The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Prof. David Cole, the ACLU's National Legal Director, has an article with this title in The Nation; an excerpt:
Earlier this month the ACLU argued before the US Court of Appeals for the 10th Circuit in defense of a high school student expelled for temporarily posting to Snapchat a picture of his friends dressed in World War II–era clothes at a thrift store with the caption: "Me and the boys bout to exterminate the Jews." He took it down shortly thereafter—and apologized for what was a stupid and deeply offensive joke—but the school expelled him nonetheless. We argued that while the anti-Semitic message was deeply offensive, it was also protected by the First Amendment when uttered outside of the school, and could not be the basis for punishment. In doing so, we were only doing what we have always done—defending speech rights for all, even those with whom we disagree….
We continue to believe that the First Amendment is the foundation of our democracy, and we defend it for precisely that reason. It remains the best protection for those who lack power, and for those pressing for equal treatment. It protects our ability to speak out, to organize, to associate with like-minded others, to march in the streets, and to demand change from our government. It's the lifeblood of Black Lives Matter, #MeToo, and the LGBTQ movement—and of anti-abortion activists, gun rights advocates, and libertarians. Yes, it extends to the powerful and hateful as well as the marginalized. That's the thing about rights. They apply universally. But if you are in the minority, whatever side you are on, there is no more important safeguard. None….
I drafted our case selection guidelines precisely to reaffirm our commitment to free speech, not to abandon it, after some within and outside the organization began to question the defense of hate speech. The guidelines could not be more unequivocal: they expressly proclaim that free speech rights "extend to all, even to the most repugnant speakers—including white supremacists—and pursuant to ACLU policy, we will continue our longstanding practice of representing such groups." They also acknowledge that free speech, like many rights, has costs, but explain that those costs do not furnish a reason to abandon its defense. Instead, the guidelines set out a process for honestly confronting the costs, and recommend ways to mitigate the harm when we take on cases that present tensions between our values. One can, for example, defend the speaker even as one condemns his views—as we did with the Nazis in Skokie, or when we represented Milo Yiannopoulos in a suit against the Washington, D.C., Metro for refusing to display an advertisement for his book.
But actions speak louder than words. Since Charlottesville and the guidelines, we have defended the First Amendment rights of countless individuals and groups whose views we do not share. They include: Trump lawyer Michael Cohen, the NRA, anti-Semitic protesters outside a synagogue, racist and homophobic college students, and the Koch-funded Americans for Prosperity. Most recently, we called on Georgetown Law not to fire conservative scholar Ilya Shapiro for his "lesser Black woman" tweet about Biden's promise to name a Black woman to the Supreme Court; criticized the FBI's tactics in investigating the conservative group Project Veritas; and hailed Elon Musk's decision to re-platform Donald Trump. We didn't agree with the speech of any of these individuals or groups—but that didn't stop us from defending their First Amendment rights….
We believe that even if free speech and equality can appear to be in tension in particular contexts—such as the regulation of hate speech or campaign finance—at a deeper level speech rights and equality are mutually reinforcing. Those who stand with us for racial justice, women's rights, equal dignity for LGBTQ individuals, immigrants' rights, and the rights of people with disabilities can achieve those ends only by exercising the freedoms that the First Amendment guarantees. Free speech and association undergird every social justice movement in this country. When Martin Luther King Jr. reminded us that "there is no gain without struggle," he was talking as much about the First Amendment as the 14th. Those who would sacrifice speech to attain equality will achieve neither.
The critics, in short, are wrong. We remain committed to the principled defense of speakers with whom we fundamentally disagree. If that commitment seems quaint in today's world, call us old-fashioned. We'll be there to defend your right to do so.
I appreciate Prof. Cole's point, and the ACLU's work in many of its free speech cases. I also e-mailed Ira Glasser and Wendy Kaminer, two prominent critics of what they see as the ACLU's recent move away from its traditional position on free speech, and wanted to pass along their thoughts as well.
Glasser says he stands by the concerns that he had expressed before, for instance when he was interviewed by Bill Maher. The new Case Selection Guidelines (which he urges people to read), he argues, are a retreat from ACLU's traditional viewpoint-neutral approach to protecting speakers. The ACLU's view used to be that it was good for all speakers when the ACLU challenged speech restrictions even when they were applied to the KKK, the Nazis, and the like, because otherwise the same (or similar) restrictions or restriction-friendly legal doctrines would be used against others as well. But the ACLU has shifted to (quoting the Guidelines) stressing that "although the government may not discriminate based on viewpoint, the ACLU as a private organization has a First Amendment right to act according to its own principles, organizational needs, and priorities," to concluding only that "the speaker's viewpoint should not be the decisive factor in our decision to defend speech rights" (emphasis added), and to enumerating as a factor that:
Our defense of speech may have a greater or lesser harmful impact on the equality and justice work to which we are also committed, depending on factors such as the (present and historical) context of the proposed speech; 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. At the same time, not defending such speech from official suppression may also have harmful impacts, depending on the breadth or viewpoint-based character of the suppression, the precedent that allowing suppression might create for the rights of other speakers, and the impact on the credibility of the ACLU as a staunch and principled defender of free speech. Many of these impacts will be difficult if not impossible to measure, and none of them should be dispositive. But as an organization equally committed to free speech and equality, we should make every effort to consider the consequences of our actions, for constitutional law, for the community in which the speech will occur, and for the speaker and others whose speech might be suppressed in the future.
Glasser argues that this approach–actually requiring its lawyers to consider "the extent to which … speech may assist in advancing … goals … contrary to our values" before deciding whether to defend the speaker's right to speak–is a major withdrawal from the ACLU's viewpoint-neutral tradition of defending speech rights. This withdrawal is also reflected, he says, in other areas, such as censorship on university campuses, where the ACLU is neither the presence nor the force it once was. "The ACLU has diluted its defense of speech rights and there's no getting away from that; and part of the problem is that they don't seem to have the courage or the integrity to say so. They just keep denying it."
Wendy Kaminer, a former ACLU board member, writes:
[T]o evaluate ACLU's record on speech over the past couple of decades (and the retreat from fundamental principles dates back decades), you need to know about the cases they didn't take and the controversies they avoided…. Many (though not all) of ACLU's sins are sins of omission—which, of course, are much harder to discern.
And, she writes, there have been such omissions, pointing, for instance to Harper v. Poway Unified School Dist., where the ACLU did file a brief but only in the second stage of the case (and after her Wall St. J. op-ed criticizing the ACLU on this); she reports that Harper's lawyer "told me he tried to get the California ACLU affiliate involved initially but it declined." She also links to her piece "The ACLU's Silence on Cancel Culture" and another Wall St. J. item; and she points to the 2018 guidelines, which she says "ACLU tried to keep secret by falsely labelling them 'attorney/client privilege.'" She concludes:
[Cole's] defense mainly consists of a general denial that ACLU is "abandoning" its free speech work (though the charge isn't really that it has entirely abandoned the work), buttressed by a couple of examples of their defense of the right to engage in racist, anti-Semitic, or homophobic speech—supplemented by a boilerplate explanation of the importance of free speech and First Amendment rights, which is not really at issue.
I've always had a lot of respect for David Cole and believe he deeply understands and values free speech. Instead of offering this general, unconvincing denial of ACLU's changed approach to it, I wish he'd acknowledge, defend, and explain it. Then we might have an interesting and worthwhile debate—instead of all this obfuscation. ACLU has a right to change its values and agenda; I just wish it would do so honestly and openly.
I have no firm view on the subject, but I just wanted to pass along these other views.
UPDATE: Prof. Cole replies:
Ira Glasser and Wendy Kaminer share my organization's passion for the importance of protecting free speech as a universal right, and I appreciate all they have done in defense of that principle. But I remain mystified by their responses, which fail even to acknowledge the record I have pointed to of specific work we have done defending people with whom we disagree. Glasser identifies no case we have avoided. The only case Kaminer can cite is one in which we actually filed an amicus brief supporting the First Amendment, but apparently not as early as she would have liked. Kaminer also makes a general reference to "cancel culture," which we have, like her, criticized (see, e.g., my criticism of the call by Georgetown Law students to fire Ilya Shapiro, or my defense of Ron Sullivan when Harvard took away his deanship for his defense of Harvey Weinstein). For people who have been making this charge for so many years, you'd think they'd be able to point to some evidence. But they can't, and they have nothing to say about the undeniable fact that we have regularly and consistently defended those with whom we disagree.