sector employees to refuse to contribute to union expenses. Long-settled principles of American democracy are newly vulnerable, and hate has found fertile terrain.”

Even Susan Herman, president of the ACLU, questioned whether old assumptions about free speech still applied: “We need to consider whether some of our timeworn maxims — the antidote to bad speech is more speech, the marketplace of ideas will result in the best arguments winning out — still ring true in an era when white supremacists have a friend in the White House.”

Leslie Mehta, the young black attorney who was legal director of the ACLU of Virginia when it took the Kessler case, seemed confident, when I interviewed her in the aftermath of Heyer’s death, that she had made the right decision.

“There were certainly lots of conversations between myself and the executive director. There were a lot of revisions back and forth with briefs and having discussions about potential implications, but nobody has a crystal ball and no one [knew] exactly what [would] ultimately happen. I do think that the First Amendment has to mean something. And at the time, it was my understanding … that there was no evidence that there would be violence.”

Mehta, a native of Woodland, North Carolina, is intimately familiar with the South and with the United States’ legacy of brutal racial oppression. She went to historically black Howard University School of Law because of its reputation for creating lawyers devoted to “social activism and social justice.” But she also is adamantly committed to the idea of free speech.
“I think one of the reasons why free speech is so important to me is because … it exposes what you disagree with. And for me, I think it’s important to hear things like our president saying … ‘Well, there are good people on both sides.’”

Mehta also thought it was important to consult with her mother and her 92-year-old grandmother as she proceeded with the Kessler case. Her grandmother, she confided, “never said that she fully agreed or disagreed [with Mehta taking the case], but she did not think that I was wrong.”

As anyone trying to understand the Charlottesville fiasco quickly discovers, the issue of speech — particularly in a society polluted by racism and largely defined by economic inequality — is endlessly complex. So let me begin this journey with a brief exploration of how the U.S. came to embrace such a broad notion of free speech, and let’s look at some decisions made in its name.

•••

We tend to think our current conception of free speech has been around essentially since the beginning of the republic. In truth, our firm and collective embrace of the First Amendment is a relatively recent phenomenon.

The Constitution was drafted at a time when the Founders had rejected foreign tyranny. They were wary of the potential power of a centralized state. So the Bill of Rights was a balancing act, weighing not only the rights of individuals versus government in general but also the rights of states versus the federal government.

Indeed, at the time the Bill of Rights was ratified, the First Amendment did not apply to the states. As legal scholar David Yassky has pointed out, the Constitution’s guarantee of free speech was “quite weak — at least to contemporary eyes. A citizen in 1800 had no absolute right to free speech; if the speech-restricting law was a state law, the Constitution was silent.”

Eventually that changed, and that had a lot to do with the Civil War, the end of slavery, the 14th Amendment, and assorted court decisions. But even after the Reconstruction era, free speech, as we understand it today, was nothing but an aspiration, which is one reason that Southern states could effectively outlaw agitation for abolition.

Free speech is very much an invention of the 20th century. And that concept of speech is very idealistic, inextricably linked to the notion that in the competition of ideas, good ideas generally crowd out bad.

That argument received its most famous articulation in a 1927 case: Whitney v. California. At its center was Charlotte Anita Whitney, a wealthy California blueblood convicted of joining the Communist Party. She argued that her prosecution violated the Constitution. The Supreme Court unanimously disagreed. But even in disagreeing with her position, Louis Brandeis (joined by Oliver Wendell Holmes Jr.) produced a brilliant and eloquent exegesis on the potential of free speech to enact social change:

“Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine.”

As Brandeis saw it, free speech was virtually a sacred right and an awesomely powerful force that would expose “falsehood and fallacies” and “avert … evil by the processes of education.” Hence, the remedy to bad speech was “more speech, not enforced silence.”

That piece of writing has been deemed one of the most important commentaries ever crafted on the First Amendment. But Brandeis assumed something that has not been borne out by facts, which is that the better argument would generally win. He also assumed that relevant people on all sides of a question were equally capable of being heard and that skeptics were interested in listening.

That fallacy continues to inform the thinking of those who see speech as inherently self-correcting.

Much as many of us admire Louis Brandeis’s mind and spirit, the society he envisioned has never existed. Instead, we have created a society in which lying is both endemic and purposeful. We have brought the worst values of advertising into the political sphere and wedded that to long-established tactics of political propaganda, even as our political class has learned to use social media to spread disinformation that propagates at a breathtaking rate. The very idea that political speech would expose and therefore vanquish “falsehood and fallacies” now seems incredibly naïve.

Free speech always had limits. But because of our new technological reality, because of the unexpected weaponization of speech, we are having to consider those limits in a new light. We live in a world where it is far from clear that the answer to bad speech is more speech; and where a foreign power, thanks to our freedom of expression, may well be responsible for the election of a U.S. president. We live in a time when a frightened white minority within the larger white majority fights to maintain control of our country; and when large corporations and cynical functionaries — eager to exploit fear — have a bigger megaphone (including their own television news networks) than anyone speaking for the powerless and dispossessed.

We live in an era when the U.S. awarded its presidency to a man who lost the election by roughly 3 million votes, and who, with the cooperation of a submissive Senate, has appointed judges determined to thwart the will of the public; has proposed policies, supported largely by lies, designed to further divide an already polarized nation; and caters to an irrational mob whose most fanatical elements want to refight the Civil War.

All of this raises a host of difficult questions: If the Brandeisian view of speech is fatally flawed, what is a better, or at least a more realistic, view? Is it possible to reverse these trends that are destroying our democracy? How do we balance an array of important societal values that compete with the value of free speech? How, in short, do we enable a relatively enlightened majority to rescue our country from an embittered, backward-looking minority? And what happens to speech — which has never been totally free — in the process?

Excerpt adapted from The Short Life and Curious Death of Free Speech in America by Ellis Cose. Published by Amistad. Copyright © 2020 HarperCollins.

Voting by mail is the safest way to cast a ballot for many voters, whether they are immunocompromised, have a disability, or simply want to protect the health of their community. Six voters from across the country shared with us why they want to vote by mail, and why it should be an option for all voters. No excuses. 

“I have voted in every general election since 1972. The right to vote is my tool to manage those conditions that I want for my country, my children and my old age. Failure to vote is simply to alienate myself from what I criticize of the current government and give it all my rights, without any consequence.

However, this year I am afraid of voting in person because I am high-risk to COVID-19 due to my age and asthma.”
 

—Belia Ocasio, 67
Puerto Rico

“As a Black man with a Black child who is immunocompromised, being able to vote by mail would make me feel so much better about our safety and our ability to have our voice heard. 

My daughter had open heart surgery six days after she was born. Since then, by a miraculous gift of God, she’s recovered to the point where she is able to function, but it still leaves her immunocompromised when it comes to her lungs and her heart.

I’m in a unique position to be able to advocate for my daughter, not just for absentee voting but for her wellbeing. The world is a dangerous place right now. Being able to vote by mail would give me a sense of protection while also ensuring I can exercise my right to vote and have a say in the direction this country’s going.”
 

—Cecil Wattree, 34
Kansas City, MO

“The first time I voted was for Eisenhower in 1952. I’ve voted in almost every election ever since. When I was diagnosed with legal blindness a few years ago, I wouldn’t let it stop me. Absentee voting has made voting accessible to me. It allows me to continue my lifelong tradition of voting while safeguarding my health.”
 

—Barbara Ebright, 90
Ohio

“I hate to say it, but if I’m not able to vote absentee, I just may have to regretfully sit this one out. It saddens me to even think about that because we’ve waited so long for the opportunity to vote again. The time is approaching us. And now a lot of us are stuck in a situation where voting is a matter of life or death. 

My doctor told me that if I am exposed to COVID-19, it could be fatal due to my asthma and hereditary angioedema. But whether or not someone has a health condition, we have a deadly virus on the loose. We should all have the right to not only vote, but to be safe in doing that. I urge everyone to find out what absentee voting is and speak out. Let your voice be heard.”
 

—Kamisha Webb, 42
Kansas City, MO

“As an essential worker, I come into contact with my community every day on my mail delivery route. I’ve talked to a good amount of people about [absentee voting]. I think that people will be more likely to vote if they can do it from home with an absentee ballot. 

I live right by my voting place, but lines are out the door before it even opens. I don’t think I should have to call into work to go vote.

Voting is a basic, fundamental part of a democracy and it needs to be viewed more as a celebration and an essential part of every American’s duty.”
 

—Javier Del Villar, 29
Lee’s Summit, MO

“Expanding access to vote by mail has been a major step toward accessibility because it allows people with disabilities to avoid the challenges of getting to the polls, waiting in line, and facing physical barriers at a polling place. 

A dozen states have expanded access to vote by mail for some elections this year. But there’s still more work to be done to make sure the right to vote applies to everyone, including people with disabilities.”
 

—Jim Dickson, 74
Washington, DC

Across the country, access to voting by mail has garnered bipartisan support as many states act to expand access. States should do more by expanding early vote periods, preparing for a surge in absentee ballots, and doing away with unnecessary requirements like getting a witness signature or having to pay for postage. At the same time, voting in person must remain an accessible option for all voters. 

Voting is a fundamental right, and nobody should have to risk their health to exercise it. 

Take action

• Learn how to vote by mail
• Send a message to Congress: Pass the HEROES Act
• Know Your Rights: Voting

I am tired of members of my profession dismissing my clients’ humanity. Sadly, it happens a lot:

“Your clients are probably lying to you, which is unsurprising,” reads an email from a representative of the Texas State government.

“People get better medical care in jail,” claim people who have never been incarcerated a day in their lives as reason to keep people locked up during this pandemic.

“We can’t trust inmates to follow the law, so how could we trust them to quarantine from others if they were released?” asks a judge who swore an oath to protect the fundamental rights of these “inmates.”

It should not be news to anyone that the scales of justice are tipped in favor of the powerful, but it’s never been starker to me than now. I’ve spent the last six months on the frontlines of the legal battle to protect incarcerated people from preventable illness and death as jails and prisons fumbled their response to the COVID-19 crisis. What I’ve seen is a chasm between the courage and humanity of my clients — people discarded in crowded facilities trying against all odds to follow public health guidelines — and the officials who incarcerate them: bureaucrats ever ready to point the finger elsewhere as they deny incarcerated people adequate food, water, PPE, cleaning supplies, testin, the ability to socially distance, and subject COVID-positive patients to pepper spray.

More than 1,000 incarcerated people have died from confirmed cases of COVID-19, and 88 of the top 100 largest outbreaks in the country are in jails and prisons. Even this paints an incomplete picture: Around the country, we’re seeing facilities refuse to provide COVID-19 testing to incarcerated people to keep reported numbers artificially low. In Arizona, officials reportedly went so far as to order incarcerated people to refuse COVID-19 tests or else face a “beat-down.” Other jurisdictions, including in Texas and California, simply ignore COVID-19 case counts in prisons in order to increase their chances of reopening.

And when we sue to hold these legal system actors accountable, it increasingly becomes obvious: They are lying to maintain the status quo, despite the risk it poses to our clients.

The philosophy behind our legal system is that adversaries — usually lawyers — present evidence to a judge or jury, engage in vigorous advocacy, and the truth should win out. Even in ordinary times, this is a myth for most people accused of crimes: Public defenders are given vastly fewer resources than law enforcement and prosecutors, and the overwhelming majority of criminal cases are resolved by plea bargaining instead of trial (often to avoid the additional prison time that comes with exercising trial rights). When people do demand their day in court, decades of “tough on crime” rhetoric have manifested in juries and judges who view arrested people — particularly Black and Brown people — as presumptively guilty instead of innocent.

Unfortunately, in the COVID-19 context, judges continue to favor the demonstrably untrue accounts of jail officials over those of incarcerated people who testify at great personal risk. For example, in Memphis, Tennessee, the chief jailer testified under oath that the jail was following a policy of not returning a COVID-positive person to the general population until they had twice tested negative for COVID-19. He even said that failure to do so would create a high risk of transmission. However, his staff and colleagues had never implemented this testing policy and routinely moved COVID patients back into the general population without testing. 

Government officials routinely employ this strategy of plausible deniability: Supervisors who brush aside evidence of daily practices testify that all is well, while the reality is bleak for incarcerated people, as well as prison and jail staff. The temerity knows virtually no bounds: As incarcerated people suffer severe illness and die, jurisdictions like Miami and Orange County filed legal appeals to save themselves from the grave injury of having to provide detainees with soap.

Yet, the officials who I feel the most betrayed by this year are our federal judges. Federal judges are uniquely entrusted to protect the constitutional rights of all. Their lifetime appointments are meant to ensure their total independence and ability to fairly protect the rights of even those without political or social influence. The federal judiciary — at least in principle — is our government’s best hope to protect the rights of the systemically oppressed.

Many recent legal rulings on important matters of public health have fallen short. Many trial courts have cherry-picked evidence or misapplied the law to rule against incarcerated people. And when trial courts find that our clients’ rights were violated, courts of appeals ignore the record and go out of their way to reverse course — most notably when the Supreme Court recently paused a court order requiring increased protections in the Orange County Jail without offering any explanation, and despite rising COVID infections and dishonesty by jail officials (called out as “bad behavior” by Justice Sotomayor in her dissent).

While profoundly disappointing, these pro-incarceration instincts track the composition of the federal bench. Seven times more federal judges are former governments lawyers (prosecutors and civil attorneys) than lawyers who brought challenges to government action; 80 percent of federal judges are white — despite the vast racial disparities the criminal legal system perpetuates — and 73 percent are men, despite the fact that women have been the fastest growing population in prisons and jails for decades. Judicial nominees from presidents of both parties have overwhelmingly been former prosecutors and corporate attorneys: 85 percent of President Obama’s nominees had one of those backgrounds.

Representation and fair adjudication of cases have always mattered. This year, a lack of judges who understand the true horrors of our incarceration machine meant that incarceration has been a death sentence for far too many people. The United States’ unique obsession with mass incarceration also means that the pandemic is harder to mitigate here than in other countries without these super-spreader sites.

The next President has a moral and institutional obligation to appoint judges who will counterbalance this bias against people who have been accused or convicted of crimes by appointing judges who are civil rights advocates and criminal defense attorneys, not just private corporate attorneys and prosecutors. Given how overwhelmingly lopsided our current judiciary is, the next President should aggressively appoint judges with underrepresented backgrounds to help restore our judiciary’s independence and our national trust in our courts.

I am tired of the disdain members of my own profession exhibit toward my clients. However, some of this comes with the territory of combatting our national obsession with incarceration. What should not be expected, or tolerated, is the absence of a fair and impartial judiciary who will tip the scales of justice back into balance.

Andrea Woods, Staff Attorney, ACLU Criminal Law Reform Project