Commentary

07.11.18

Equality v. Equity: How the Fourteenth Amendment Can Help the ACLU Defend the First

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The ACLU and the First Amendment: a controversial duo. For the last century, the ACLU has been applauded for its interpretation and application of the First Amendment. One notable case is famous Scopes Trial, where the organization helped challenged and take down a Tennessee law banning the teaching of evolution in public schools. At the same time, the ACLU has been criticized for protecting this same amendment, most recently during the Charlottesville Riots, which involved the ACLU defending the rights of neo-Nazis to hold a protest in Charlottesville, Virginia.

As an aspiring lawyer, I commend the ACLU’s consistent defense of the first amendment on the grounds that if free speech is eroded for one group, it can be eroded for everyone. And yet, as a person of color, I can’t help but see that by supporting the civil liberties of groups whose aim is to further marginalize individuals, the ACLU itself is assisting in limiting marginalized groups’ access to civil liberties. In order to reconcile this dilemma that exists around protecting the First Amendment, I believe the ACLU can benefit from shifting its mindset of protecting free speech from the framework of equality to the framework of equity.

To understand this framework shift, one must first understand how the ACLU’s defense of free speech rests largely on the marketplace of ideas: the idea that the best way to engage one’s political opposition is out in the open. The more speech there is, the more argument there is, and the easier it is for the best ideas to be accepted and the worst ideas to be discarded. To protect accessibility to this metaphorical marketplace, free speech everywhere must be protected. Yet, this idea does not take into account the United States’ history of systemic oppression and how biased laws and policies consistently promote certain ideas as the “best”, even if they are not.

For example, ICE policies essentially prevent undocumented immigrants from even having a voice in this metaphorical marketplace. Police brutality makes people of color fear voicing their opinions, because speaking out could result in arrest, prison-time, or even death. Police killings are the most dramatic and traumatic way to silence someone. Furthermore, policies that hinder accessibility for people with disabilities makes the metaphorical marketplace a hostile environment for them to enter and voice their opinions.

It is up to organizations like the ACLU to interpret the First Amendment in a way that fosters true equality and combats the disposition of power that favors the privileged. In today’s society, a sustainable and equitable approach to the First Amendment requires the realization that it is inextricably tied to the 14th Amendment: the amendment that promises equal protection for every citizen under the law.

Rigidly enforcing the First Amendment for all groups does not promise equal protection for all citizens under the law. It promises disproportionate protection to the groups that are often privileged by the law and that aren’t targeted by biases imbued within the law.

By incorporating the Fourteenth Amendment into its enforcement of the First Amendment, the ACLU can make the needed shift from equality to equity. To adequately understand this shift, I’ve included the picture below:

Equality / Equity

When the right to free speech is protected equally for every group, the group with the least resources is still disadvantaged (as pictured by the smallest child still not being able to see over the fence with just one box). Equity requires administering resources and rights to groups unequally, but in a way that still results in each group being treated fairly. Equity takes systemic oppression into account, and there are many ways for the ACLU to incorporate this framework into protecting the First Amendment.

One possibility for incorporating this framework is for the ACLU to stop protecting the right of free speech to groups with explicit genocidal aims. Another idea is that the ACLU can continue to protect all groups’ access to free speech, but if it is defending the right to free speech for a group that further systemically oppresses a marginalized identity, the ACLU needs to commit extra resources to protect this marginalized group (in relation to the picture, this would translate to giving that group the extra boxes they need to see over the fence). For example, if the ACLU decides to defend the right to free speech of Nazis, then it must devote extra resources to those groups that are targeted by Nazis. It should give extra funding to nonprofits that protects individuals targeted by Nazis. It should help provide extra security at events where people are protesting Nazis.

These are by no means the only way equity can be envisioned, as the possibilities for it are numerous, but there is one thing that is certain:  

The ACLU is admirable in its work to defend the right to free speech. It is an organization that has transformed the bill of rights from an old piece of parchment to a living, breathing document that constituents are aware of. But, if the ACLU truly wants to protect the right to freedom of speech, it can’t rely on the First Amendment as a foolproof law that can be universally applied to all constituents.

Instead, it must recognize the First Amendment as something that can be broadly interpreted and that is fluid in its meaning.

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