ACLU Attorney who Argued Skokie Nazi Case: "Liberals are leaving the First Amendment behind."

The N.Y. Times published a detailed analysis about the ACLU"s "Identity Crisis."


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.

NEXT: Today in Supreme Court History: June 6, 2005

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  1. ACLU is just a partisan attack dog for the Democrat Party. It should lose its tax exempt status. It should be shut down.

    1. It is sad that the organization has shamed itself in this way. I had Professor Goldberger when I was a 2L. He is brilliant and honest. He never let his politics get in the way of teaching the material.

      Sadly, I had another professor who just could not keep her politics out of the class room. That was my 1L professor for Con Law. She was a radical feminist and taught Con Law as if it was a seminar on Women’s Rights, Abortion, and the Constitution. My law school class was 50/50 male and female. Somehow, my Con Law class had 37 women and 3 men. And somehow, the three men got the three lowest grades in the class. I remember that the final exam was very strange. I wonder if the law school kept a copy of the exam questions; I’d love to go back and look at it.

      1. @Darth – weren’t the final exams deidentified for grading?

        1. The Unabomber’s brother identified the Unabomber to the FBI from the language style in the NYT published Manifesto. Deidentification is worthless.

        2. We used exam numbers to hide student identity. But I remember that the questions were very odd. They asked for us to respond to issues from a woman’s point of view…which can be kind of hard for a cis-male.
          As I wrote above, I’d like to see a copy of the exam so I could see exactly what was so odd.

    2. My theory is the Skokie case was more to be a thorn in the side of Mr. And Mrs. America than out of pure principle. Can’t even say conservative Mr. And Mrs. America as all of America fought the Nazis. Same for flag burning. Same for defense of (government spending) on art to upend a cross in urine.

      Good luck finding the left defending government defending government spending on art upending an Islamic sacred symbol in urine, using the argument a billion Muslims need to be shaken in their ruling complacency.

      Not to conflate the left with the ACLU, but to 1970s ACLU, guess what? You will start spitting, in the year 2021, with a hiss in your voice, “What are you, a card carrying member of the ACLU?”

      1. Good luck finding the left defending government defending government spending on art upending an Islamic sacred symbol in urine, using the argument a billion Muslims need to be shaken in their ruling complacency.

        Hypothetical hypocrisy is always so pure, it’s no wonder people like to try and use it as an argument.

        1. Because it fits.

          1. Partisan brain thinks partisan hypothetical fits.

            Maybe you’re right. Maybe you aren’t. I have no idea, because speculating about the secret motives of the other side is an exercise in validating your own prejudices, nothing more.

  2. The ACLU has a new more important mission ghost writing defamatory op-eds for Hollywood divorces:

    “In December 2018, an opinion piece authored by actress Amber Heard that discussed domestic violence, specifically her experiences and the fallout she endured after speaking out was published. Although the op-ed never named her former husband and fellow actor Johnny Depp, he sued Heard for defamation in 2019.

    Newly released emails have revealed that Heard’s 2018 opinion piece was actually drafted by staffers with the American Civil Liberties Union (ACLU) as opposed to being fully written by the actress, a detail that may see the rights group hit with a defamation lawsuit by the Depp camp.”

    Evidently when Heard said that she was going to donate half her divorce settlement of 3.5 million to the ACLU they put their top people on it to support Amber in her fight for cash and justice.

    1. Setting aside the ethical aspect of it, was that a good instrumental or tactical decision by Heard? I can believe it would be — as long as the ACLU’s contributions were secret. But it’s the kind of thing that has terrible optics if the truth comes out.

  3. Realistically, the ACLU was originally founded by the left, for the purpose of defending the free speech of leftists. They found the most effective way of doing that to be a principled stance, because principle can convince people on the other side, even when you’re in the minority on an issue.

    But they weren’t defending the rights of Nazis because they wanted to defend the rights of Nazis. They were defending the rights of Nazis as a way of defending the rights of communists.

    These days virtually all the threat to freedom of speech comes from the left, so you don’t have to defend the rights of right-wingers in order to protect the rights of left-wingers.

    That wouldn’t have mattered if they were actually a principled organization. But they never were a principled organization, they were, their whole history, a pragmatic left-wing organization that defended the rights of non-leftists for purely pragmatic reasons.

    This was obvious all along, in things like their utterly fatuous stance on the 2nd amendment, which didn’t change one bit when the Court ruled that, yeah, it actually was an individual right.

    You’d like to think the ACLU has changed. Nope, they’re still the same organization, fundamentally. They’re just shedding the camouflage now that they think they don’t need it.

    1. I’m a long time member of the ACLU who did not renew this year specifically because I disapprove of the direction it’s taking on free speech, and your analysis is simply wrong. Some people really do have principles. There are some principled defenders of the First Amendment who believe it applies with equal force to everyone, left, right and center. I am quite confident that if Roger Baldwin were still alive, he would be just as horrified at the direction the ACLU is taking as I am.

      1. Congratulations: You have just self-identified as shed camouflage.

      2. Baldwin came to his senses about communism. Doesn’t change anything about the ACLU’s pragmatic embrace of ‘principle’. Or else they wouldn’t have dropped the principles as soon as they ceased to be pragmatic.

        1. Brett, just because some would shed their principles at the drop of a hat does not mean everyone else would. Some people actually do act out of principle. I’m sorry you’re so cynical that you have trouble grasping that.

          1. I’m sorry you’re so cynical…

            Did you read the New York Times article? How can you not be cynical after reading it?!

        2. By the way, your position is ridiculous on its face. It assumes that the people running the ACLU today have the same core values as the people running it 100 years ago and that nothing has changed in the last hundred years. You got any evidence for that bizarre claim?

          1. Of course something has changed: The primary threat of censorship now comes from the left, and the ACLU’s priorities have changed accordingly.

            What’s your position? That the core values of the ACLU’s leadership abruptly changed? How did that happen?

            I say their core values are unchanged. All that has happened is that the conditions they are responding to are different: The threat to the 1st amendment now comes from their own side, and is pointed at the enemy, and so no longer worries them.

            1. My position is that you would be hard pressed to find any institution whose views on all issues remains unchanged from 100 years ago. Neither major political party looks at all like it did in 1921. Thanks to Vatican 2, neither does the Catholic Church. Nor do most Protestant denominations. Institutional values change, so why would you expect the ACLU to be any different?

              In case you missed it, the ACLU largely sided with churches over pandemic shutdowns, even though the ACLU is mostly run by people who aren’t personally sympathetic to evangelical theology. Your basic problem is you can’t imagine anyone on the left acting out of honor or principles. Well, sometimes it does.

              1. In case you didn’t notice, the ACLU didn’t go from staunch defender of unpopular speech, to their current status, in the space of a century. They did it over a few years.

                I’d say the pivotal moment was their great triumph in the Citizens United case. From a civil libertarian standpoint, it was a no-brainer. The left were totally outraged, and the ACLU conducted a purge of the principled to appease them.

                After that purge, there was no longer any effective internal pushback against the forces within the ACLU pushing to abandon their principled stance on freedom of speech, and things proceeded swiftly.

                But, my thesis is, the only reason the purge could happen, would happen, is that the left had maintained effective control of the ACLU the whole time, there was never a time when they’d taken a chance on widening their appeal enough that the left might have lost the upper hand.

                1. You are indebted to your imagination for your facts. There was no purge. People on both sides of Citizens United would be welcome in the ACLU. People on both sides of Citizens United serve on the ACLU’s board of directors. You’re making stuff up. And trust me, I am far more familiar with the ACLU than you are.

                  Your claim continues to be that the only reason to change an organizational viewpoint is hypocrisy. Well, when I was growing up, getting a divorce would get you excommunicated from the church. Today, that same church has a support group for divorced people, and two of the elders are on their second marriages. Vile hypocrisy, deliberately calculated, or simply a reflection that it no longer views things quite the same way?

                  1. Oh, am I imagining the part where they replaced their director of litigation with somebody who wrote this? Maybe a different David Cole penned that essay?

                    1. I read it. Where does it say there was a purge at the ACLU? Where does it say that anybody at the ACLU lost their job for being on the wrong side of Citizens United?

                      Again, I know far more about the inner workings of the ACLU than you do. Not only was there no purge, but there are people active at the highest levels of the ACLU who agree with Citizens United. Not many, granted, but they are there. Some ACLU members and officers do see it as a free speech issue. The ACLU is not a monolith.

        3. I feel like you’re getting caught up in the moment here. There are plenty of folks on all sides of the standard US political spectrum who remained committed to principles like these throughout the last ~70 years. Common cause can mean working together to defend free speech, even if you disagree with the speech being said.

      3. K_2,
        I found myself in a position very similar to yours and have given up ACLU membership.
        I’ve had the pleasure of working with ACLU lawyers a decade ago in writing an ABA book on cybercrime. But I do feel the organization has changed.
        Perhaps Brett is correct, but to me it does not feel that way.

        1. Even when they were still sort of principled, (Only sort of, because they were never principled on the 2nd amendment.) their recruiting literature was very “no enemy to the left”; They’d brag about their left-wing triumphs, and keep quiet about defending right-wingers.

          It was very clear they did NOT want to attract too many right-wing civil libertarians.

          If they’d been genuinely principled on the 2nd amendment, and less hostile to right-wingers, they could have become a much more powerful organization. But it would no longer have been an organization reliably controlled by the left.

          1. Brett, your level of cynicism makes me wonder if you’d abandon principles without a second thought, so you assume everyone else would too.

            1. I don’t think it is easy to be too cynical about the ACLU, and hasn’t been since Nadine Strossen was interviewed in these pages.

              “Putting all that aside, I don’t want to dwell on constitutional analysis, because our view has never been that civil liberties are necessarily coextensive with constitutional rights. Conversely, I guess the fact that something is mentioned in the Constitution doesn’t necessarily mean that it is a fundamental civil liberty.”

              1. That seems reasonable, if not downright sensible, otherwise black people would still be two thirds of a white person. Then again maybe that’s the problem you and the rest of the right have always had with the ACLU.

                1. What she said there was that the ACLU would define “civil liberties” independent of the Constitution. She cut the organization loose from any constitutional grounding, to justify prioritizing progressive goals over actual constitutional rights, and to justify actually opposing genuine civil liberties the left disliked.

                  With that move, the ACLU lost its rudder. No, more like they tore it out and deliberately threw it away.

                  1. Where is it written that only enumerated rights are civil liberties?

                    1. Where is it written that enumerated rights aren’t civil liberties? But that’s the position of the ACLU today: If they don’t like an enumerated right, it’s not a “civil liberty”.

                      If she’d stopped at stating that civil liberties aren’t limited to enumerated civil rights, I’d have agreed with that, though I might have disputed her proposed list of additional rights. But that wasn’t good enough. She had to demote some of the enumerated rights, because she didn’t want the ACLU defending them, but also didn’t want to admit there were civil rights the ACLU wouldn’t defend.

                    2. The ACLU has a finite budget so it has to make decisions all the time about where to expend resources. That aside, there are plenty of things mentioned in the Constitution that aren’t fundamental rights, so I’m not really sure what you disagree with in that statement. Is a civil jury trial a fundamental right, or could a state constitutionally make civil cases all bench trials? What about the Tenth Amendment; is that a fundamental right, or just the polity the authors of the Constitution chose? Or the 11th Amendment right of states not to be sued in federal court; is that a fundamental right?

                      You and she may disagree as to what, specifically, is and is not a fundamental right. But I don’t see how you can claim that everything in the Constitution is a fundamental right.

                  2. They’re probably just familiar with history, that’s all.

                2. And if you could find a spot in the Constitution where it says that it’s OK to label black people as only 3/5 of a vote, you’d have a comparison. But there isn’t.

                  The constitution is unchanged, and virtually flawless (other than some vagaries). Judges were interpreting it wrong at that point.

                  1. The constitution can’t fail, it can only be failed. Not sure it’s terribly reassuring to hear that the constitution is perfect but your humanity is dependant on its interpretation by fallible men.

          2. Brett,
            As I said I had a very fruitful working relationship with one of their senior attorney in a major writing project about cybercrime.
            Would their position be the same today? I have no idea.

      4. I am glad you have principles.

        But the reality is that the ACLU doesn’t. As can be seen by their actions that caused you to stop supporting them

      5. Thank you. This article clearly points out there were, and continue to be, principled defenders who are not just out to stick it to the other side. This is enheartening, though their put-upon status is not.

        Speaking of the old guard dying, I presume some of the youngsters are joyous to see them dying off, as they often trumpet the fact change happens with the passing of the generations rather than persuasion of them.

        The new generation doesn’t care about free speech in principle.

        Ummm, hooray?

    2. As it always is and always was with almost all leftist organizations and most leftist individuals.

      Some of that is true for others also, of course. But that’s not the topic.

    3. The civil liberties of minorities remain a threat to conservatives, I guess, hence the enduring hatred of the ACLU by the right, and from that the disingenousness of being concerned that there are progressives working in the organisation. Freedom of speech, as any fule nos, is just a tool you use to attack and undermine universities, and something to whine about when people refuse to take your ridiculous lies and hypocrisy seriously.

      1. This is just stupid. You start out with a statement that is so wrong it’s laughable, and use that as a basis on which to build other stupidity.

        The only ones holding down the rights of black people to flourish is the left. So look in the mirror.

        1. Bigoted right-wingers striving to avoid being recognized as bigots are among my favorite culture war casualties.

          Their current disaffectedness and defensiveness — that our vestigial bigots no longer wish to be known as bigots — demonstrate how effective the liberal-libertarian mainstream has been in changing conservative intolerance (racism, gay-bashing, misogyny, xenophobia) from mainstream default to shameful outlier in modern American society.

          (This has been an impressive display of ankle-biting. Doesn’t change the course of the culture war a bit. Carry on, clingers.)

        2. Now that’s just ahistorical, bubba.

  4. Nazis obviously deserve exactly the same rights as everyone else, but it’s worth remembering that their fundamental aim is to take rights away from people and murder them. If you’re all about protecting the rights of people who want to remove other people’s rights, that kind of leaves the people they’re targeting way out there, exposed.

    1. As I pointed out just above, the ACLU was founded by a group as odious as the Nazis, and more of a threat to public safety: The communists.

      So they had to take a stance that your rights were worth protecting even if you were odious and a threat to public safety, nothing less would accomplish their goal.

      Their so-called principles were entirely pragmatic all along.

      1. You simply cannot believe anyone has ever had principles beyond tribalism. It’s kinda crazy.

        The ACLU was and is definitely not created just as a way to defend communism; your red-baiting is as much an attempt to censor as anything they’re doing.

        And who cares if they were? They managed to do good stuff. And, thanks to the federated way they’re organized, they continue to do so locally.

      2. So you don’t agree with that stance, then? Seems weird from a Trump supporter, voting for someone who was odious and a threat to public saftey.

        1. Another piece of stupidity. Trump was never an “odious threat to public safety”. This is something you imagined in a fever dream .

          1. No, he was odious AND turned out to be a threat to public safety. Pay attention.

    2. It is good that you expose yourself as defending free speech only when it is convenient for your partisan politics

      1. You mean when it’s good for mine and everyone else’s civil liberties?

        1. I think I see how this works:
          step 1: declare your political platform “good for everyone’s civil liberties”
          step 2: declare your opponents’ political platform “bad for everyone’s civil liberties”
          step 3: proceed to suppress your political opponents

          1. Or just have a political platform trhat’s good for everyone’s civil liberties.

    3. it’s worth remembering that their fundamental aim is to take rights away from people and murder them.

      Actually, I don’t think it is worth remembering — and you are about to explain why:

      If you’re all about protecting the rights of people who want to remove other people’s rights, that kind of leaves the people they’re targeting way out there, exposed.


      Maybe you don’t see. Minorities are not “exposed” because people who don’t like them speak their minds. They are exposed when the government does not protect them from criminals — not people who don’t like them, but people who actually harm them. Focus on that.

      1. People who didn’t like them were sure speaking their mind during Jim Crow, and that didn’t threaten or harm them at all, I guess. You’d say Tulsa was the work of criminals, only it’s weird how none of them went to jail.

  5. ACLU is a jewish organization, furthering a particularly private agenda, having little to do with progressive, left, etc. Give it up.

  6. The ACLU used to be principled like a snake in the grass. They were always a leftie organization, but would occasionally go outside of that wheelhouse to defend something like a “right” leaning group to say “look we defend the constitution for EVERYONE…!”

    It was a pretense (even though I think some more principled lawyers who worked for the ACLU genuinely believed as late as the 2000’s that they were a non-partisan organization) which completely got dropped under Romero. And who can blame them for giving up the principle, as it clearly pays to be a party hack.

    1. Pretense seems to be one of the left’s core values.

      1. The modern left invented the justification “the ends justify the means” so what do you expect?

        The left never really supported “free speech” as a core tenant of a free society. Sure, maybe some of them did, but not anyone mainstream in the movement. It was just a way to “stick it to the man”. For example, look at the “free speech” cases from the 60’s through the 90’s and then compare that to “left wing values” today.

        Porn = FREE SPEECH!!!!

        1. The modern left invented the justification “the ends justify the means”

          That’s certainly a take… that only a functionally illiterate person could have.

          1. No, he’s right. It just hits a little too close to home for you, so your knee jerked…

            1. You have any evidence for ‘The modern left invented the justification “the ends justify the means”?’

              DMN is hardly a liberal, either.

              1. If you’re asking in earnest, you’re incredibly ignorant. Or you’re just trolling.

            2. No, he’s an idiot. The ends justify the means pretty much goes back you know, as far as human history does. “The modern left” did not invent this basic philosophical doctrine.


              Also, it didn’t hit anywhere close to home, since I’m 180° from “the modern left.”

    2. Even if it was always a pretense (which I doubt, but will assume for sake of this discussion), it doesn’t bother me much. As long as the 1A was in fact being defended. Reminds me of Paul’s response — in his letter to the Philippians — that some were preaching the Gospel out of greed or envy. His surprising response? Basically a “So what? As long as the Gospel is faithfully preached. God will hold them to account for their motives/hearts.” (Very loose paraphrase. Phil. 1:15-18)

      In the same way, what do I care if the ACLU, or some right-wing legal group, has some undisclosed motives for taking on a free speech case? As long as they are faithfully defending the 1A, that’s enough for me.

      1. Your supposition assumes they are defending the First Amendment because of some underlying principles. Here it is obvious they are not and just co-opting such a principle.

        Maybe in the long run we are better off with “fair weathered friends” of the First Amendment who win victories for the sake of their ends justify the means results. Our legal system is based upon precedent and it is those cases won in the 60’s and 70’s on which many free speech decisions are now based. So your argument does have some merit. But I would rather call out people who have no principle then rely on them to have my back when SHTF.

        1. The problem with fair weather friends, is that they’re only useful while you don’t need them, and you may just forget that they’ll turn on you the moment you DO need them, and make the mistake of relying on them.

  7. Yeah, conservatives do nothing like cut off the mike of someone saying things they don’t like.

    “HUDSON, Ohio — Organizers of a Memorial Day ceremony turned off a speaker’s microphone when the former U.S. Army officer began talking about how freed Black slaves had honored fallen soldiers soon after the Civil War.

    Retired Lt. Col. Barnard Kemter, who spent 30 years in the Army and served in the Persian Gulf War, said he included the story in his speech because he wanted to share the history of how Memorial Day originated.”

    Oh, wait a minute.

    The point here is that extremists on all sides of the political spectrum attempt to limit free speech, and have for centuries. Of course the conservatives who do so think it is ok for them because they are on the side of God and Country and their opponents are atheistic commies socialists who spew speeches that have no place in the public dialogue.

    Now pardon me while I go and shout down the public commentary portion of our school board meeting to protest teaching Shakespeare because in his day men dressed up as women to act in his plays. Oops, too late, the book burners beat me to it.

    1. Whataboutism is not a defense

      1. Pointing out that both tribes are terrible on the Bill of Rights is not whataboutism.

        And people that bring up whataboutism in discussions are effectively saying “let’s not discuss my side’s bad behavior.”

        And pointing out bullshit from the right does not in any way “defend” bullshit from the left. It’s a concession that he’s got no defense regarding poor behavior from the left.

        So y’all basically conceded to each other without having to explicitly do so.

        1. ACLU = random local Legion officer?

          Dismissing concerns about a major national organization because of the actions of two local idiots is classic whataboutism.

          1. Bob, is this directed at me? I didn’t dismiss either side. I didn’t compare the sides’ behavior as to magnitude.

            I basically said that both are/were bad and that pointing out shitty behavior by the other side doesn’t defend or excuse the shitty behavior of one’s own side.

            I’m not sure how any rational person – assuming there are any left – can argue with that.

        2. Someone at the Post, a person with control over the sound system, made a horrible decision. The American Legion Department of Ohio is taking harsh measures to punish this action:
          “Effective immediately, [American Legion Department of Ohio] Department Commander Roger Friend has suspended [the] Hudson Lee-Bishop American Legion Post 464 Charter pending permanent closure,” stated a news release issued by the American Legion Department of Ohio Friday afternoon. “Upon demand, Jim Garrison has also resigned as a Post Officer and we have since demanded that he resign his membership altogether. The American Legion Department of Ohio does not hold space for members, veterans, or families of veterans who believe that censoring (Black) history is acceptable behavior.”

    2. How do you know these are “conservatives”….? In my experience, vets tend to run the gambit of political persuasions. Sounds like they cut the mic because he went off script at a private event when he was asked to restrict his comments. Personally, I would have let him finish, but I’m not seeing anything here other than that…

    3. This is an interesting story, for which you’ve provided not a single link, and no indication as to why the mic cut-off was done.

      Was it because he gave them his “speech” before hand, and they cut him off when he digressed from it?

      Who was the group? Why would an Ohio group object to stories about freed slaves (the point of the Civil War) honoring Union troops?


      Your story makes no sense. Give us a link

      1. is a good summary of the current status.

        The politics of the two officials of the local post are not made explicit, but I think it’s enlightening to see that the next level up is kicking them out over their decisions.

        1. ” The politics of the two officials of the local post are not made explicit ”

          Cindy Marsh Suchan, , explicit version.

          1. Typical trash from the Rev. Nothing about Cindy. Just a Redit post claiming that someone found some things from someone they claim is possibly her son.

            Great research there, Rev!


        2. So, two officials say “this event is only supposed to be about people from our area and how they sacrificed”, the speaker goes outside that range, adn they cut him off.

          For which the American Legion nukes them, and their Post.

          And this is supposed to teach us how bad “conservatives” are?

          Thank you for the link, Michael.

    4. “cut off the mike of someone saying things they don’t like.”
      That was a favorite tactic of Mayor Richard J Daley, hardly right wing and well acquainted with voting fraud.

  8. It’s easy to defend the free speech rights of those you agree with. ANYONE can do that! What’s hard is to defend the free speech rights of those you DISAGREE with. Why is it important to do that? Because free speech is an important value in itself, even when you disagree with what’s said. A Jewish lawyer working for the ACLU to defend the free speech rights of Nazis sends that message. But if an organization — right wing or left wing — supports only the right to agree with their own positions, it’s not supporting the principle of free speech; it’s just advocating its own ideaology. If power structures change and repressive Rightists take power in Congress, or schools, or State Governments, or universities, what credibility will the ACLU have to argue that the new power structure has no moral right to repress speech the power structure disagrees with? Isn’t it all a question of who has the power?

    1. Hear, hear.

    2. And my usual reminder: the value in free speech isn’t that there’s high value in the drool pouring forth from some caveman’s mouth.

      It’s in denying dictators their best golf club in their bag of tyrant tools: the power of censorship.

      You have to fight it on the grounds of awful speech. Why? Next stop: meaningful speech.

      1. This is why I objected to the recent go-round praising free speech for its value in the marketplace of ideas.

        Rather than it being a full-throated defense of free speech, it seemed to be an insidious way of putting in a crack between valuable and caveman speech. Its purpose? To suggest awful speech need not be protected since it does not support the marketplace of ideas.

        Because, you know, democracy is safe to wield censorship, as the vote is great prophylactic against demagogues’s mouths to crowds.

        Wait, what?

  9. The post was not ‘whataboutism’. The point was that attacks on free speech are independent of political positions. So if one is going to write about that topic one has to acknowledge that fact.

    As for the incident cited, well maybe the American Legion is filled with progressives but if you believe that I have a bridge across the East River to sell you. But if anyone wants examples of right wing speech represssion, well, I will need some time, maybe at least 20 or 30 seconds.

    1. But if anyone wants examples of right wing speech represssion, well, I will need some time, maybe at least 20 or 30 seconds

      I’ll save you the trouble:

      1. Is that really free speech repression?

        That’s just freedom of association.

        1. When people were shouting down speakers at, say, Berkeley the right equated the “heckler’s veto” with speech suppression. Correctly, I think.

          The Ohio situation is sauce for the goose.

  10. “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. ”

    Except Jews…

    And I expect this will soon be the case with the “new Jews”, Asian-Americans.

  11. I know David Goldberger very well. I had him as my professor for Political and Civil Rights in 1983. He is outstanding. I am a political conservative but his class was my favorite class in law school. Funny thing is, I did not know who he was at the time I took the class. I did not learn about his role in the Skokie case until a year later.

  12. “A law professor argued that the free speech rights of the far right were not worthy of defense by the A.C.L.U. . . . . ”

    If political speech was a bell shaped curve, with the far right and far left placed on opposite sides, where would the ACLU place the line to define “far right”?? I’m guessing it’s very close to the middle.

    1. b/c there used to be a real skepticism of the far left

      lol today you can be kicked off a suburban high school campus for criticizing the Communist Party of China (really happened last month)

      which, btw, is where this road ends

      b/c progressives now mostly believe the differences between the Democrats and Communist Party of China are significantly smaller than the differences between Democrats and Republicans

      thus the USA’s failure (particularly woke USA, which, remember, boycotted Georgia over a voting rights law that expanded voting rights, because of slavery hundreds of years ago) to take any real strand action against actual slave labor camps in Xinjiang even as America is convulsed by innumerable race riots in response to an overdose on the very fentanyl that Party insiders make billions of dollars selling to Americans

  13. The mistake is in the title quotation. Opponents of free speech are by definition not liberal. Leftist, yes.

    1. All these weird anti-CRT laws are from leftists?

    2. they call themselves “liberal” for the same reason the people openly beating journalists in the street call themselves “anti-fascist” and the military dictatorship on the Korean peninsula calls itself “Democratic”

      but no worries, the progressives now control the dictionaries too, so pretty soon it won’t even be possible to formulate concepts like “freedom”

  14. I’m quite confused about the left/right line everyone seems to be drawing.

    On the one hand, politics isn’t a one-dimensional spectrum, and treating it like it is makes a conversation about political beliefs impossible.

    On the other hand, fascists aren’t really ‘on the right’ in any meaningful sense.

    The left-right political terminology originated in revolutionary France, describing where political groups sat in the assembly. The left was communists, true, but the right was *Royalists*, which have nothing in common with pretty much any strand of US political thought. (Classical liberals were in the center of the chamber, not because those beliefs are somehow ‘between’ Communists and Royalists, but because they had to sit somewhere. They probably hated both wings just as fervently as the wings hated each other).

    Fascists aren’t royalists. And they sure aren’t classical liberals (which would cover much of libertarian and small government conservatives roughly). They don’t even place in revolutionary France’s political spectrum. To put them on the ‘right’ just because they hate communists makes a hash of any sort of understanding of political ideology. (They also hate classical liberals and royalists).

    Fascism is a authoritarian collectivist ideology. If the left-right spectrum has any meaning (which I doubt), they’d be on the left. They hate communists so much because they aren’t that different from each other in the big picture – you hate the ones who almost get it “right” but miss more than you hate the people who get it really wrong. (Just like in European history, the pagans weren’t liked (to put it mildly), but the people various Christian groups really hated were the heretics – all those other Christian groups who didn’t agree with them).

    This whole comment section is a bunch of uninterpretable nonsense that has the political understanding of a bunch of grade schoolers. Stop it.

    (I can think of several valid multi-dimensional ways to more accurately depict the relationships of various political beliefs, none of which can be plausibly reduced to a single-axis system).

    1. (Note: when i say the communists were on the left in revolutionary France, I realize they weren’t technically communists yet since Marx hadn’t been born yet. But there were socialists which believed in a society run by a centrally planned government – they’re communists in all but the label).

      1. But there were socialists which believed in a society run by a centrally planned government – they’re communists in all but the label).

        Squirrelloid, if you take as a historical standard your own notions of present-minded plausibility, of course you get history wrong. Historical figures were never party to systems of thought which evolved after they were dead.

        When you look to history, try to remember that historical figures knew nothing of, and were not influenced by, events which occurred in the interval between our time and their own. Pick any modern social or political controversy, and read the historical record to discover what were the views of long-ago figures in similar circumstances, and you will discover the exercise an utter waste of your time. Again and again you will find events which suggest a modern context might apply, but again and again you will discover historical figures who wander into the vicinity remain almost magically oblivious to questions and consequences the context suggests to you.

        From the vantage of historical figures, our time and thinking always lie in the unknowable future. Failure to stay mindful of that is a common cause of ridiculous interpretations among would-be originalists.

        1. And Marx wasn’t a sudden break with history, but a continuation of a particular strand of thought. Identifying earlier centralizing socialists with them ideologically is not far-fetched.

          1. Identifying earlier centralizing socialists with them ideologically is not far-fetched.

            It is incredibly far-fetched. Far-fetched and present-minded. It is so far-fetched that when actual historians see someone doing it, they don’t even check references; they recognize on sight when someone is trying to smuggle present-minded crap into the historical record.

            Historians have trained themselves not only to know what long-ago figures thought, but also what they were incapable of thinking. And they were incapable of thinking up Marxism before Marx was born. John Winthrop wrote a famous sermon which is generally called, “A Model of Christian Charity.” Read it, and then ask yourself whether, for instance, “We must be willing to abridge ourselves of our superfluities, for the supply of others’ necessities,” means Winthrop—the 1630 Puritan—was a premature Marxist. Or, alternatively, does it mean that Marx was secretly channeling the Bible, like Winthrop was? Has all history since the Bible been a leftist plot?

            By the way, there is a famous bit down toward the bottom of that Winthrop sermon, about a city on a hill. If you want an example to show how stupid you can look if you try to mine history for present advantage, you can’t do much better than read that in the original. Then ask yourself how Ronald Reagan got the quote exactly backwards, turning Winthrop’s call for humility into a blasphemous boast.

            1. My mea culpa was specifically acknowledging they weren’t outright Marxists with all the ideological baggage, but similar enough for the purpose. In any analysis grouping political ideologies, they’d group pretty close to Marxism.

              Marx evolves out of this body of socialist thought. Your argument is like arguing we can’t cladistically group early dinosaurs with birds, because there were no contemporary birds. Nonsense, birds evolve from dinosaurs – of course they’re similar in materially relevant ways.

              You seem to be missing the forest for the trees, which is while you can place all modern socialists and communists on the ‘left’ in the revolutionary france political scheme, the ‘right’ was royalists, and that has nothing in common with modern US political ideologies.

  15. Since the failing NYT is a biased Marxist rag, I assume we’re all dismissing this article as Fake News, right?

    1. Mashed potatoes and gravy, Marie.

  16. The comments here are pretty revealing in who cares about civil liberties, and who is so soaked in demonization of liberals, they cannot countenance anything of the left doing good ever.

    1. The left has itself to blame to the extent that it has prioritized tribalism (do not protect the free speech rights of the “bad guys”) over principle (everyone has free speech rights, including the bad guys).

      Of course, we should not overgeneralize. The older liberals do not approve of this embrace of tribalism. And the same is true of many younger people, who we should not generalize about excessively either. People who embrace tribalism appear to have taken a dominant position within the ACLU, at least.

      Overall, I think freedom has increased in practical ways within society lately. But, as the ACLU case shows, backsliding is always a possibility as some people become so spoiled that they take fundamental rights for granted since they have never felt those rights threatened.

      1. That’s not how it works – you don’t get to excuse your own tribalism by pointing over there and saying ‘they made me do it!!’

        I’m not excusing the ACLU’s becoming more explicitly partisan in the past decade, and you don’t get to excuse the ‘ACLU was always bad, but just hid it well’ partisan telepathy crowd around here.

  17. Confusion here seems nearly universal. The notion is mistaken that there is some straight, principled, speech-protective line which runs from Skokie to tomorrow. The identity crisis at the ACLU is more about that confusion than about any abandonment of principles.

    The Skokie case is incomparable to most of the examples to which it is now held up as a standard. Skokie was about two 1A rights, speech and assembly. Most of the cases which trouble ACLU critics today are about a third and different 1A right, press freedom. Problem is—because of the internet, willy-nilly—much of what was speech in the time of Skokie has become publishing today.

    The difference matters because at the time of Skokie, publishing nearly universally implied editing prior to publication. Today the internet norm is publishing without editing, with a mistaken tendency to mis-call that, “speech freedom.” National politics, no less than ACLU management, have been convulsed by stresses imposed by that conflation. Publishing calls forth far greater social demands for responsible management than speech does, even in the case of parades.

    Shockingly, discussions about how, and how much, to involve government in censorship of private publishers have lately become everyday fare, even on this rights-protective blog. That is what you get when you fail to notice that the free-and-easy legal treatment of speech got transitioned disruptively into the legally constrained and carefully managed practice of publishing. In short, you get confused about differences among rights.

    What the ACLU struggles with is the effect of that confusion—the far greater potential for disruption—with social and personal harm—which attends publishing (let alone, publishing without editing), compared to the bygone evanescent effects of a parade—however memorable. Incommensurate effects are sharply felt, while their cause goes unnoticed.

    Notably, the Skokie, “principle,” never really became a principle in widespread practice. The nation was not swept by a persistent phenomenon of Nazi parades everywhere. Had that happened, who would now remember Skokie as a noble principle?

    The legal value of the Skokie case was not really in the universality is said to affirm, but instead in its exceptional character. It was so far out that it helped to circumscribe applicability for speech freedom within an expansive circumference.

    That result was the triumph which made lawyers and rights advocates remember the case fondly—while the contextual precedent of the case went all but unrepeated. Today, few cases actually need to rely on the Skokie precedent full strength. Those which do draw not admiration, but vituperation. Check out the Westboro Baptist case for an example.

    How would memory be altered had the Skokie result been otherwise, with pro-Nazi rallies become a powerful and popularly-defended political norm throughout the nation? Would Skokie continue as a celebrated precedent after that?

    Think of the internet as the mechanism which finally made Skokie commonplace, customary, and continuously influential. It is as if the internet transitioned one idiosyncratic instance of evanescent speech into a universal norm to be newly applied, full-force and permanently, to the nation’s public life—doing it via takeover of the previously-separate and previously more legally constrained practice of publishing. The question raised is what happens when the abiding reality of publishing in American public life becomes Westboro Baptist, all the time?

    After that, of course there is confusion. There ought to be. Sorting that out has become an emergency need, but even rights experts continue in a state which looks more like stunned denial than like recognition of what happened, let alone why.

    1. Good argument. Thank you for that. Good law is sometimes very hard to accept and difficult to apply consistently. We always have bad facts coming along that tempt us to abandon the law.

    2. I’m not sure what difference you think it being freedom of the press vs freedom of speech makes. The first amendment is pretty clear that the government isn’t to interfere with either. (And considering the publication of pamphlets has been readily accessible to just about any movement, its not like ‘publishing’ was somehow unavailable before the internet to anyone who cared, nor were editorial standards necessarily high historically.)

      And the correct answer to bad speech is more speech, not censorship and not government regulation. Nazi rallies didn’t become common because most people aren’t Nazis. That remains true today. That a small minority can find each other readily on the internet doesn’t change anything.

      1. Squirrelloid, the difference it makes—speech freedom vs. press freedom—is they are different rights, customarily governed under different legal regimes. The law of speech was not the same as the law of publishing. Perhaps it would be easier for you to avoid conflation had the subjects been speech freedom and free exercise of religion. See, they are different kinds of conduct, so the conduct regulated by law is not the same for each, so the laws have been different too.

        As for, “more speech,” that makes sense in the context of policy debates. It makes zero sense in the context of damaging publications. If you were to ruin someone’s livelihood with a published libel, and then tell him his remedy was, “more speech,” how would that be anything but you taunting your victim?

        I am not the one talking about government regulation. I oppose government press regulation. But aggrieved right wingers do demand government regulation of private publishers. If you think there ought to be mandatory adherence to terms of use, or treatment of Facebook as a common carrier, or some requirement that Twitter let Trump tweet at will, then you are one of them.

        1. First, I’m not a rightwinger. I don’t think Facebook is a common carrier, nor do i think twitter is obligated to allow anyone to tweet if they don’t want to.

          If there’s libel (or defamation), the appropriate remedy is to sue. And that applies whether it was speech or publishing. You don’t get to libel or defame someone just because you have freedom of speech.

          Considering publishing is just a type of speech, its not clear they really are distinct rights.

          Regardless, its not clear how the argument you initially made distinguishes between speech and press rights in a material way. The closest you get is: “Publishing calls forth far greater social demands for responsible management than speech does”. There’s several problems with that statement.

          (1) Claim offered without warrants. It’s not self-evidently true.

          (2) Historical publishing wasn’t always, nor even generally, responsible. Plenty of (at least arguably) irresponsible things have been published, from anarchist pamphlets to yellow journalism historically, and (among other things) pretty much anything written by Deepak Chopra in relatively recent history. You think Gene Ray would have been stopped from publishing Timecube in the era before the internet? Plenty of similarly wacky nonsense saw publication in some form in the last 200+ years.

          At which point, what materially distinguishes speech from publication? Specifically in regards to how the rights should be treated.

          And finally, how are you not talking about government press regulation? We have a right to a free press – if that right is different than our speech rights, who else would mediate those differences? How else would those differences manifest? You can *only* be talking about government regulation. And you literally just said they’re governed by different legal regimes – how is that not government regulation? (And just because the legal regime is different doesn’t mean the rights are different – ie, if the legal regime differs in the nature of remedies or legal process available, but penalizes the same kinds of speech as publishing, then the same kinds of things are excluded from the rights of each).

    3. nah, they’re just becoming progressive

  18. The newer faction of people in the ACLU who don’t think that free speech is very important only think like that because they do not think their own speech is likely to be subject to censorship.

    If you think you are part of the ruling class that decides which speech is allowed and which isn’t, then the argument for free speech seems less compelling. That is, unless you think you might want to change your mind on some important issue. But if you already have all the right answers, who needs that freedom? And just so long as you sure that your tribe will always be ascendant.

    This change in the ACLU reflects the polarization of our society, where tribal values are coming to take priority over universal values among significant segments of society.

  19. Professor Goldberg was the federalist society advisor at Ohio State when I was president. He was very (very) clear that he did not support the organization, just it’s right to speak freely. Even in the early aughts (when I attended), that was controversial and so rare that he is the only professor who would admit to even that level of support. I had no idea he was such a big deal! As another poster has noted, being libertarian at Ohio State made me far right to my profs.

  20. It’s The Naughty Nineties all over again. New management takes advantage of of prior management’s reputation for integrity to help them take people for all they’re worth.

    Who’s on first?

    The ACLU has the right to change its mission and goals. But it is well along the way into its transformation from a non-partisan civil rights organization to a partisan political organization.

    And in doing so it claims odd positions. For example, it claims it has the only possible secular position on abortion; anyone who disagrees with it is establishing religion. That’s a very convenient way to look at things if one wants to find an excuse to ram ones politics through the courts. But its peculiar view of what constitutes “religion,” while expansive, is never more expansive than convenient. It wouldn’t occur to it to even conceive, for example, that its own view opposing American freedom of choice on immigration could be regarded as every bit as much a religious view, if one was willing to actually take its concept of religion seriously and aplly it with any evenhandedness, as views opposing freedom of choice on abortion. Same, for that matter, with opposition to freedom of choice on slavery (which was of course characterized as a purely religious view, and hence improper for a secular state, by John Calhoun and like-minded slavery proponents.)

  21. All’s I see is a bunch of cons whining about a private organization . . . and failing to get any results.

  22. I’m a proud, card-carrying, monthly-contributing member of the ACLU.

    I share the concern that their willingness to pick and choose cases based on a progressive ideology is somewhat concerning. I’d be in favor of a program based on protecting individual liberties, irrespective of the underlying ideology, both under the First Amendment and under other amendments and judicial holdings that have staked out an expanded room for individual freedom (such as on matters of gun rights and reproductive freedom). I’m also broadly supportive of their work to fight voting restrictions and the worst abuses of the Trump administration, when it flouted the constitution and the rule of law when restricting immigration and asylum. Ultimately, I’m in favor of protecting hate speech over letting protections weaken to the point where an earnestly authoritarian president (which we are perhaps only a few years away from) can use bad case law to come after his political opposition.

    So, I have some angst over the ACLU’s leftward shift. But given the choice between an organization that de-emphasizes cases that its increasingly leftist constituents are disinterested in pursuing and the kind of agenda that motivates FIRE or Josh, I’d choose the ACLU every time. The ACLU wants to preserve constitutional liberty. Josh seems indifferent on that point.

    1. > the kind of agenda that motivates FIRE

      What is this oh-so-sinister agenda?

  23. lol why is anyone surprised?

    any institution that is not explicitly anti-progressive will inevitably become progressive over time

    ordinal vs cardinal

  24. Cancellation by private citizens and businesses is not a first amendment issue. You can’t make people like you. Get over it.

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