Nicholas Goldberg: We rarely prosecute bigots and racists who spew hate speech. And rightly so — these people should be prosecuted, and they will be.
But when the law fails to stop hate speech, and the courts are not prepared to deal with hate speech (or the lawyers are not prepared to deal with the hate speech), the only way to deal with hate speech is to be very, very careful. The most effective strategy is not to punish bigots and racists but to shame them. After the fact.
In the last days of the George W. Bush presidency, the ACLU sent a letter to Attorney General John Ashcroft and FBI Director Robert Mueller, asking them to investigate charges that the law firm of Jones Day had engaged in a campaign of intimidation of Democratic leaders from the American Civil Liberties Union and other Democratic activists, including members of the media, the American Bar Association, and the American Constitution Society. The ACLU was not entirely pleased with the way Jones Day had treated its client.
They had made efforts to dissuade the ACLU from suing a Jones Day client, the New York Times Company, which published an article by James Risen criticizing the Bush administration’s warrantless surveillance of American citizens. They had filed multiple motions and briefs aimed at discouraging the ACLU from suing the New York Times and other media outlets for publishing antiwar reporting. At Jones Day’s instruction, the ACLU had removed the story about the Justice Department’s surveillance program from the Times website. They had been dismissive, even hostile.
But that wasn’t sufficient. The ACLU wanted more. They wanted to see that Jones Day’s client, the New York Times Company, was punished for violating the First Amendment. They wanted to know that Jones Day’s clients, the American Civil Liberties Union and other liberal groups, would suffer the consequences of suing their enemies for exercising their First Amendment rights. At the request of Jones Day, they sent a letter to Ashcroft asking that the FBI conduct an investigation. Jones Day asked the same of Mueller, who issued a brief letter to the ACLU asking for their cooperation.
A couple of days later, I received the following email from Ashcroft’s office:
I have received the ACLU letter and am reviewing it. While this matter is under my responsibility, you should know that I am not going to be doing anything on this matter without