The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In 2016, I published an article titled Collective Liberty. I explored how liberal groups, the ACLU in particular, were abandoning traditional notions of civil liberties. Instead, these groups were trending towards progressive notions of social justice. In a conflict between free speech and progressive priorities, the First Amendment must suffer. I don't think I was breaking any new ground. I merely observed how views of free speech were shifting on the left and the right. Since 2016, these trends have become even more troubling.
Today, the New York Times published a detailed analysis about the ACLU's "identity criss." The article begins with a vignette about David Goldberger, who argued the famous Skokie Nazi case for the ACLU. In 2017, the ACLU gave him an award. But during the ceremony, he "felt a growing unease."
A law professor argued that the free speech rights of the far right were not worthy of defense by the A.C.L.U. and that Black people experienced offensive speech far more viscerally than white allies. In the hallway outside, an A.C.L.U. official argued it was perfectly legitimate for his lawyers to decline to defend hate speech. Mr. Goldberger, a Jew who defended the free speech of those whose views he found repugnant, felt profoundly discouraged. "I got the sense it was more important for A.C.L.U. staff to identify with clients and progressive causes than to stand on principle," he said in a recent interview. "Liberals are leaving the First Amendment behind."
I don't know which law professor Goldenberger is referring to, but these views are held as a talisman of the progressive left. It is verboten to question how a racial minority reacts to speech. It is immediate grounds for cancellation to state that protecting free speech is more important than eliminating the grounds of offense. Indeed, the failure to speak out against purported offensive speech is itself an act of white supremacy. Silence is violence. These orthodoxies cannot be questioned. The article identifies growing "internal tensions" within the ACLU.
Its 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. Those debates mirror those of the larger culture, where a belief in the centrality of free speech to American democracy contends with ever more forceful progressive arguments that hate speech is a form of psychological and even physical violence.
The old guard is unwilling to accept this shift. Look at Ira Glasser:
These conflicts are unsettling to many of the crusading lawyers who helped build the A.C.L.U. The organization, said its former director Ira Glasser, risks surrendering its original and unique mission in pursuit of progressive glory. "There are a lot of organizations fighting eloquently for racial justice and immigrant rights," Mr. Glasser said. "But there's only one A.C.L.U. that is a content-neutral defender of free speech. I fear we're in danger of losing that."
During the Trump Administration, the organization joined the legal resistance. They raised oodles of dollars, but had to accept the progressive mantra. The Times observes that the ALU's 2019 report didn't even mention "free speech." But they did endorse the resistance. And the ACLU has put the Free Speech attorneys on the back-burner.
Since Mr. Trump's election, the A.C.L.U. budget has nearly tripled to more than $300 million as its corps of lawyers doubled. The same number of lawyers — four — specialize in free speech as a decade ago. . . .
The A.C.L.U. became an embodiment of anti-Trump resistance. More than $1 million in donations sluiced into its coffers within 24 hours and tens of millions of dollars followed in 2017, making the organization better funded than ever before. Salaries reflected that — Mr. Romero now makes $650,000 and some staff attorneys $400,000. Its 2017 annual report came with "RESIST" superimposed on an image of the Statue of Liberty. . . .
Still, many of the group's newly hired lawyers — the staff has grown markedly more diverse under Mr. Romero, who is the organization's first openly gay executive director — often are most energized by issues that range beyond and sometimes collide with free speech advocacy. "Am I sorry I leaned into our opposition to Trump? Hell no," Mr. Romero said. "I'm asked, 'Are we a free speech or racial justice organization?' and I answer, 'Yes.' We are a domestic human rights organization."
The money that flooded into the A.C.L.U. after Mr. Trump's election allowed Mr. Romero to flex the organization's progressive muscles and greatly increase the size of its staff. Many of the new employees, however, were not nearly as supportive of the A.C.L.U.'s traditional civil liberties work. They worked inside their policy silos, focused on issues like immigration, transgender rights and racial justice.
But in interviews, several younger lawyers suggested a toll taken. Their generational cohort, they said, placed less value on free speech, making it uncomfortable for them to express views internally that diverged from progressive orthodoxy.
Thankfully, FIRE is still willing to defend free speech on Campus. The ACLU, alas is AWOL.
Two decades ago, as free speech battles erupted on college campuses, a new civil liberties group took shape to vigorously advocate for First Amendment principles. Called the Foundation for Individual Rights in Education, the organization was purposely nonideological and nonpartisan. A founder, Harvey Silverglate, had served on the board of the A.C.L.U. of Massachusetts and considers it an ally even as he sees its limits. "When you deal with campus hate speech, you know they most often won't file a brief with you," Mr. Silverglate said. Mr. Romero, he added, "is not a liberal, he's a progressive. His A.C.L.U. prefers cause work." That may be an overstatement. Mr. Wizner, who runs the A.C.L.U.'s free speech project, has represented the National Security Agency whistle-blower Edward Snowden and rattled off important cases his lawyers handled. But FIRE, he acknowledged, has taken a strong lead on campuses, where so many consequential battles are fought.
"FIRE does not have the same tensions," Mr. Wizner said. "At the A.C.L.U., free speech is one of 12 or 15 different values."
Read the rest of the article.