For 70 years, the First Amendment has been the American Civil Liberties Union's chief client. In case after case, ACLU lawyers have argued for absolute free speech, for a press unfettered by government restrictions, and for the strict separation of church and state. Outside the courtroom, ACLU leaders have been among the most eloquent defenders of the libertarian principles embodied in the First Amendment.
Now those principles face their strongest opposition in years. Public and politicians alike appear increasingly intolerant of free speech—whether the lyrics of The 2 Live Crew, the anti-abortion pronouncements of the Catholic church, the art of Robert Mapplethorpe, the advertisements of tobacco companies, or the posters of antigay college students. There is abroad in the land a sentiment that many, many ideas are too dangerous to be expressed and that these ideas must be shouted down or, where possible, forbidden by law. The ACLU, it would seem, has plenty of work to do—both in the courtroom and out.
So what is the ringing battle cry of ACLU President Norman Dorsen? "We are the American Civil Liberties Union, not the American First Amendment Union."
In recent years, the ACLU has adopted an expansive definition of "civil liberties" that dilutes its absolutist commitment to free speech. The ACLU, critics say, is now more committed to goals such as comparable worth, government aid to the homeless, and nuclear disarmament than to defending the First Amendment.
In 1988, attorney Mark S. Campisano documented the shift from the ACLU's "old agenda," which he describes as "the rights of free speech, free press, free exercise of religion, freedom of assembly and association, and freedom from official acts of racism." In 1948, he reported, this agenda encompassed 94 percent of the ACLU's cases; by 1987, it accounted for only 45 percent.
Critics complain that greed and left-wing ideology have corrupted the union. The ACLU, they fear, has diluted its message, compromised its mission, and, in some instances, abandoned its commitment to the First Amendment.
"America needs a civil liberties union," says Harvard law professor Alan Dershowitz, a 25-year member of the ACLU who once sat on the group's national board of directors. "It no longer has one."
Dershowitz notes that the ACLU didn't get involved in one of the most important pornography cases in years: Osborne v. Ohio, which involved a sweeping Ohio statute aimed at child pornography. This spring, the Supreme Court upheld the law, in the process greatly extending the states' ability to ban pornography. Civil libertarians blasted the decision for enunciating a new theory of censorship—a theory that says that the government can ban possession of child pornography not because the material itself generates crime but because allowing people to own it creates a market for material that grows out of crime.
"And the ACLU wasn't in that case at all," says Dershowitz. "And yet, it's in every abortion case, and it's in every feminist case, and it's in every fetal rights case, and it's in every racial case defending the most extreme forms of quotas and affirmative action."
The ACLU has also taken heat from libertarians for some of the cases that it does take. Perhaps the most famous example began over a decade ago, when teenage immigrant Walter Palovchak decided that he did not want to return to the Soviet Union with his parents. The ACLU went to court on behalf of his family to force Walter to return to Russia.
"It still strikes me as strange," says Palovchak's attorney, Henry Mark Holzer. "The ACLU has a children's rights project. Their attorneys argue that teenage girls are competent to have an abortion without parental consent, but a teenage boy can't choose the United States over a totalitarian state. The only answer that makes sense is that their decisions aren't based on civil liberties but liberal politics. The ACLU likes abortion, and it likes the Soviet Union."
More recently, the ACLU actually sued an editor over the contents of his newsletter. In 1984, the ACLU's Southern California affiliate won a $1.8 million settlement against the Los Angeles Police Department. The ACLU had sued the police department on behalf of 144 left-wing organizations and individuals who complained that they had been the targets of illegal surveillance.
But the litigation didn't stop there. Some of the information in the files had allegedly been funneled to the conservative Western Goals foundation and printed in the foundation's newsletter. Shortly after settling with the police, the ACLU sued Western Goals; John Rees, the editor of the newsletter; and the estate of Western Goals' chairman, Rep. Larry McDonald, (D–Ga.). "It's not the business of law enforcement to furnish information to individuals, even reporters," said Southern California ACLU attorney Mark D. Rosenbaum, according to the Wall Street Journal.
"I can understand why the ACLU was concerned about the police keeping records on people who aren't connected with any crime. I can understand the suit against the LAPD," says Rees's attorney, Manuel Klausner (who is a trustee of the Reason Foundation). "But under what interpretation of the First Amendment could they sue the journalist? The ACLU took the position that Rees and other journalists don't even have the right to receive a newspaper clipping or other article in the public domain from the police. The implications of this position would undermine the ability of journalists to use the police as sources. In my judgment, we were defending the First Amendment against the ACLU." (Western Goals' insurance company eventually forced the organization to settle out of court.)
No issue more clearly demonstrates the new thinking within the ACLU than the group's reaction, or differing reactions, to recent attempts by some universities to ban sexually or racially insensitive speech on their campuses.
Last year, the Michigan affiliate of the ACLU brought the first lawsuit against one of these college codes. A federal district judge overturned the University of Michigan's speech restrictions on First Amendment grounds. The ACLU has now taken more than 20 cases across the country challenging student conduct codes that prohibit offensive speech.
But two of the ACLU's largest affiliates aren't so sure about such challenges. In September 1989, the University of California revised its student conduct code to ban racial or sexual epithets on the university's nine campuses. The Northern and Southern California affiliates—which account for more than one-fifth of the ACLU's total membership—didn't challenge the code.
Instead, they endorsed a policy that recognizes that colleges can prohibit speech that creates "a hostile and intimidating environment which the speaker knows or reasonably should know will seriously and directly impede the educational opportunities of the individual or individuals to whom it is directly addressed."
Campus speech codes divided the Massachusetts affiliate for months. Village Voice writer Nat Hentoff reports that the debate was heated. One proponent of speech codes "accused some of his opponents of giving free rein to white racists," writes Hentoff. "He claimed the real issue is not speech, but white power." Another advocate of speech codes "wondered whether the position of the First Amendment absolutists 'has something to do with who the victims of this kind of speech are.'"
Finally, this summer the board approved 16-14 a policy that called for colleges "to minimize and eliminate attitudes and practices that create a hostile educational environment, but these measures must not include rules which prohibit and punish speech on the basis of its content." It was not exactly a resounding victory for free speech.
Because of the differing policies adopted by affiliates, the national board has appointed a committee to study the issue and decide on how to deal with campus speech codes. "I think the fact that they even appointed this committee forces one to question whether the national board is as committed to the First Amendment as it used to be," says Hentoff.
Advocates of speech codes see the issue as a conflict between equality, embodied in the 14th Amendment's Equal Protection Clause, and liberty, protected by the First Amendment. The ACLU, they say, should defend the entire Constitution, including their interpretation of the 14th Amendment.
"Properly framed, there is generally no conflict between equality and free speech," says ACLU National Legal Director john powell, who spells his name without capital letters. But certain types of speech may create an atmosphere that makes minority students feel unwelcome on campuses and keeps them from exercising their freedom. When that happens, he says, minorities have been denied the equal protection promised by the 14th Amendment. Restricting offensive speech guarantees minorities and women equal protection.
"It's not simply a First Amendment issue; it's an equality issue," says powell. "Sometimes we get confused and say that if something is a verbal utterance, then it's protected, but that's not what the First Amendment is about." Since "verbal utterance" is pretty much the dictionary definition of speech, the ACLU's national legal director is in the curious position of interpreting the First Amendment out of existence.
Others argue that a commitment to expansive free speech has always been the core principle of the ACLU and that there is no legitimate reason to abandon that commitment. "The ACLU's position has been, and should be, that speech should be met by more speech. Students should speak out against racism on campus, meet the arguments of racists with their own arguments," says Hentoff. "But that takes time, effort, and initiative. I guess that it seems much easier to erect these codes."
For the moment, Hentoff's view still holds sway. At the ACLU's 1989 national conference, delegates defeated a resolution recognizing that speech "can be regulated in the interest of protecting the fundamental rights of equal opportunity guaranteed by the Fourteenth Amendment."
But the delegates did approve 130-60 a resolution that the ACLU "should undertake educational activities to counter incidents of racist, sexist, anti-semitic and homophobic behavior (including speech) on school campuses."
"Next we'll be required to give presentations on the evils of pornography when we defend sexually explicit material," says Mark Lambert, former legislative director of the Iowa Civil Liberties Union.
"I think the changes started when the ACLU got involved in the civil rights movement," says Lambert. "That opened the door for all of these other issues that have nothing to do with the First Amendment. Today, when someone says that homelessness or comparable worth is not a civil liberties issue, the common retort is 'Well, 30 years ago some people didn't think civil rights was a civil liberties issue.' Well, maybe it wasn't."
Civil liberties have usually been conceived as freedom from government coercion, including government-enforced segregation. But once Jim Crow laws began to fall, civil rights leaders started to demand government coercion—from antidiscrimination statutes to racial quotas—to ensure racial equality. That quickly created tensions between the ACLU's commitment to civil liberties and its involvement in civil rights. And in nearly every debate, civil liberties lost.
In 1960, for example, the ACLU's national board opposed the inclusion of questions about race, color, or national origin on the nation's census forms. But once Congress passed the 1964 Civil Rights Act, the board changed its mind. Census data, it held, provide the basis for programs "to combat discrimination in education, employment, and housing." At first, the ACLU supported only voluntary answers to questions about race; now it says the census may make such questions mandatory. The group does, however, request that the government store the racial information apart from the personal items.
To further racial integration, the ACLU even supports bans on certain kinds of speech. In response to white flight, many cities have passed "antiblockbusting statutes" aimed at real estate agents who try to get white homeowners to sell out by telling them that the neighborhood is "going black." Ironically, these "civil rights" protections actually harm blacks who would like to enter these neighborhoods.
They also, of course, restrict free speech. But in 1972, the ACLU adopted a policy, still in its manual, supporting "antiblockbusting statutes which prohibit false or deceptive statements concerning changes in the racial, religious, or national origin character of a neighborhood and/or the effect of those changes." Although the ACLU does limit its support to laws against "false or deceptive" statements, "deceptive" is in the eye of the beholder, and an absolutist position on the First Amendment should lead one to oppose any such laws.
In The Politics of the American Civil Liberties Union William Donohue reports that in 1975 the national board considered amending the housing policy to explicitly oppose any attempts to combat discrimination by means that are "offensive to the constitutional guarantee of free speech." This amendment was defeated when someone pointed out that it "would rescind, in effect, the board policy on antiblockbusting ordinances."
Perhaps the most important result of the ACLU's plunge into civil rights was the change in its attitude toward quotas. Throughout the 1940s and 1950s the group opposed racial quotas. In the 1970s the ACLU reversed its stand and came out in favor of quotas. In fact, in 1977, it adopted its own quota system.
Under this policy, the ACLU's national board must be 50 percent female and 20 percent minorities. Thirteen years after adopting the policy, however, the ACLU—which frequently goes to court to force such systems on other employers—hasn't filled its quotas. According to minutes of the ACLU executive committee's March 10, 1990 meeting, this failure is of great concern to committee members and ACLU staff:
"Several [Executive] Committee members pointed out that there are no Asian Americans or Arab Americans on the Board.…We let affiliates send us non-minorities over and over without requiring any serious affirmative action by them, and then we try to make it up with the at-large members. But this is inefficient because at-large members represent only 30 of 83 members and also because it has allowed us to ignore the responsibility of affiliates in this matter."
The committee went on to consider two nominations to fill a vacant slot: a black male, political science professor who had worked hard to gain affiliate status for the San Diego ACLU and an Indian (Asian-American) woman who is executive director of the National Gay and Lesbian Task Force. While members praised the work of both nominees, the minutes indicate that debate soon centered on crude gender and ethnic generalizations:
"Paul Meyer said that in light of her record, the need for women, and the lack of Asian Americans on the Board, [the woman] should be submitted to the Board as the sole recommendation. Gwen Thomas disagreed, saying that because Indians are not a sufficiently numerous minority in the country and have not been commensurate victims of discrimination, we should not be as concerned with their representation on the Board." Committee members proceeded to add a black woman and two white women to the list of possible nominees. They considered and rejected a motion to limit the search to women. Finally, they voted to nominate the original two suggestions and "a white woman who is an important feminist and First Amendment lawyer."
Some believe that racial and gender quotas changed dramatically the nature of the boards and the nature of the ACLU. "Election to the board used to be based on one's dedication to civil liberties. Members were elected because they had demonstrated an effective commitment to free speech and separation of church and state," says Dershowitz. "But affirmative action changed all that. Some people were elected because they were women and because they were minorities. And they were told that they were there to represent women and minorities. Inevitably they formed caucuses for women's rights and minority rights within the ACLU.…What the ACLU needs now is a civil liberties caucus." (ACLU President Norman Dorsen, who has presided over national board meetings for the last 14 years, responds, "I don't think our minority and women members are any less committed to free speech than others on the board.")
While quotas may have speeded up the changes taking place within the ACLU, there is a more basic explanation for what has happened to the organization over the last two decades: self-interest, even greed.
The central goal of business is to increase profit. For the ACLU, the equivalent goal is to get more dues-paying members. One way to do this is outreach programs into new markets. Hence, the ACLU's adoption of quotas may be seen as a way to expand its customer base.
Offering a more diverse selection of products will also attract new customers. If some people don't like Big Macs, McDonald's tries to get them to buy Chicken McNuggets. If some people aren't interested in the First Amendment, the ACLU offers civil rights or comparable worth.
In the last 25 years, the ACLU's membership has skyrocketed from around 70,000 to almost 300,000. But many longtime members worry that recent recruits are mainly interested in the group's liberal politics, rather than civil liberties. "They were advertising for members. Period. They weren't trying to get members who were necessarily committed to civil liberties," says Hentoff.
Former Iowa legislative director Lambert argues that the ACLU's stands on economic issues turn off promarket libertarians and conservatives who would support First Amendment rights. "To recruit new members," he complains, "the ACLU buys the mailing lists of other liberal groups. They have more and more people joining who are just liberals, not civil libertarians. You have to worry that someday there'll be no one there whose top commitment is the First Amendment." A spokeswoman for the national office says that the ACLU rents the lists of "like-minded" groups. When pressed for examples, she cites Greenpeace and Amnesty International.
The danger of this strategy was exposed in Skokie, Illinois. In 1977, the ACLU defended the rights of Nazis to march through this predominately Jewish suburb. Although some civil libertarians regard this as the ACLU's finest moment, many of its members disagreed. Because of Skokie, the ACLU, which had been steadily gaining members during the 1970s, lost over one-fifth of its national members. The resulting financial crisis almost destroyed the group.
The message to the ACLU was clear: Liberals are not necessarily First Amendment absolutists. Some of the ACLU's products repel some of its potential customers and must be repackaged. The result, some hold, is that the group compromises its commitment to the First Amendment.
Lambert sums up the new philosophy of the ACLU: "Let's do whatever will raise the maximum amount of money to support the organization and ignore any loss in philosophical integrity. Some liberals don't like the fact that we defend racist speech. Fine, develop a new policy that says we must balance the First and 14th Amendments."
"The ACLU has become too crassly commercial," concurs Dershowitz. "It's too concerned about its pocketbook. The national board in particular is too worried about whether a stand will help or hurt membership and fund raising. It's increasingly afraid to take stands that are unpopular with its constituents." President Dorsen and other board members deny that financial considerations affect policy decisions.
Still, the First Amendment is not the group's number-one priority anymore. Asked to name the most important issue for the ACLU today, powell—whose office most closely tracks the cases taken by the group—first cites abortion, followed by civil rights. (The New York Times reports that the group litigates 80 percent of the abortion cases in the country.) He lists the First Amendment third. The national board members interviewed for this article emphasized the same issues but didn't imply any order of priority.
Abortion may indeed be a civil liberties issue, but it seems strange to make it the ACLU's top priority. After all, Planned Parenthood, NOW, and the National Abortion Rights Action League ably fight for abortion rights. Only the ACLU speaks for the First Amendment. But defending abortion rights may seem like a much more lucrative venture than defending the speech rights of Nazis. Or of anti-abortion protesters.
The federal Racketeer Influenced and Corrupt Organizations law represents one of the most potent, and potentially abusive, weapons for silencing dissent. In 1970 the ACLU opposed the passage of RICO, and the group recently urged Congress to reform the law because of its chilling effect on free speech.
But three years ago the Pennsylvania affiliate chose not to speak out against the use of RICO against abortion protesters in Philadelphia. Nat Hentoff asked why. "The legislative director, Stefan Presser, told me that the board of directors had decided on silence," he wrote, "'I'm not saying,' Presser said, 'that the debate was not influenced by who the parties were.'"
In principle, the ACLU officially opposes certain private protests. "Defending the right of all to advance their points of view by whatever nonviolent methods they may choose," says the ACLU policy guide, "does not mean that the ACLU should refrain from objecting when the likely consequence of pressure group activities would be…to restrict a free and diverse marketplace of ideas."
This exception leaves some civil libertarians puzzled. "Isn't the purpose of every protest to restrict certain ideas?" asks Hentoff.
In practice, it seems that right-wing protests are the ones that the ACLU finds restrictive. Consider the conflicting signals the ACLU has sent in its handling of a racketeering suit filed in Florida against the American Family Association. The AFA's Florida chapter threatened to boycott bookstores that wouldn't remove Playboy and Penthouse from their stands and to ask prosecutors to consider legal action against such stores. In response, the American Booksellers Association, Playboy, and Waldenbooks filed a civil RICO suit against the AFA, alleging extortion.
Florida Civil Liberties Union Executive Director Robyn Blumner has announced that she will file a friend-of-the-court brief on behalf of the AFA. "We are opposed to the use of RICO to suppress protests," she says. But some reports indicate that the national office doesn't support her stand. Asked if her position has the approval of the national office, Blumner says only, "This is a local matter, and it is not their decision to make." So she has national cooperation? "It isn't their decision."
REASON tried numerous times over a three-month period to interview ACLU Executive Director Ira Glasser. We were always promised that he would try to work us into his schedule. When asked if Glasser or the national office had taken a stand on the AFA case, a spokeswoman promised to look into the matter and call back. That never happened.
As the ACLU seems to be backing away from its traditional commitments, it has bestowed the title of "civil liberties" on a host of left-wing policy prescriptions. No longer content to defend homeless persons against police harassment, imprisonment under vagrancy laws, or being confined to a mental institution, many in the ACLU demand taxpayer-provided housing as a constitutional right.
Led by the California affiliates, the campaign for a "right to housing" has encountered some opposition within the ACLU. "There's nothing mentioned in the Constitution about a right to housing," says Florida's Blumner. "If we start demanding that government provide housing, what's next? A right to health care? A job?"
Well, yes, say some activists. People have a right, not merely to housing, but to some subsistence level of income. And if they can't achieve that income on their own, taxpayers must be compelled to provide it.
In a debate at the 1989 national convention, law professor Peter Edelman argued, "People who lack a subsistence income lack effective political liberty.…It is undeniable that people who are deeply worried about how they will pay next month's rent or buy food for the last week or two of the month are unlikely to vote, let alone participate in more active forms of political advocacy about their situation." Of course, this argument confuses political participation with political liberty, but such fine distinctions would inconvenience Edelman's redistributive agenda.
Edelman continued, "So when I talk about subsistence income in a policy sense, I am talking about multiple policies that include employment, wage supplementation, education, health care, housing, and child care as well as cash payments of various kinds."
His opponent, national board member Martin Margulies, countered that there is nothing in the Constitution that guarantees a subsistence income to anyone. He says that advocating Edelman's "multiple policies" would violate the ACLU's own constitution, which prohibits the group from engaging in partisan politics. If the ACLU backs specific economic policies, Margulies worries, then it becomes a group of "social activists rather than principled civil libertarians." Perhaps because of Margulies's arguments, the 1989 convention was the first in almost 20 years that didn't pass a resolution endorsing the concept of "economic rights."
But three months later, the national office endorsed the Housing Now! march on Washington, D.C. Its press release declared that as long as any American gets a rent subsidy or capital-gains tax break, equal protection requires the government to provide "permanent housing, not simply temporary shelter" for the homeless.
The ACLU has also used the banner of civil liberties to intrude in private employer/employee relationships. It has established a National Taskforce on Civil Liberties in the Work Place. Implicit in each item on the task force's agenda is the notion of a "right to a job."
Perhaps the most controversial, and revealing, item on the agenda is the push to abolish employment at will. Currently, an employer can, except under certain specified circumstances, legally fire an employee at any time, just as the worker can quit. Task force Director Lew Maltby says the ACLU wants to abolish the at-will doctrine and replace it with a new rule "that employees have a right to keep their job" unless the employer can demonstrate that their performance was deficient.
Of course, each person has a different idea of what constitutes deficiency. This radical shift in the burden of proof could turn every termination into a procedural nightmare. Maltby wants to apply the deficiency standard very narrowly. He grants that "certain infractions, such as assaulting coworkers" are serious enough to warrant firing on the first offense. But for others, "such as lateness and absenteeism," he argues that "the behavior must continue in the face of warnings before a discharge is just." Why Maltby thinks a person has this sort of right to a job—and not, for example, a right to a girlfriend—is problematic.
Since freedom of contract has been all but written out of the Constitution, civil libertarians who object to the ACLU's workplace policies have suggested that using government power to force employers to retain workers erodes freedom of association. In response, Maltby argues that managers in large organizations should enjoy no such freedom: "Within the context of a small business, where everyone knows each other and works together on an intimate basis, this is a legitimate position. Attorneys and other professionals certainly have the right to choose (and change) their partners freely. This model, however, bears little resemblance to a typical American corporation.…To maintain that management has a free association right to terminate these people is simply not defensible."
The ACLU's workplace policies assume there is no essential difference between government and a corporation, between political power and economic power. Glasser writes in Liberty at Work that some companies have powers that "rival, and in some cases exceed, government power." So the ACLU wants government to assume new powers, to force employers to behave in approved ways.
"Government has a duty to ensure access to public institutions," says john powell. "And business by its nature in our society is a public concern….When a company starts having an impact on people's lives, then we say that civil rights principles should be applied." So, for instance, an employee dismissed by a large corporation is entitled to the same due process protections as a person accused of a crime.
Some in the ACLU would go even further. In the 1984 book Our Endangered Rights: The ACLU Report on Civil Liberties Today, law professor Sylvia Law argues that "property rights are not natural, immutable, or inherent, but only grant such power as the courts and legislatures choose to recognize. Property, whether in the form of land, wages, welfare, or a license to practice law, is what society defines it to be." Of course, the same could be said of equal protection, freedom of speech, and other civil liberties. The Constitution was supposed to enshrine the "natural" definition of these rights, not the most popular or most convenient definition.
ACLU leaders realize that such views are not those of the framers of the Constitution. Indeed, Glasser has noted, with seeming regret, that the Bill of Rights does not apply to the private sector. He brushes off this unpleasant historical fact by saying that the Framers could not have foreseen the enormous power modern corporations have.
But this is really a straw man. Being fired has always been a traumatic, perhaps financially devastating, experience; the Constitution's Framers must have known that. If they had really wanted safeguards against arbitrary dismissals, they could have written them into the Constitution. Contrary to Glasser, this was not an oversight.
The men who drafted the Constitution realized something that the ACLU does not. Government is a unique creature—it holds a monopoly on physical force. It is fear of this coercive power that caused the framers to put explicit limits on it in the Constitution.
In the classical-liberal tradition, liberty meant one thing: freedom from physical coercion. No matter how the ACLU frames it, the relationship between an employer and an employee is a voluntary one. If someone doesn't want to take a drug test, she can quit. (When this was pointed out to Robyn Blumner, she replied. "Well, if you don't want to take a government drug test you can move to Canada." No, Ms. Blumner, I can go to jail.)
Indeed, the Framers believed that a private sphere was necessary to exercise one's freedoms. That is why they wrote protections for property into the Constitution. But because the ACLU does not distinguish between economic power and physical force, it ends up calling for more government involvement—more coercion—to restrict the power, or freedom, of business managers and owners.
And it isn't just economic liberties that this view endangers. Three years ago, the ACLU joined a suit to overturn a federal law that allows religious groups engaged in nonprofit activities to restrict their hiring to members of their own faith. Apparently, religious freedom goes out the window when economic "rights" are at stake.
Law seems to speak for many ACLU members when she writes, "Civil libertarian values cannot be realized by focusing exclusively upon the real threat of abusive government power." But there was a time when focusing on the threat of abusive government was the ACLU's raison d'être.
The ACLU's views on the distinction between the public and private sectors, or the lack of such a distinction, warp its policies on free speech. For example, the group actively tries to force private malls to grant access to speakers and petitioners.
Even Martin Margulies, the opponent of economic rights, opposes the right of malls to reject speakers. He told delegates at last year's national convention, "Freedom of speech is useless unless the speaker has access to an audience—and the audiences today are at the malls, not in the publicly owned urban downtowns and village greens of old." This is, he admits, a break with the traditional liberal view that free speech means only freedom from government restrictions. (Catholic churches are full of potential audiences. Why not force them to accept speakers for abortion rights?)
In fact, the ACLU's position is tantamount to a requirement for listening. The traditional notion of free speech assumes that in the absence of government coercion speakers will create their own platforms and find their own audience. As anyone who has ventured through a government-owned airport can attest, the mall owner is most likely acting as the agent of the customers, who don't want to be bothered by LaRouchies.
The idea that free speech is meaningless without access to an audience informs the ACLU's policy guide positions on mass media. The group supports reinstituting the government-mandated "fairness doctrine" for broadcasters. It demands that cable systems provide open, public-access channels. And it recommends voluntary guidelines to increase access to the print media. These include a policy of accepting virtually all noncommercial advertising and a policy of printing unedited news and opinions from members of the public.
While the policy guide holds that there is no enforceable right to access to the print media, it is easy to see how the ACLU could come up with one. If there is little substantive difference between the private sector and the public sector, there is no reason (except tradition) why government cannot subject print media to a fairness doctrine. If speech is meaningless without an audience, and malls must open their doors to speakers, why shouldn't newspapers have to give writers access to their readers? If, because of their monopoly nature, cable systems have a duty to provide public-access channels, then shouldn't the government force monopoly newspapers to provide similar access? And if all the ACLU cares about is expanding the marketplace of ideas, then a fairness doctrine for the print media could be said to do that.
Indeed, the thought has at least crossed the mind of the ACLU's executive director. Glasser writes in Our Endangered Rights, "If speech is inaudible, what matters that it is free? Effective communication requires access to the mass media, but unpopular views often cannot gain access. Some have therefore suggested that in order to fulfill the purposes of the First Amendment under modem conditions, we should establish a right of access to newspapers and television.…Twentieth-century conditions have created a conflict within the First Amendment that was not possible to contemplate two hundred years ago."
Such waffling inspires doubts about the organization's future as a First Amendment defender. "I'm still a member, and I still make my contribution because the ACLU still does some good," says Dershowitz. "But if things don't change, in 10 years, it may not be doing any good. In fact, it could become an enemy of free speech."
Charles Oliver is assistant editor of REASON.
This article originally appeared in print under the headline "The First Shall Be Last?".