Liberty Makes Us Unfree, Says the ACLU

The government wouldn't abuse us if we'd stop making it upset, according to the one-time civil liberties advocacy group.


Romy Arroyo Fernandez/NurPhoto/S/Newscom

What purpose is served by the American Civil Liberties Union? I know that the words "civil liberties" appear right there in the name, but it's increasingly difficult to take that seriously as the organization's mission. Just a month after leaked internal ACLU case-selection guidelines revealed the organization to be stepping back from viewpoint-neutral advocacy of free speech rights, the ACLU claims that vigorous advocacy for self-defense rights is to blame for government expansion of the security state.

"Mass shootings create a pervasive sense of insecurity and anxiety that politicians and policymakers will inevitably seek to address," senior policy analyst Jay Stanley insists on the ACLU's Speech, Privacy, and Technology Project blog. As a result, he argues, "those who support expansive gun rights as a protection against excessive government power should strongly consider how much government intrusion and expanded power they're willing to trade for those rights."

This is the old "why do you make him hit you?" argument applied to civil liberties. It excuses the actions of the abuser—the state in this case—as reactions to the missteps of the abused. But it's actually a step further removed, because most gun owners fly entirely below the state's radar. They're among the general population getting slapped by policies that politicians justify as responses to the crimes of a tiny minority.

This is also a blame-the-innocent argument that can be applied to so many civil liberties.

The FBI wants back doors into cell phones because terrorists and criminals occasionally use encryption? You wouldn't have to worry about overreaching law enforcement if you'd just drop your stubborn advocacy for privacy.

Authoritarian politicians want to clamp down on the Internet because a few basement dwellers get radicalized in online chat rooms? We could calm the calls for censorship if you'd abandon your defense of free-wheeling speech rights.

Anybody with a limited taste for defending freedom—or an actual hostility to the same—can construct a similar "stop making them hit you" argument against the exercise of any sort of liberty that makes government officials nervous. Which means that there's no end to it, because the whole idea of people going through their lives unguided and unmonitored ultimately keeps government officials awake at night. That's why they'll grab for any excuse at hand to expand their power and control.

Officials in the U.K. have already implemented probably every restriction on firearms that Stanley could imagine. The country has no "expansive gun rights," nor much in the way of advocates for them (not that London's rising violent crime rate cares). So there's no push for "government intrusion and expanded power," right?

Wrong. The British government has adopted what Edward Snowden calls "the most extreme surveillance in the history of western democracy. It goes further than many autocracies." The UK also requires Internet companies to take down "extremist" content and threatens legal penalties if they're not quick enough to do so.

Which liberties should our friends across the Atlantic stop advocating so that the government will stop hitting them, Mr. Stanley?

That the ACLU has become a bit weak-kneed when it comes to civil-liberties advocacy is all-too-apparent. Last year, after an alt-right rally in Charlottesville, Virginia, degenerated into a lethal riot, staff members pushed back against the organization's representation of one of the rally's organizers.

"Our broader mission—which includes advancing the racial justice guarantees in the Constitution and elsewhere, not just the First Amendment—continues to be undermined by our rigid stance" on free speech, they wrote in an open letter obtained by The New York Times.

That temporizing on free speech appears to be taking root in official policy. Wendy Kaminer, a former ACLU board member who has repeatedly criticized the organization's retreat from bold advocacy for liberty, published excerpts from new case selection guidelines in the Wall Street Journal (the full document is available here).

"Speech that denigrates [marginalized] groups can inflict serious harms and is intended to and often will impede progress toward equality," the guidelines say. As a result, the decision as to whether to take a case will depend, in part, on "the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values."

Not everybody takes alarm at the new ACLU guidelines. Former ACLU president Nadine Strossen said that only the national board may change policy, and "would never let the staff get away with in effect modifying policy through the stratagem of implementation guidelines."

But the guidelines do exist, and other insiders agree with Kaminer that they indicate a troubling shift in focus at the organization.

"In other words," commented Ira Glasser, former executive director of the ACLU, in response to the leaked guidelines, "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."

The new guidelines also note, "the ACLU generally will not represent protesters who seek to march while armed."

Given the racist speech and brandished arms at the rally addressed by the ACLU-represented Klansman in the landmark 1969 Brandenburg v. Ohio case, "the ACLU would be hard pressed to take Brandenburg's case today, given its new guidelines," commented Kaminer.

Brandenburg was a tough case with an unpleasant client that established free speech protections for everybody. If the ACLU is pulling back and prioritizing defenses of speech that are not "contrary to our values," it will likewise be pulling back on the free speech protections extended to the entire population.

Which may well be the point. It's hard to see much enthusiasm for freedom in the staff of a "civil liberties" organization that prefers to protect only speech with which its leaders agree, and which argues that advocating for and exercising liberty "inevitably" provokes the government to slap us with intrusive policies.

They want us to stop making the government hit us.

Instead, we should create new mechanisms for championing our liberties. Since they're apparently done with it, maybe the American Civil Liberties Union leadership would even surrender the group's name for the cause.