The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.