The ACLU, Causality, and Hateful Speech

Does the ACLU have blood on its hands? Without the ACLU’s intervention, white supremacists in Charlottesville may have had to rally at a larger park; perhaps in that different venue, police would have been able to maintain order, and no one would have died.* So argues Noah Berlatsky:

Nazis were permitted to march and speak. The result was not more freedom for all. Instead, the march ended, predictably, in horrific violence. One of the people attending the white supremacist march drove his car into a crowd of peaceful counter-protestors, killing a woman named Heather Heyer and seriously wounding many others. Letting Nazis congregate didn’t allow others to speak; it silenced at least one person forever. Defending fascists’ right to speak their minds resulted in the death of someone else.
K-Sue Park, in the New York Times, is more circumspect, asserting a direct causal link between the ACLU’s lawsuit and the murder of counterprotester Heather Heyer only implicitly:

The American Civil Liberties Union has a long history of defending the First Amendment rights of groups on both the far left and the far right. This commitment led the organization to successfully sue the city of Charlottesville, Va., last week on behalf of a white supremacist rally organizer. The rally ended with a Nazi sympathizer plowing his car into a crowd, killing a counterprotester and injuring many.
Park and Berlatsky raise a number of arguments with which we might disagree; in their face, we might note that institutions that structurally disadvantage minority communities are unlikely to enforce speech restrictions in ways that advantage those communities; that even in the face of unequal voice, speech protections still provide important protections; etc. I’m confident others will make those arguments, none of which are new, and most of which are tedious. Most people have made up their mind. Nonetheless, I want to more narrowly consider the causal claim made above.

How much sense does it make to hold the ACLU accountable for the death of Heather Heyer? In the aftermath of the protests and counterprotests, members of both sides characterized the police response as negligent. “State police and National Guardsmen watched passively for hours as self-proclaimed Nazis engaged in street battles with counter-protesters,”  as Pro Publica reporter A.C. Thompson reported “that the authorities turned the streets of the city over to groups of militiamen armed with assault rifles.” Counterfactuals are always difficult. On the one hand, we can imagine that absent ACLU intervention, the rally would have been moved to the larger park, farther from downtown, and that it would have been more readily secured by the police. On the other hand, there is at least some reason to believe that things could have proceeded where they did in relative safety if the police response had been different. Does the ACLU bear greater culpability than the police? Which cause is more proximate? How confident should we be that the other site would have been safer?

This is neither to claim that the ACLU should not think hard about when it decides to intervene in speech cases, nor that what police forces should do in chaotic and dangerous conditions is obvious. Rather it’s that, absent the immediate agent who bears unconditioned responsibility — the murderer James Alex Fields — attribution of blame is hard, and tracing the causal chain that leads to odious outcomes fraught. When Park and Berlatsky single out the ACLU lawsuit, they are picking out one link in that chain, and ignoring causes both anterior and more proximate. Why that link? Perhaps not because of what happened in Charlottesville, but because they already knew what they thought about our particular free speech regime, and are eager to advance those views. 

*out of charity I’m ignoring that Berlatsky’s argument seems to call for preventing fascist speech outright; in the absence of a mechanism, let’s just consider the ACLU’s decision to file a lawsuit.