The Volokh Conspiracy
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[FURTHER UPDATE: For Kaminer's reply, see here.]
I've been traveling with family, so I haven't been able to focus on many interesting stories in the news; one that I've heard about, but couldn't look into closely, involves Wendy Kaminer's (paywalled) Wall Street Journal article titled, "The ACLU Retreats From Free Expression." (Kaminer is a former ACLU board member who has in recent years sharply criticized the ACLU for, among other things, lessening its commitment to protecting free speech) The article discusses this ACLU document called ACLU Case Selection Guidelines: Conflicts Between Competing Values or Priorities; here's an excerpt, as quoted in Robby Soave's post here at Reason:
The speech-case guidelines reflect a demotion of free speech in the ACLU's hierarchy of values. Their vague references to the "serious harm" to "marginalized" people occasioned by speech can easily include the presumed psychological effects of racist or otherwise hateful speech, which is constitutionally protected but contrary to ACLU values. Faced with perceived conflicts between freedom of speech and "progress toward equality," the ACLU is likely to choose equality. If the Supreme Court adopted the ACLU's balancing test, it would greatly expand government power to restrict speech.
In Brandenburg v. Ohio (1969), for example, the ACLU defended the First Amendment rights of a Ku Klux Klan leader prosecuted for addressing a small rally and calling for "revengence" against blacks and Jews. The U.S. Supreme Court reversed Clarence Brandenburg's conviction, narrowly defining incitement to violence as speech both intended and likely to cause imminent illegal action. Brandenburg made an essential distinction between advocacy and action, which progressives who equate hate speech with actual discrimination or violence seek to erase.
The ACLU would be hard pressed to take Brandenburg's case today, given its new guidelines. The organization hasn't yet endorsed a ban on hate speech, or a broader definition of incitement. The guidelines affirm that "speakers have a right to advocate violence." But even if Brandenburg managed to pass the new balancing test for speech cases, some participants at his rally were armed, and, according to the guidelines, "the ACLU generally will not represent protesters who seek to march while armed." …
All this is the ACLU's prerogative. Organizations are entitled to revise their values and missions. But they ought to do so openly. The ACLU leadership had apparently hoped to keep its new guidelines secret, even from ACLU members. They're contained in an internal documentdeceptively marked, in all caps, "confidential attorney client work product." I'm told it was distributed to select ACLU officials and board members, who were instructed not to share it. According to my source, the leadership is now investigating the "leak" of its new case-selection guidelines. President Trump might sympathize.
As I've mentioned, I haven't been able to investigate this closely enough to evaluate the criticism for myself, but David Cole, the ACLU's National Legal Director, passed along this response, which I'm delighted to publish:
The ACLU's Continuing Commitment to Defending the Speech We Hate
By David Cole
The ACLU, the nation's oldest and largest civil liberties organization, has always had its share of critics. Many condemned us for defending Nazis' right to march in Skokie in the 1970s. Some, like former Attorney General Ed Meese, labeled us the "criminals' lobby" for advocating for constitutional rights for those accused of crime. We earned few friends when we represented Anwar al-Awlaki, an American citizen suspected of terrorist ties and killed in a drone strike by the Obama administration. After we represented a white supremacist denied a permit by the city of Charlottesville, we were criticized for defending white supremacists. Such criticism comes with the territory, and does not dissuade us from defending the Bill of Rights, no matter how unpopular our clients may be.
But Wendy Kaminer's criticism, published in the Wall Street Journal, is different from those challenges to our work. Her critique is predicated on a fundamental misrepresentation. She falsely accuses the ACLU of having secretly changed its policy regarding free speech — and of launching an investigation to determine who "leaked" the "secret" document that she claims reveals this asserted change in policy. In fact, the ACLU remains fully committed to defending free speech as the document she cites – our guidelines for case selection—expressly reaffirms. That document does not change our longstanding policies and has never been secret.
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."
Kaminer objects to any acknowledgement that speech can cause harm. But that is simply a recognition of fact, and denying it flies in the face of lived experience and ignores the costs of free speech. All rights come with costs, from privacy to due process to the right against compelled self-incrimination. Acknowledging this hardly means one lacks commitment to the rights. It simply recognizes the stakes. The guidelines do not suggest that the ACLU should not represent a speaker because his speech causes harm. Rather, they "attempt to identify the kinds of questions that ought to be considered, the processes for their consideration, and the measures that can help mitigate the harms to competing interests." We will continue to represent those expressing offensive and harmful views, but we as an organization also insist on our right to condemn a speaker's views even as we defend the right to express them.
And if you don't believe our words, judge us by our acts. We represent Milo Yiannopoulos in a suit against the Washington, DC Metro system for suppressing ads for his book. We are defending a student group in San Diego that was penalized for publishing a satire of "safe spaces" that some students and faculty deem offensive. We disagree sharply with those who engage in terrorism, criminal activity, homophobic or racist speech, or attempts to dissuade women from obtaining abortions. Yet we have defended the constitutional rights of terrorists, criminals, anti-gay and racist bigots, and right-to-life advocates. We don't burn flags, but we defend the rights of those who do. Indeed, we'll even defend Kaminer's right to criticize the ACLU. But we do wish she'd get the facts straight.
Naturally, I'd be delighted to publish any response in turn from Wendy Kaminer; and of course our readers can review the ACLU document for themselves.
UPDATE: Nadine Strossen, a former president of the ACLU, responds (originally posted by Ron Collins at Concurring Opinions, here and here, though with some extra material that she e-mailed me in response to my question):
Only the National Board may change policy, and it was consoling to me that the Board didn't even consider doing so despite the post-Charlotte blowback. In contrast, the Board did several years ago reconsider and revise its campaign finance position (to take a less absolutist free speech position), and back in the early 1990s (when I was on the Board, and in part during my Presidency) it did revisit ACLU's hate speech position in response to the then-new push for campus hate speech codes. (Of course, we reaffirmed our traditional policy — unanimously, which is almost unheard of for that fractious and huge body!) The Board is extremely jealous of its policy prerogatives and would never let the staff get away with in effect modifying policy through the stratagem of implementation guidelines.
I hasten to add that I agree with the Board's judgment that these guidelines do not in fact alter the ACLU's longstanding and proud — although always controversial — policy of defending freedom even for "the thought that we hate," as Justice Holmes put it. Rather, the guidelines set forth and explain the factors that have always been pertinent to the intake process.
The guidelines lay out more than a dozen such factors. The one that has drawn criticism is the potential harmful impact of the speech at issue. But acknowledging this incontrovertible fact is NOT AT ALL to say that such harm would warrant the ACLU not taking the case. To the contrary, the guidelines expressly reaffirm that the ACLU will nonetheless do so. However, that consideration might well influence HOW the ACLU handles the case. Thus, the guidelines address the importance, when taking such cases, of seeking to mitigate the speech's potential harm through the following means: retaining the ACLU's right to speak against the views that it is defending from suppression; engaging in counter protest when appropriate; consulting with its allies to explain why it is taking the case; and devoting any attorneys fees earned to the competing civil liberties interests.
In fact, it has been a longstanding ACLU tradition, while defending freedom for anti-civil liberties views, to encourage its supporters to exercise their free speech rights to engage in "counterspeech," protesting those views. During my tenure as President, the Board and staff repeatedly discussed such strategic considerations concerning speech with various anti-civil liberties and otherwise noxious messages, while nonetheless defending the right to purvey such messages; for the sake of the ACLU's effective advocacy and pursuit of its overall mission, it would have been irresponsible not to do so.
As the policy-setting body (including for substantive free speech policies), the Board would have to vote for any proposed change in policy. The fact that the Board did not even consider — let alone authorize — a change in policy for these cases means that the Board leadership viewed the staff guidelines as being consistent with the longstanding substantive policy. (The Board has always bent over backward to be sure that the staff doesn't even inadvertently intrude into the Board's policy-making power.)
But Ira Glasser, a former executive director of the ACLU, takes a different view (again, originally posted by Ron Collins at Concurring Opinions here):
I have long admired David Cole, and always benefited from consulting him during my long tenure as head of the ACLU. But his response to Wendy Kaminer's concerns about certain aspects of the ACLU guidelines for taking free speech cases begs, indeed, ignores, the specific questions she raises about whether the new guidelines represent a dramatic policy departure. She thinks they do, and, having now read them, so do I.
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.
And that, it seems, is why they tried to hide the new guidelines, even claiming, absurdly, that they were protected by the lawyer-client privilege. To say now, after the guidelines were disclosed by others, that they have nothing to hide rings hollow.
My question is: where is the ACLU Board, which is supposed to be the guardian of its policies. Did the Board vote to approve this policy departure?