ACLU

Freedom of Speech Is Important, the ACLU's Top Lawyer Explains to So-Called Liberals

David Cole defends the First Amendment's viewpoint neutrality, obliquely rebutting critics who question his group's commitment to it.

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ACLU

David Cole, the American Civil Liberties Union's national legal director, tells New York Times readers they shouldn't "lose faith in the First Amendment." Although Cole's op-ed piece is explicitly directed at "liberals or progressives," it can also be read as an oblique rejoinder to libertarians and conservatives who worry that the ACLU itself has lost faith in the First Amendment.

That concern is not new. Back in 1990, Reason published a cover story in which Charles Oliver argued that the ACLU's commitment to freedom of speech had been compromised by its pursuit of progressive causes. "In recent years," he wrote, "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." Oliver noted that critics, including longtime ACLU members such as Nat Hentoff and Alan Dershowitz, were complaining that "greed and left-wing ideology have corrupted the union," which had "diluted its message, compromised its mission, and, in some instances, abandoned its commitment to the First Amendment."

Reason

Nearly three decades later, the argument about the ACLU's support for freedom of speech continues, which tells us two things: The organization is still divided on the question, and the stalwarts are influential enough that the ACLU is still willing to defend the First Amendment rights of people who offend progressives.

As Robby Soave noted in June, the latest evidence of internal qualms about free speech is a staff memo revealed by Wendy Kaminer, a former member of the ACLU's national board, that says the organization's lawyers, in selecting First Amendment cases, should consider the impact of speech on "other values advanced by the ACLU," such as equality and racial justice. While the memo repeatedly affirms the ACLU's commitment to defending speakers whose views its members find repugnant, the very idea that the organization's goals conflict with each other is an inivitation to prioritize some of those "other values" over freedom of speech. "In deciding how to use our limited resources," the memo says, "no civil liberties or civil rights value should automatically be privileged over any other. There is no presumption that the First Amendment trumps all other amendments, or vice versa."

The assumption that the "rights" defended by the ACLU inevitably conflict with each other is not only troubling but incoherent, since the whole point of rights is to avoid conflict by delineating each person's legally enforceable claims. If one person has a right to spout racist bile, it cannot be true that another person has a right to silence him. Yet the memo implies that freedom of speech conflicts with other rights. "Speech that denigrates [marginalized] groups can inflict serious harms," it says, "and is intended to and often will impede progress toward equality." It is not hard to see why such loose, compromise-inviting talk bothers critics like Kaminer and former ACLU Executive Director Ira Glasser.

Cole's response to Kaminer reaffirmed "our commitment to defending speech with which we disagree," but it also repeated the memo's thesis that First Amendment cases can "pose conflicts between our values." In his New York Times piece, Cole argues that the ACLU still takes a viewpoint-neutral approach to First Amendment cases:

In just the last year or so, my organization…has invoked the First Amendment to defend high school students disciplined for walking out from school to call for gun control, as well as other students penalized for posting pictures of guns on social media; a student newspaper denied funding after publishing a satire of "safe spaces," as well as fans of a hip-hop band labeled gang members; Milo Yiannopoulos and the animal rights group People for the Ethical Treatment of Animals, both of whom were denied permission to advertise on the subway by the Washington Metro Authority; and anti-Trump as well as pro-Trump demonstrators. We've defended flag desecraters, union organizers, and citizens blocked from their representatives' Facebook sites for their criticism.

Cole wants progressives to understand the value of this approach, which defends a principle that is useful to the left as well as the right. "When the Roberts court ruled that the First Amendment prohibited holding the Westboro Baptist Church liable for displaying anti-gay signs outside a military funeral," he writes, "its rationale would equally protect Revolutionary Communist Party demonstrators holding anti-Christian signs outside the Westboro Baptist Church."

Cole rebuts the idea that neutrality is suspect because it favors the rich and powerful. Actually, he says, "the First Amendment favors people without power and influence. In a democracy, the rich and those in the majority don't need constitutional protections; they can generally enact their desires through ordinary political processes. The targets of censorship are typically dissidents, outsiders, the marginalized."

All of this is good to hear from the ACLU's national legal director, although Cole's defense of the First Amendment is purely instrumental. He says progressives should support freedom of speech because it helps advance their goals, not because using force to silence offensive speakers is unjust or immoral.

That omission may just mean Cole knows his audience. "The fact that conservatives benefit from the First Amendment is not something to bemoan," he says. "It is part of the constitutional bargain." Cole does not assume that so-called liberals will understand there is a principle at stake here, or even what a principle means. That would indeed be a dangerous assumption, judging from the grumbling within his own organization about the freedom that white supremacists and other unsavory characters enjoy under the First Amendment. While Cole's defense of free speech is encouraging, the need for it is depressing.

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  1. “The organization’s lawyers, in selecting First Amendment cases, should consider the impact of speech on “other values advanced by the ACLU,” such as equality and racial justice. “

    One flaw with this approach is that selling the right to free speech short does NOT advance the cause of equality or racial justice.

    A tolerant society is one whose individuals’ rights are in no way threatened by the cause of equality and racial justice. The belief that equality and racial justice can only come at the expense of some people’s right to free speech is an objectively racist argument. If you wish to ensure that society will never see equality or racial justice, simply convince the American people that those things can only come at the expense of our right to free speech. That’s what the racists want us to believe.

    In other words, Wendy Kaminer is carrying water for the enemy–and her good intentions don’t count for shit.

    1. Above all, ACLU lawyers should (and do) consider the impact that case-selection can have on the reputation and standing of the ACLU itself. The notion that “the First Amendment favors people without power and influence” is of course a nice legal fiction, but both David Cole and Wendy Kaminer know very well that were it to be translated into reality, it could risk leading the organization into delicate situations. Situations, for example, where ACLU lawyers might be tempted to defend the worst criminal elements of our society, such as Trolls who purvey “satire” damaging to the reputations of people with “power and influence,” including, above all, NYU department chairmen who also serve as distinguished envoys to the Vatican.

      In this regard, let us hope that Mr. Cole will rapidly issue a statement condemning the legal decision that held New York’s aggravated harassment statute unconstitutional, for surely he must agree with us that “annoying” speech should be criminalized whenever it conflicts, precisely, with the interests of those who have “power and influence.” It is, at any rate, to the ACLU’s credit that it would have nothing to do with such a case, for it would have been unseemly for one of our nation’s great civil rights organizations to argue that annoying speech should be tolerated in America. See the documentation of our nation’s leading criminal “parody” case at:

      https://raphaelgolbtrial.wordpress.com/

      1. Hanging a condemnation of the ACLU on that murky case doesn’t seem quite fair to me.

        1. He only posts here to post that link

    2. “A tolerant society is one whose individuals’ rights are in no way threatened by the cause of equality and racial justice.”

      Yes, A truly tolerant society would be one where individuals’ rights are in no way threatened by the causes of equality and justice.

      But that certainly is not the society we live in today. Part of the problem is that, when you seek ‘racial justice’ you are in fact practicing a form of racism. You begin to eliminate racism by not making decisions based upon notions of race. Which are 99.999% ignorant stereotype anyway.

      Anyone who tells you we need to perpetuate divisions in order to make up for past divisions really is not worthy of your consideration.

      1. Sure appreciate your telling me who is worthy of my consideration.

  2. ” Cole does not assume that so-called liberals will understand there is a principle at stake here, or even what a principle means.”

    Ooof. That one landed right on the chin there Jacob

    1. Principals over principles- Donk Creedo

  3. “…says the organization’s lawyers, in selecting First Amendment cases, should consider the impact of speech on ‘other values advanced by the ACLU,’ such as equality and racial justice.”

    Speaking strictly as a tactical question (whatever one may think of their “other values”), are they just plain too over-broad? “Civil rights” covers a lot of territory. Compare with FIRE, whose scope is much more narrow: freedom of expression on campuses, or the EFF, which is mostly about speech and privacy online, or NORML, which is about marijuana. The ACLU mostly agrees with the positions these groups take, but are they more effective at advancing them by being more focused?

    1. “They” being the groups besides the ACLU. Sorry for the unclear phrasing.

      1. I suspect that there are enough trade offs that the relative evaluation is difficult. Having a limited scope allows a group to target its resources more efficiently, but it also limits the pool of supporters, reducing the resources to begin with. I also think there is a prestige bonus to being a civil rights organization with a broad mission that helps generate additional support. On the other hand, once an organization’s mission gets broad enough, it becomes almost impossible to avoid an ideological tilt, reducing the pool of support from one side. FIRE can be nonpartisan by defending both liberal and conservative teachers and students, as they do. But it’s harder for the ACLU when they have to take sides (or choose not to) on issues like abortion, immigration, guns, and school choice.

    2. I wasnt aware the ACLU was in the business of “advancing values” – thought it was about defending Rights. My bad.

  4. P.S. Nothing discredits racists like their own speech. If you want to marginalize racists, don’t shut them up. Put them on camera and hand them a microphone.

    I’ve long suspected that the reason we don’t have large, devoted, well organized, xenophobic political parties in the USA (like they have in the UK, France, and Germany) is because of our First Amendment. Our racists are free to say what they want–and they can’t seem to resist the temptation to make fools of themselves.

    If the French government ever did a bigger favor for Marine Le Pen than to make it illegal to deny the holocaust in public, I don’t know what it is. She’d never have been able to stop her fellow party members from saying stupid shit, denying the holocaust, etc. by herself. It takes the coercive power of government to accomplish that.

    How could it be in the interests of racial equality to stop the xenophobic racists from making fools of themselves in public–with their speech?

    1. “P.S. Nothing discredits racists like their own speech. If you want to marginalize racists, don’t shut them up. Put them on camera and hand them a microphone.”

      Or on the NYT Editorial Board?

      1. She’s gotten a stern talking-to about not expressing her views too openly.

        Instead, in her NYT editorials, she can use “code words” – isn’t that what sophisticated racists do nowadays?

        1. Instead, in her NYT editorials, she can use “code words” – isn’t that what sophisticated racists do nowadays?

          Racist dog whistles are so hard to perceive that only real racists hear them… like progressive intellectuals and journalists.

      2. Her speech is discrediting the editorial board of the New York Times, isn’t it?

        If she weren’t free to say her stupid racist shit, we might never know she was a racist.

      3. Zing.

    2. “P.S. Nothing discredits racists like their own speech. ”

      The problem is there are a LOT of REAL things that can be said about different groups that are not favorable. Proggies like to deny objective reality, and just pretend it all works the way they want to. This requires control, because if people can speak unpleasant truths that hurts their game…

      Pesky things like the fact that biological differences explain 99% of the differences in outcomes between men and women, that blacks are around 13% of the population but commit ~50% of the murders means that MAYBE there is an actual crime problem in the black community that needs to be addressed, and one could go on forever.

      Those things don’t jive with the way they want to portray things, hence they don’t like free speech. And in SOME cases at least it is logically sound tactically for them to want to suppress it.

  5. He knows his audience:

    “Not every First Amendment argument is justified, of course. The A.C.L.U. supported the public sector union in the Janus case, for example…

    “Since Donald Trump’s election in November 2016, Americans have been exercising their First Amendment rights to engage in resistance: demonstrating, calling their representatives, associating with like-minded citizens in defense of core values, shedding light on official abuse through the free press, and expressing themselves on social media.

    “When one party controls all three branches of the federal government, the checks and balances have to come from the people….”

    1. And when the other party controls all three branches of government, the bill of rights is punching down.

  6. In just the last year or so, my organization…has invoked the First Amendment to defend high school students disciplined for walking out from school to call for gun control…

    Speaking of constitutional amendments…

    1. I wonder what First Amendment principle the ACLU was defending.

      Was it discrimination – progun students were allowed to walk out but gun-controlling students were punished? That would be a First Amendment problem.

      Or are they upholding a more general right to demonstrate even during class hours?

  7. “While Cole’s defense of free speech is encouraging, the need for it is depressing.”

    We also have no idea if he represents the ‘majority view’ within the ACLU.

  8. The ACLU is a joke ,

    1. Now I called the ACLU a long time ago
      Don’t you see how late they’re reacting
      They only come and they come when they wanna
      Call IJ or FIRE instead, or you may be a goner
      They don’t care cause they stay paid anyway
      They treat you like an ace that can’t beat a trey
      An SJW group with SJW people

      It all adds up to a fucked up situation
      They can forget about getting my donation

  9. He says progressives should support freedom of speech because it helps advance their goals, not because using force to silence offensive speakers is unjust or immoral.

    They’ll win of course. Most people aren’t interested in ideas, only the promise of safety. The public intellectuals are bankrupt, not merely misinformed but actively working to increase the size and reach of the state. And society is led by its intellectuals. And it’s higher education that produces the intellectual class. And that’s dominated by the fetid corruption of the humanities. So we’re fucked.

    Regards the ACLU, meh, perhaps it’s time for a replacement just as the GOA came into being despite the apparent dominance of the NRA.

    1. Clearly an ACLU replacement for speech needs to come around. They simply can’t be trusted to really stick to their guns when push comes to shove anymore. The GOA is waaay better than the NRA at being hardcore, and speech certainly deserves just as rabid a supporter!

  10. First.. It isn’t just liberals who are interested in limits on free speech.. So-called conservatives are also happily trying to block it was well.. Just look at the proliferation of laws that address ONLY the left, while ignoring the right.. Such as the Anti-Fa ordinances…. And let’s not forget the RWers who want to ban Muslims and Jews etc.. etc.. There are extremes on both sides. To ignore the Right is to expose this article as a sham.

    At any rate, nobody is arguing against free speech, they are arguing about what traverses the line and is no longer speech, but is an attack… To simplify for the simple-minded, you can’t yell fire in a crowded theater.. nor can you encourage anyone to commit bodily harm.. (Didn’t we learn that with the Manson Clan?)

    The argument is not freedom of speech, it’s ‘where do you draw the line?’ .. See.. Not really that hard to grasp.

    1. “It isn’t just liberals who are interested in limits on free speech”

      Obviously not, but the NY Times Article, which this article was written about, is directed to Progressives. Progressives are the ones currently pushing the ACLU to no longer defend the First Amendment rights of those who offend them.

      “To ignore the Right is to expose this article as a sham.”

      No one is ignoring the Right, but you do yourself a disservice by assuming its just the “extremes” who are trying to add more restrictions to Free Speech. And once again this Article is about the ACLU’s National Legal Director’s Op-ed in the New York Times. If you want to find an article criticizing conservatives use the Reason search bar. They won’t be too hard to find.

      Furthermore you’re being disingenuous here. Lines have already been drawn in regard to death threats, speech that incites riots or a panic, and violence. Progressives are going beyond that by seeking to de-platform people from speaking at Universities, to trying to ban “hate speech” and trying to influence the American Civil Liberties Union to stop defending the First Amendment rights of offensive speakers. This is a problem which progressive supporters of the First Amendment need to recognize just as conservatives need to recognize the authoritarian threats from their side of the aisle.

    2. WTF???
      What “Anti-Fa ordinances”?
      What “RWers who want to ban Muslims and Jews etc.. etc.”?
      Can you cite any of this shit you are spewing?
      “nobody is arguing against free speech,” Progtards are, everyday.

      1. Homeboy is obviously a little drunk, or something.

        I would assume he means laws that target ANTIFA specifically, which I’m sure is BS. He may mean laws that ban people from wearing masks during demonstrations, which is NOT specifically targeting them, even if they are the cowards who have been hiding behind masks recently.

        Likewise I’m sure the Muslim bit is about blocking ALL PEOPLE from a handful of sketchy countries, that happen to be majority Muslim, but not most of the Muslim world.

      2. The anti-Klan laws, I assume he means, which penalize committing violent assaults while masked, and criminal conspiracies to attack people for the exercise of civil liberties.

        The antifa are about the only organizations around today in violation of those laws.

  11. The ACLU’s top lwayer is Cecil Turtle?

  12. David Cole defends the First Amendment’s viewpoint neutrality, obliquely rebutting critics who question his group’s commitment to it.

    Big surprise: the lawyer for an organization founded by communists in order to defend communists is lying.

    The ACLU’s “unwavering commitment to free speech” is often illustrated with their defense of neo-Nazis, which is kind of ironic given that communism and fascism are ideologically nearly indistinguishable collectivist ideologies. And even if they weren’t, taking on the occasional “other” case is good camouflage for the ACLU’s objectives.

    I used to be fooled by the ACLU’s rhetoric and self-portrayal and even was (I’m shamed to admit) a member. Not anymore. Anybody who cares about civil liberties should avoid the ACLU like the plague.

  13. The important free speech issue right now is Antifa, which has repeatedly succeeded in forcibly stopping speeches by conservative commentators, either by physically preventing them and their audiences from reaching the meeting hall or similar facility that the speaker paid to use, or by invading those places and shouting down the speaker, usually with bullhorns.

    It is morally and legally imperative that this tactic be prevented from succeeding ever again. However, police departments such as those in Berkeley and Portland have been deliberately helping it succeed, either by standing down when fight time comes, or by frisking conservatives on their way to the event so that they can’t have the means to enforce their own rights when the showdown comes.

    I want to join or start a petition demanding that AG Sessions enforce our rights by arresting the mayors and police chiefs who violate our rights when they allow this to happen. (If there is no law on the books prohibiting their actions, then Congress needs to create one. I suggest making it an addition to the Voting Rights Act.)

    Should this not happen, we will need to take up arms and stop it ourselves, by any means necessary.

    1. Yeah, the cops standing down etc has been total BS in many situations. I live in the commie hell hole of Seattle, but the ONE good thing I can say about this city is the police here know how to handle protests/riots. They have done their job and kept these situations as neat and orderly as possible.

      As far as things go, I do believe the AG is actually looking into some of the stuff surrounding Charlottesville because of the intentional negligence/bad intent on the part of the local authorities. There’s really nothing to be done nationally but try to hold their feet to the fire every time they pull that shit, but it will always have to be a case by case basis.

  14. Yeah, but you can’t be a marginalized dissident outsider if I don’t like you. You’re just criminal scum who deserves the be wiped out in the most brutal and efficient manner possible.

  15. I support the ACLU, and if they don’t want to defend holocaust deniers and people promoting racial political inequality, that’s fine with me. Limited resources can better be used elsewhere. Those people can find someone else to defend them.

    1. If ACLU will only defend speech from a certain political point of view, it should admit that it is an organization dedicated to the promotion of that point of view, and not a general-purpose defender of freedom of speech.

      1. Yup. Plenty of organizations openly admit goals I find horrible, but at least they’re honest. If the ACLU is going to go full on prog-derp, just admit it.

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  19. I gave up on the ACLU a long time ago when I realized that they were completely ignoring the liberty rights of parents and children.

    Justina Pelletier was imprisoned by the State for over a year, committing no crime other than that she and her parents wanted to see a different doctor. Not a peep out of the ACLU .

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