I read this USS Clueless entry. Den Beste writes:
Skokie is a suburb of Chicago, and in the 1970's it happens to have had a fairly large number of Jews living there, many of whom were either direct survivors of the Holocaust or had lost relatives in the Holocaust. A neo-Nazi group wanted to hold a parade there. They deliberately chose it because of its Jewish population, and the town refused to let them.
The American Civil Liberties Union is particularly interested in First Amendment cases, and faced a difficult choice. Most of its membership was liberal and leftist. However, this seemed to the ACLU to be a classic attempt to censor public speech based on the fact that it represented unpopular opinions (to say the least).
He goes on to tell us that the ACLU did take the case and won it, at the cost of some membership and donations. He considers this the right thing, because ACLU took a principled stand: to defend the right to free speech, as the organisation was intended.
However, the problem with this view, is that it ignores the morality of the situation. We have nazis... fucking NAZIS, who want to HARASS JEWS. That is morally wrong. It's totally reprehensible, and should be criminal. Den Beste's analysis, is that everyone has the right to unpopular speech, and this is important. But why should that be true? Rights are not self-evident or manifest or anything like that. They are approximations of morality. And we must keep our head on our shoulders when applying them. (Especially the libertarians.)
I would say the above is an example of someone taking a rights prior to morality view. A friend of mine recently criticised this, saying that people do not have two distinct structures in their brains/theories that we could call "morality" and "rights" and do not put one before the other. Of course, in what he says, he is right (there are not such structures), but he's missed the point of the rights before morality criticism. It's a high-level explanation of how people evaluate moral questions. Den Beste started his analysis with the well-known right to free speech. And considers this dominant, and that was the end of the story. I begin by asking about the morality of the situation: should Nazis be allowed to parade their hate speech in front of a bunch of Jews? My answer was no. And Den Beste knows this perfectly well -- he knows it's not a very nice thing for the Nazis to do, and in many ways objectionable. He knows the morality of being a Nazi. He must know, too, the morality of intentionally choosing a place with lots of Jews to hold a Nazi rally. But, despite this, he put the right to free speech ahead of morality in his conclusions.