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Wendy Kaminer Replies on the ACLU and Free Speech

David Cole and Nadine Strossen had responded to Kaminer's op-ed on this; Kaminer responds in turn.

For an excerpt from Kaminer's original op-ed, as well as David Cole's and Nadine Strossen's disagreement with Kaminer—and Ira Glasser's response largely agreeing with Kaminer—see this post. Here is Kaminer's reply:

I've hesitated to respond at length to David Cole and Nadine Strossen since the case selection guidelines are now public: You can read and interpret them yourselves. Still, I prefer not to let misleading assertions stand, including those about the guidelines' internal import. So here goes.

First, Cole and Strossen assert that the ACLU has not retreated from the unmitigated defense of speech or issued new criteria for case selection, denying that the organization may now decline to represent a speaker whose "speech causes harm." To evaluate this claim, read the guidelines.

They explicitly propose that in selecting speech cases the ACLU weigh "the impact of the proposed speech and the impact of its suppression." Factors militating against taking a case include, "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."

This is indeed a change and these are indeed new criteria, as former ACLU Executive Director Ira Glasser stresses: "While concerns about the harm of speech were occasionally raised by a couple of affiliates, and a few national board members, they were always decisively rejected as factors in deciding whether to take a particular case. Considering the impact of any particular speech on 'marginalized communities' or on our 'values' or work on behalf of equal rights has never before been part of our decision making process about whether to take a case."

Strossen apparently disagrees and sees nothing new here. She concludes that the balancing test for speech cases outlined in the guidelines actually affirms that the ACLU will "nonetheless" take a speech case even if the proposed speech will harm the causes of equality and social justice. But she fails to mention that, pursuant to the guidelines, the ACLU will not take a case if the harm of the speech is deemed to outweigh the impact of suppressing it. Indeed the clear purpose of the new balancing test is ensuring that social justice concerns will sometimes outweigh First Amendment freedoms in selecting cases. That's what's new, and alarming to many free speech advocates.

Cole insists that my critique of these guidelines amounts to a refusal to admit that speech can cause harm. Not so. Of course I believe that language has power, for better and worse. That's partly why I'm a writer. But the presumed harms of speech—political, social, cultural, psychological, or sexual—are always the justifications for censoring it, and, as David Cole knows, civil libertarians define harms that might make speech subject to regulation extremely narrowly. They do not generally include the harm of speech that "denigrates … marginalized groups" or serves the interests of white supremacists. I realize, of course, that the new guidelines do not advocate government censorship of such speech. But they do make clear that, in many cases, the ACLU will decline to defend the rights of people who disseminate it. That's what's new.

In an effort to deny this fact, Cole points to a handful of cases in which the ACLU is defending arguably hateful speech that offends its values. Of course it will continue to accept some similar cases. As the guidelines state, the impact of declining a case on the ACLU's credibility is also a factor in case selection. And not all speech will fail the new balancing test. Sometimes the harm of bigoted or otherwise hateful speech will be considered less significant than the harm of censorship. But, again, other times the alleged harm of hate speech will outweigh the ACLU's commitment to the speaker's rights. We can no longer rely on it to accept cases regardless of the content of the speech at issue and its expected impact on social justice.

Cole's concluding riposte that ACLU will even defend my right to criticize it is no doubt sincere but unintentionally funny: In 2006, when I was on the national board (before his time as legal director but during Strossen's tenure as president) the executive committee seriously entertained a proposal to bar board members from -- criticizing the ACLU. The proposal was aimed at me and shelved only when it was exposed in the New York Times.

Yes, I know that private associations have the right to try muzzling their members, and I imagine the ACLU would delight in defending me if I were prosecuted for annoying it. Still, the aborted attempt to impose a formal internal ban on criticism by directors reflected what is now at least a decade long erosion of the ACLU's commitment to free speech ideals.

In their efforts to minimize or deny this evolution (or devolution depending on your values), Cole and Strossen dwell on the largely irrelevant fact that the new guidelines don't formally change ACLU policy. (I never said they did; I noted that they were presented as an explanation not a change in policy.) But the fact that the guidelines were not subject to a national board vote and formally enacted is a critique not a defense of ACLU leadership, because they represent a de facto change in policy (which might make you wonder about the board's continued relevance). The guidelines state that they're "intended to bind the national legal department", another way of saying that national staff are now bound to weigh factors like the projected harm of speech on "marginal communities" in selecting cases.

And while the guidelines were handed down to affiliates as suggestions, I expect that many affiliates will take them quite seriously, perhaps as de facto directives, (just as colleges and universities took seriously Obama administration "guidelines" on the handling of sexual assault cases). As my own experience and reports from an internal source confirm, the ACLU has become increasingly centralized, and the more money the national office has to distribute to affiliates the more influence and de facto control it has over affiliate policy and even staffing. My source also reports that, in general, affiliate staff are now more ideologically oriented toward protecting and expanding civil rights than preserving civil liberty.

Who are my sources? The fact that I had to promise not to identify them is a testament to the ACLU's success in informally punishing and deterring criticism by insiders, without enduring the embarrassment of formally banning it, as the board's executive committee once proposed. David Cole denies that the leadership is concerned with the leak of the guidelines, which he now suggests are neither confidential nor consequential. But I simply reported what I was told and continue to believe—that the guidelines were considered confidential (they were, after all, labeled attorney-client work product) and that the leadership would like to know how they were exposed. Transparency, like free speech, seems an increasingly contingent value at the 21st century ACLU.

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  • Eidde||

    Let me check their national Web site to see the recent cases where they defended Nazis, Republicans, pro-lifers, and other morally-equivalent people (/sarc) in free-expression cases...

    Here's them defending Milo

    Here's a staffer pushing back against the "hate speech isn't free speech" narrative

  • Eidde||

    "A troll wants you to censor them. It feeds into their power and gives them something to sell. You don't have to play that role."

    Interesting frame.

  • Brett Bellmore||

    I've been called a "troll" at a number of sites, mainly because I like arguing, which means I visit sites where people disagree with me. But I don't think of myself as a troll because it's always sincere. Usually I sincere myself right into being banned, because they don't want to have to cope with alternative view points like, "So, we're having a discussion of Marx. When do the pyramids of skulls get discussed?"

    Marxists really hate acknowledging the pyramids of skulls... They want it to be all cleanly theoretical without any mention of what happens whenever anybody tries to put their ideas into practice...

    I can't really say what motivates actual trolls, assuming there is such a species. But, "A troll wants you to censor them" sounds like the sort of argument you'd use on a would-be censor who you know doesn't actually give a damn about freedom of speech, but who might be open to frustrating somebody whose speech they don't like.

    It also sounds like the sort of argument that isn't likely to work, because left-wing censors don't actually care about the people they're censoring, they just want to stop them from being heard, so as to foreclose any chance of people being persuaded.

  • Krayt||

    A troll doesn't want censorship. A dictator does, who wants to firm up their control.

    All else are useful idiots whistling past the graveyard, firm in their belief that a little censorship, controlled by Right Thinking people, is an acceptable risk.

  • Quixote||

    If it's Eugene Volokh performing the censorship, some Trolls are apparently willing to endure.
    But the key point that needs to be made here is that this response from the ACLU is an excellent rebuttal of efforts to besmirch the organization's reputation. Surely there is nothing wrong with bending the truth a little to achieve that worthy goal. Who would expect the ACLU to get involved in certain delicate matters, simply because of inappropriate "First Amendment" arguments made by dissenting judges and liberal commentators? In this regard, let's hope all civil rights organizations, along with Eugene himself, will continue to pretend to ignore "opinions" from the left such as this:

    https://forward.com/opinion/385050/

  • Careless||

    These are events that happened in the last week? No? Oh, so why did you bring them up?

  • Eidde||

    It's a benchmark...if we see them doing less of this stuff it will be an indication of the memo having an effect.

  • Scarecrow Repair & Chippering||

    There's a pretty simple way to refute the charges that this is a change: withdraw the new guidelines. Denounce them. Repeal them.

    But just like Nixon and Watergate, Reagan and the Iran-Contras, Clinton and his rapes, Trump and his backtracking, the coverup confirms the charge.

  • Caphon||

    Shit, why leave Obama out of that party? Plenty of messes he stonewalled the investigations of.

  • Scarecrow Repair & Chippering||

    I suppose because none of his coverups were mentioned by the mainstream media. Didn't include either Bush either, or Ford or Carter or ...

  • JunkScienceIsJunk||

    But.. Obama!

  • MonitorsMost||

    That was an incredibly well written and persuasive response. I don't know if she's right, but I want Wendy Kaminer defending me in court if my civil rights are at stake.

  • Rev. Arthur L. Kirkland||

    Ms. Kaminer sounds very unhappy. Perhaps she should register as a Republican, volunteer for Trump, work at FIRE, support censorship and bigotry cloaked in superstition, and join those who disdain the ACLU. She might be disaffected enough to fit right in.

  • Scarecrow Repair & Chippering||

    Or she could post here as a disaffected preacher. But she's too logical and well-spoken for that.

  • Eidde||

    She's your kind of gal, rev. She's in the Secular Coalition for America ("Our mission is to increase the visibility of and respect for nontheistic viewpoints in the United States, and to protect and strengthen the secular character of our government as the best guarantee of freedom for all.")...

    ...and she even wrote a book denouncing all forms of superstition, including of course Christianity:

    https://amzn.to/2Mj062f

    ...yet somehow she manages to be secular without being a complete jackass, which some other secularists don't seem able to accomplish.

  • a tandem||

    support censorship and bigotry cloaked in superstition
    You mean become a Democrat?
  • Jimmy the Dane||

    I really don't feel bad that the time for the soy boys, remohomos, and feminists have to pay for their actions. The American Communist Losers Union is done. Glad to see it happen. Overdue.

  • Brett Bellmore||

    "My source also reports that, in general, affiliate staff are now more ideologically oriented toward protecting and expanding civil rights than preserving civil liberty."

    I'm going to need a rundown on the distinction here between "civil rights" and "civil liberties".

    OK, looked it up. So, "civil rights" are actually statutory privileges, while "civil liberties" are the actual RIGHTS the Constitution enumerates. Seems like a rather Orwellian inversion. I suppose they use that because the distinction arose with the Civil "Rights" acts?

  • Stephen Lathrop||

    So I looked at your link. What you get there is from lawyers. Useful if you are contemplating some kind of lawsuit at the nexus where civil rights, civil liberties, and lawyers intersect. But it's not a sufficient picture.

    Nowhere in discussing either category does the article mention a right to self government. The article also assigns to government a role actually performed by the sovereign People. Without the over-arching liberty-related concepts of self-government and sovereignty, the article verges on misinformation, especially in the context of the kind of discussions which occur here. Conflate the Constitution, which is a decree from the sovereign to empower and limit government, with the sovereign People, who actually decree the powers and set the limits, and you are headed for confusions which you will be without tools to untangle.

    People who do that end up thinking the Constitution limits the sovereign. And that rights come from nowhere (or God), and therefore, somehow, acquire immutability, a capacity for self-enforcement, and absolute authority against all conflicts—even conflicts with other rights. In that view, despite actually infringing on each other, all rights magically enjoy absolute power to stay the hand of government in all cases. There is no getting out of that muddle until you put the sovereign back into it, and acknowledge the sovereign as the source of rights, the limiter of government, and the source of government's powers.

  • apedad||

    I have to admit the ACLU is getting a little snow-flakey here.

    They're forgetting that they don't defend a person's speech (i.e. the content), they're supposed to defend a person's RIGHT to speech.

    From KKK marchers to Mapplethorpe (TrueAmericanParrot can tell you all about him!), the ACLU should simply work for civil rights and liberties (thanks BB for the clarification!)--not for the actual content.

    Heck, they should publish a disclaimer at every case that they take no position on the content.

  • Stephen Lathrop||

    What an appealingly simplified view of our actual day-to-day world, where content-based censorship by private parties is the norm, not the exception, and where legally-approved government censorship of content gradates through a wonderfully nuanced (but often contested) panoply of interacting forums, actors, subject matters, and audiences. Lots of folks will like what you say.

  • apedad||

    ". . . where content-based censorship by private parties is the norm, not the exception. . . ."

    We all agree that's not a constitutional issue.

    ". . . legally-approved government censorship of content gradates through a wonderfully nuanced (but often contested) panoply of interacting forums, actors, subject matters, and audiences."

    Sure ok, nobody said it's going to be easy.

    Abortion ads on public busses?
    'Screw Clinton and the horse that rode her' t-shirts in a public school?
    Whatshername in Kentucky that didn't want to certify gay marriage licenses?

    We'd like our Constitution and laws to be 100% brick walls but, as you mentioned, there are nuances everywhere.

    Not sure what that has to do with the ACLU simple affirming they work for people who's rights have been allegedly trodden upon by the govt actors.

  • Bob from Ohio||

    The ACLU has always cherry picked whose rights it will defend. Its nothing new.

    When defending free exercise of religion benefited Jehovah's Witnesses and other fringe groups and the ACLU could stick it to the mainstream, it was a priority. Now, when it is the mass evangelical Protestants under attack, the ACLU is on the other side..

    For every Nazi or Klaner defended, a 100 Communists were.

    Its a left wing organization that follows current left wing dogma and always has been.

  • Bob from Ohio||

    Not to mention of course the near total failure to defend the Second Amendment.

  • NToJ||

    I think they're generally opposed to punching down, which explains the selection. (The new guidelines are contrary to that, though.)

  • Krayt||

    Attention ACLU leadership: Again, it's not about the inherent value of any particular example of speech. It's about denying government, which is to say, power hungry people in power, one of their primary tools used remain in power: censorship.

    Erodan, Putin, hecn just today China banned HBO because John Oliver criticized their president.

    So stop it, ACLU. If any donors are pressuring you to back off free speech cases, tell them to FOAD.

  • ||

    Sounds like the ACLU has gotten into the business of 'balancing speech'.

    Not good.

  • NToJ||

    If you have two government laws, one that says no private discrimination, and another that says free speech, you're inviting an ambiguity that the ACLU can't really solve. One solution is to just get government out of the business of policing private discrimination.

  • Ghost of Patrick Henry||

    Will the ACLU defend speech that advocates black supremacy or Muslim supremacy or the supremacy of La Raza or Communist supremacy or other forms of supremacy?

    Why does the racist ACLU hate white people? Where do they obtain the moral authority to hate people on the basis of their skin color?

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