ACLU, Once a Defender of Free Speech, Goes After a Whistleblower

The former civil liberties group continues morphing into a progressive organization.

Among the unfortunate changes of recent years has been the transformation of the American Civil Liberties Union from an advocate for free speech and other individual rights into just another progressive political organization. Historically, despite much pushback, the group defended the right of people from across the political spectrum to advocate and protest. But the organization has become unreliable on the issue; most recently in the very 21st century debate over gender identity, which sees the ACLU of Missouri targeting a whistleblower who is critical of medical transitions for minors.

Targeting an Activist's Communications

"Strange evening," journalist Jesse Singal wrote March 7 on X (formerly Twitter). "The ACLU of Missouri subpoenaed Jamie Reed, demanding (among other stuff) all her communications w/me. I emailed them saying (politely) wtf, you're the ACLU. Got a call from a lawyer there saying it was a mistake – 'It's a big team.' Okay."

The subpoena Singal attached (supposedly since modified, though a redacted version of the original remains publicly available through the Missouri courts website) demanded of Reed "all communications, including any documents exchanged, between you and Jessie Singal concerning Gender-Affirming Care provided at or through the Center." It also sought "all communications, including any documents exchanged, concerning Gender-Affirming Care involving media or between you and any media outlet or any member of the media" (journalist Benjamin Ryan says that would include him). The subpoena also demanded Reed's communications with state officials, legislators, and advocacy organizations.

Jamie Reed, it should be noted, isn't a party to the case behind the subpoena, which is a challenge to Missouri's 2023 ban on "gender transition surgery" and "cross-sex hormones or puberty-blocking drugs" for minors. But she was a motivator for that legislation as a former staffer at the Washington University Transgender Center at St. Louis Children's Hospital who developed significant doubts about what she believed to be a lack of safeguards in place regarding permanent changes to children's bodies and lives. In a widely read piece for The Free Press, she described such interventions as "medically appalling."

Whether you agree with Reed or not, she's a sincere advocate for a position on an issue that commands attention and has serious policy implications. Just this month, New York magazine published a piece arguing that minors have an absolute right to change their bodies, while Britain's National Health Service stopped prescribing puberty blockers for children in gender identity cases because of doubts about their safety or effectiveness. Reed is engaged in public debate of the sort that civil libertarians defend, so it's bizarre to see the ACLU of Missouri putting the screws to her over her advocacy. Or it would be if the ACLU wasn't undergoing a painful and very public transformation.

Liberty Runs Up Against Ideology

"An organization that has defended the First Amendment rights of Nazis and the Ku Klux Klan is split by an internal debate over whether supporting progressive causes is more important," Michael Powell noted for The New York Times in 2021. The ACLU's "national and state staff members debate, often hotly, whether defense of speech conflicts with advocacy for a growing number of progressive causes, including voting rights, reparations, transgender rights and defunding the police."

This came after leaked internal ACLU case-selection guidelines revealed the organization to be stepping back from viewpoint-neutral advocacy of free speech rights.

"Our defense of speech may have a greater or lesser harmful impact on the equality and justice work to which we are also committed," ACLU staffers dithered in a 2018 memo. "As an organization equally committed to free speech and equality, we should make every effort to consider the consequences of our actions."

In the legal battle over medically assisted gender transitions for minors, the ACLU of Missouri, which did not respond to a request for comment, appears to have decided that the progressive position on transgender identity takes precedence over the free speech rights of a whistleblower and advocate. This is a remarkable change of position for an organization that, at the national level, still warns that "the government has aggressively investigated and prosecuted national security whistleblowers and…private sector employees continue to face arbitrary discipline and privacy intrusions."

It's difficult to square that position with a demand of a whistleblower that she reveal with whom she's been in communication about her former work. But the subpoena makes sense for a partisan organization that's less concerned about liberty than with scoring points for a larger political agenda.

Filling the ACLU's Abandoned Shoes

"There are a lot of progressive political groups out there. I'm glad to have more of them, because that's my politics too," former ACLU Executive Director Ira Glasser, concerned about the changing direction of his old organization, told Reason in 2020. "But there's only one ACLU…. It's taken 100 years for the ACLU to develop from the 30 or 40 people that started it in 1920 to the powerhouse of civil liberties that it is today. If the ACLU isn't there for speech, who will be?"

Who will be, indeed? As a partial answer to that question, it's worth pointing out that Glasser is now on the advisory council for The Foundation for Individual Rights and Expression, along with Wendy Kaminer, a former ACLU board member. Former ACLU president Nadine Strossen is now a FIRE senior fellow. Other ACLU alumni include co-founder Harvey Silverglate, who is now on the board of directors, and FIRE Vice President of Communications Matthew Harwood.

"Many of FIRE's founders and backers are former leaders of the ACLU who have grown disillusioned with the group," Politico's Josh Gerstein wrote in 2022.

FIRE's expanded scope, from supporting civil liberties on college campuses to broader advocacy for free speech, is still new. But it's a major step towards adopting the ACLU's old role as the older organization transforms into a very different kind of group with more explicitly ideological priorities.

That's not to say the ACLU no longer ever advocates for civil liberties or is universally hostile to free expression; you'll still find the group's lawyers intervening in cases such as the federal indictment of journalist Tim Burke. But the group has become unpredictable on matters of individual liberty, and it now depends on the issue as to whether the "civil liberties" organization will favor or oppose freedom.

This case emphasizes a sad transformation for the ACLU. It's especially unpleasant for people on the receiving end when the onetime civil liberties organization slips into authoritarian mode.