Policy As A Crutch: ACLU and Past Performance as Predictor

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Martin Luther King is quoted as saying  ” An unjust law is no law at all.”, this is a particularly relevant idea given the events of the past few weeks in Charlottesville, Va. We have seen various groups rest on the idea of free speech to completely opposite ends. There are members of the far right in America who believe the removal of confederate statues is cultural erasure and went to protest the removal of the figures. The ACLU came to the defense of the groups to protest and hold the #Unite The Right rally .What has come up is a conflict between people feeling that the ACLU has helped support hate speech in the name of free speech. The distinction between the two is often very difficult to find.

Let’s take for example two slogans “Black Power” and the other “White Power.” In structure these phrases imply two similar sentiments as they pertain to the subject. Namely, that phrases supports the empowerment of people from their respective racial group. This makes them equally protectable. However since symbols carry more than just an implied meaning, we also have to take into account the historical significance of the words to ascertain what other implications may be applied in the use of the phrase.

Without going into that analysis it is important that we realize that an analysis be conducted. To simply apply the laws without nuance across the board breads room for the laws to be exploited unjustly. The question at hand is whether the protesting of the removal of confederate statues is inherently hateful. The Virginia ruling concluded that it was not.

There are many though that disagree both, with the ruling and the nature of the statues so the question must be asked how the ruling was made. In these instances of complex problems, like the implication and reception of a symbol there is little solid ground. As all symbols and language are partially subjective and partially collective. One person can claim “White Power” is a rallying of people to celebrate their racial identity in the same way that “Black Power” might be perceived as them.

But those that use the term “Black Power” might say that it is a decree that empowers a racial minority to seek a justice they have historically been denied. This means that to invoke the “White Power” phrase in the same way implies that there is a historical denial of justice, which again brings about an additional point of debate.

The question of the statues is similar, we must ask; are confederate whites to be viewed as a marginalized people who are simply hoping to preserve historical artifacts crucial to their sense of identity? Or are they misunderstanding the nature of what it means to be marginalized in America? Or are they simply masking white-supremacy in a more palatable form to pass into the public sphere under the protection of the first amendment? Who is the adequate authority in America to make a cultural judgement like this and what is the basis of their criteria for judgement.

It is in this case that we find ourselves looking to past precedent to inform us about possible futures, which may not always be reliable.  We must not only look at the precedent but the conditions of the current moment to make this determination and given the complexity of the ethnographic information of the date it is worth asking if have made the proper decision.

As we continue to move forward into this debate of which symbols should be tolerated and accepted, each instance should be weighed upon as much information as we have access to. It would not simply be enough to judge these instances on their own merits, nor would it be fair to rely solely on historical evidence, and the degree to which each perspective influences the decision if of great concern.

The law is a ethical framework, but it does not encompass all that is ethical. That labor must be done ourselves.

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