David Cole is the ACLU's national legal director (Photo from The Associated Press, reprinted with permission)
- Lee Rowland, Free Speech Can Be Messy, but We Need It, Speak Freely (ACLU), March 9, 2018
- Trend Continues: ACLU’s 2016 Workplan Omits Mention of Protecting First Amendment Free-Expression Rights — No Longer a Fundraising Concern?, FAN 97 (Feb. 10, 2016)
- See also links following the reply below.
Here is the latest installment in the Wendy Kaminer-ACLU controversy:
ACLU adopts new guidelines for choosing free speech cases
David Cole denies that the ACLU’s new case selection guidelines represent a change in the organization’s commitment to defending the speech it hates. Really? Read the guidelines and draw your own conclusions. After the Wall Street Journal posted them, the ACLU followed suit.
This is what the guidelines propose:
In deciding whether to take a speech case the ACLU should consider: “the impact of the proposed speech and the impact of its suppression”. Factors militating against taking a case include, “the potential effect on marginalized communities; the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values; and the structural and power inequalities in the community in which the speech will occur.”
These are new criteria governing the selection of speech cases, as Ira Glasser has stressed. The ACLU has not previously advised staff to decline representing speakers when the impact of suppressing their speech is outweighed by its content and the harm it poses to social justice.
Cole avoids acknowledging this change by citing a handful of ACLU cases involving speech antithetical to ACLU values. They prove nothing. The guidelines do not provide (and I did not assert) that the ACLU should or would decline all cases involving speech that conflicts with its equality and social justice agenda. But they do provide that the ACLU will not take some of these cases, based on a new balancing test weighing the impact of censorship – and the impact of declining a case on the ACLU’s “credibility”– against the impact on social justice.
Of course the ACLU will continue representing occasional clients whose speech is anathema to ACLU values, and it will continue pointing to these cases when its commitment to free speech is questioned. But the quiet lessening of that commitment over the past decade or so is evident mainly in cases the ACLU hasn’t taken and controversies it hasn’t entered, as I observed in the Wall Street Journal back in 2007.
Perhaps the most striking example of its selective defense of speech was the ACLU’s silence in Harper v. Poway, a student speech case involving the right to wear a t-shirt with a religious, anti-gay message, at a time when the ACLU was vigorously defending students’ rights to wear pro-gay t-shirts. Tyler Chase Harper lost his case before the 9th Circuit, while the ACLU remained on the sidelines. (The Supreme Court vacated this clearly wrongheaded decision.)
The guidelines confirm a 21st trend for the ACLU, and the case selection balancing test they describe refutes Cole’s rhetoric about the organization’s unchanged defense of speech. Similar, general assurances of the ACLU’s commitment to free speech are included in the guidelines. But they’re directly contradicted by a recital of specific factors militating against accepting a speech case. The guidelines assert, “the ACLU is committed to defending speech rights without regard to whether the views expressed are consistent with or opposed to the ACLU’s core values, priorities and goals.” Then, a few pages later, they cite as a reason to decline a speech case “the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values.”
What’s going on? How do we account for contradictions like this and the ACLU’s refusal to acknowledge its obvious willingness to elevate social justice concerns over the defense of speech in some cases? The ACLU is confronting a dilemma created by the hostility to free speech of its relatively new progressive constituency and the free speech values of its old guard. It’s also caught between a need to maintain its brand as the nation’s leading, non-partisan free speech champion while embracing a new partisan political role as a leader of the resistance.
Because the ACLU has long maintained a dual, civil liberties/civil rights agenda it has long confronted conflicts between the drive for equality and defense of speech. But for decades the conflicts were manageable, even invigorating. And while, according to free speech advocates, the organization has sometimes erred on the side of equality, it has not previously advised doing so systematically.
Now that its new case selection guidelines have been exposed, thanks to concerned ACLU insiders, we ought to be having a debate about the merits of this new approach to speech cases. Instead, because the ACLU doesn’t want to acknowledge its retreat from the unmitigated defense of allegedly hateful speech, we’re debating whether the guidelines mean what they say.
The larger debate in the liberal community
[T]he ACLU and progressives who might be persuaded by the ACLU’s logic are making a terrible mistake, and one that cannot be justified if one maintains a commitment to political democracy. This error is part and parcel of a broader process whereby the First Amendment has become more a mechanism for protecting class privilege than for protecting and promoting freedom and democracy. — Robert W. McChesney, “The New Theology of the First Amendment,” Monthly Review, March 1, 1998
We’re also having an insider discussion about what constitutes ACLU policy and the board’s role in enacting it. Nadine Strossen observes that the guidelines don’t formally change policy, confirming that the board didn’t vote on them. But they will function as a de facto policy change (indicating the board’s irrelevance.) The guidelines are “intended to bind the national legal department,” and seem likely to be followed closely by many ACLU affiliates. (According to my source, the national office now strongly influences affiliate policy and staffing.)
If only the ACLU had issued a press release about the guidelines and posted them on its website when they were formulated, inviting and engaging in an honest debate about them. If only the ACLU had acted according to David Cole’s assertion (following the leak of the guidelines) that it has “nothing to hide.” While free speech advocates like me would still have vigorously critiqued the new balancing test and mourned the loss of an unwavering, unapologetically, we would have had no reason to accuse the ACLU of bad faith. And many ACLU supporters would (and probably do) welcome an equivocal defense of hate speech freedoms and a strengthened focus on social justice. That the ACLU is still trying to avoid this debate is another indication of its diminished devotion to its professed free speech ideals.
A hyperlinked history of the controversy: ACLU & the First Amendment
- FAN 50: “ACLU’s 2015 Workplan & the First Amendment — Anthony Romero Responds,” March 4, 2015
- FAN 49: “ACLU ‘2015 Workplan’ sets out narrow range of First Amendment Activities,” Feb. 25, 2015
- Eliza N. Carney, “Constitutional Amendment Debate Roils ACLU,” Roll Call, Sept. 8, 2014
- FAN 30.1: “Six former ACLU leaders contest group’s 1st Amendment position on campaign finance — ACLU’s Legislative Director responds,” Sept. 6, 2014
- Ronald Collins & David Skover, “Before McCutcheon – The ACLU position in the early years,” SCOTUSblog, March 12, 2014
- Steven R. Shapiro, “The ACLU & the McCutcheon case,” SCOTUSblog, March 14, 2014 (includes Ronald Collins & David Skover – Rejoinder to Steven Shapiro)
- Joel Gora, “Free Speech, Fair Elections, and Campaign Finance Laws: Can They Co-Exist?” (2013)
- Susan Herman, “ACLU Backs the First Amendment,” letter to Wall Street Journal, May 6, 2010
- Floyd Abrams, Ira Glasser & Joel Gora, “The ACLU Approves Limits on Speech,” Wall Street Journal, April 30, 2010
- ACLU Board Addresses Campaign Finance Policy, ACLU website, April 19, 2010
- John Leo, “A Limited Love of Liberty,” Wall Street Journal, April 24, 2009
- Wendy Kaminer, “The ACLU Shirks Another Free Speech Fight,” Forbes, April 21, 2009
- Wendy Kaminer, “The American Liberal Liberties Union,” Wall Street Journal, May 23, 2007
- Scott Sherman, “ACLU v. ACLU,” The Nation, January 18, 2007
- “ACLU Denounces Campaign Finance Bill As Unconstitutional Attack on Political Freedom in America,” ACLU website, March 30, 2001
- ACLU on Campaign Finance Reform, ACLU website (2001-2012)
- Joel Gora, “Campaign Finance Reform: Still Searching Today for a Better Way,” Journal of Law & Policy (1998) (“I first encountered campaign finance reform as a young ACLU lawyer twenty-five years ago, in 1972.”)
- E.J. Dionne, Jr, “Politics as Public Auction,” Washington Post, June 19, 1998 (In a statement that will be formally released in the next few days, . . . nine leaders [ACLU luminaries] . . . dispute the ACLU’s view that placing “reasonable limits on campaign spending” violates the First Amendment.”)