Last week, I reported that the American Civil Liberties Union appeared to be having an internal discussion about whether it would continue to take controversial free speech cases, prompted by pushback from progressives—some within the ACLU itself—concerned about the organization's defense of the far-right Charlottesville protesters.
Some free speech activists think the memo is yet more evidence that the ACLU is going soft on the First Amendment in an attempt to appease the kind of far-left campus activists who think free speech enables violence and "liberalism is white supremacy." Others insist the ACLU hasn't changed its position at all. In fairness to both perspectives, I've collected some eloquent arguments from both sides below.
An internal memo, obtained by former ACLU board member Wendy Kaminer and published by The Wall Street Journal, encouraged local ACLU affiliates to consider "actors such as the (present and historical) context of the proposed speech; 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."
Kaminer characterized the guidance as reflective of "a demotion of free speech in the ACLU's hierarchy of values."
ACLU National Legal Director David Cole strongly disagreed with Kaminer's description of the memo. In a statement, Cole said that the ACLU's commitment to defending the First Amendment was as robust as ever:
After the tragic events in Charlottesville, we reaffirmed our commitment to defending speech with which we disagree. The ACLU Board—the only entity with the authority to change ACLU policy—discussed Charlottesville, and no one on the staff or the board asked the board to change our policies.
Nonetheless, it seemed clear to us that guidelines would help ACLU affiliates and national staff in considering cases that might pose conflicts between our values. We are a multi-issue organization, and some cases may present conflicts, such as between gay rights and religious freedom, privacy and women's rights, or speech rights and equality. The guidelines, which have been distributed to all ACLU staff members, are explicitly designed to help affiliates and national staff think through various factors in case selection decisions.
Kaminer claims the guidelines change our policy. But the guidelines clearly state that they do not "change ACLU policy, which is set by the Board." They reaffirm our view that free speech rights "extend to all, even to the most repugnant speakers—including white supremacists—and pursuant to ACLU policy, we will continue our longstanding practice of representing such groups in appropriate circumstances to prevent unlawful government censorship of speech." Nothing in the guidelines supports Kaminer's claim that "free speech has become second among equals."
You can read Cole's full statement here.
Kaminer told me via email that the ACLU has "been in quiet retreat from vigorously defending free speech for over a decade, a retreat manifested mostly in cases it didn't take and controversies it didn't enter."
For Kaminer, the memo merely confirmed the existence of this trend. She wrote:
It has taken 10 or 15 years to change the ACLU into a progressive organization with a secondary interest in free speech. It would take at least another 10 or 15 years to change it back, and only then with new national board leadership and a new civil libertarian executive director. It's worth remembering that over a decade ago, on Anthony's Romero's watch, and Nadine Strossen's, the national board entertained a proposal to bar board members from criticizing the ACLU. It was shelved only after it was revealed in the NYT. And Romero then told the Times that the ACLU did not support "speech that attacks minorities."
"Of course he said he'd been misquoted," Kaminer added, "but if you believe that I've got a free speech champion to sell you."
Ira Glasser, a former executive director of the ACLU who worked for the organization from 1978 until 2001, wrote that he shared Kaminer's concerns about the organization's commitment to free speech—and that Cole's statement did little to ameliorate those concerns:
As a stand-alone statement of principle, David Cole's statement reaffirms longstanding traditional ACLU policy. But it doesn't respond to Wendy Kaminer's op-ed at all, not in any way, and especially not to the language she quoted from the new guidelines about balancing the "extent to which speech may assist in advancing goals contrary to our values" against the right to speak when deciding whether to defend the right to speak.
In other words, the ACLU now advises all its affiliates to consider the content of speech, and whether it advances our goals, before deciding whether to defend the right to speak.
That is a balance never before recognized by the ACLU as legitimate in deciding whether to take a free speech case. To deny that this departure from free speech policy is a departure is intellectually dishonest, an Orwellian smokescreen thrown up to obscure what they are doing.
I spoke with Nadine Strossen, who served as president of the ACLU from 1991 until 2008, about the memo. She stressed that while she welcomed this pushback from Glasser, she did not think the ACLU was actually retreating from its commitment to defending controversial speech. The memo does not state that the message of the speaker "would be a criterion for not taking the case, but rather it is a factor that would be taken into consideration in making sure we can handle the case in ways that enable us to continue to push our entire agenda, which is all fundamental freedoms for all people," she said.
In Strossen's view, the memo—which is nonbinding—is merely intended to help local ACLU chapters navigate some treacherous waters.
"I can tell you from the time that I was president and heavily consulting with staff, including Ira [Glasser], that we often took into account in these strategic kinds of decisions the fact that the message of the speech we were defending was particularly offensive, either because it was against civil liberties or profoundly unpopular," Strossen told me. "That was never a consideration for not taking the case, but it was a consideration for making our advocacy as clear as possible: How can we clearly say to everyone that we aren't defending what the Nazis are saying, we're defending their right to say it."
The memo does not discourage affiliates from taking tough cases, according to Strossen, but "if the affiliates interpret it the way Ira does, they can reject it."