In a confidential memo obtained by former board member Wendy Kaminer, the American Civil Liberties Union has defined a policy that retreats from and undermines—perhaps the best word is betrays— its traditional mission of protecting the Bill of Rights, and especially the First Amendment rights of all Americans. The memo says in part,
Work to protect speech rights may raise tensions with racial justice, reproductive freedom, or a myriad of other rights, where the content of the speech we seek to protect conflicts with our policies on those matters, and/or otherwise is directed at menacing vulnerable groups or individuals….We are also firmly committed to fighting bigotry and oppression against other marginalized groups, including women, immigrants, religious groups, LGBT individuals, Native Americans, and people with disabilities. Accordingly, we work to extend the protections embodied in the Bill of Rights to people who have traditionally been denied those rights. And the ACLU understands that speech that denigrates such groups can inflict serious harms and is intended to and often will impede progress toward equality.
…There is no presumption that the First Amendment trumps all other amendments, or vice versa. We recognize that taking a position on one issue can affect our advocacy in other areas and create particular challenges for staff members engaged in that advocacy. For example, a decision by the ACLU to represent a white supremacist group may well undermine relationships with allies or coalition partners, create distrust with particular communities, necessitate the expenditure of resources to mitigate the impact of those harms, make it more difficult to recruit and retain a diverse staff and board across multiple dimensions, and in some circumstances, directly further an agenda that is antithetical to our mission and values and that may inflict harm on listeners…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….
Where the ACLU defends the right to speak of those with whom it disagrees, it should generally engage in counter-measures both to reinforce the
values the speaker attacks and to make clear that we do not endorse the substance of the views. Some options might include:
1. Denouncing the views in press statements, op-eds, social media, and other available fora.
2. Participating in counter-protests. When we assist people in securing the right to march or demonstrate for views we condemn, we can and generally should support and participate in counter-protests, with consideration given to participation by senior staff or board members to highlight the ACLU’s commitment and ensure that such participation does not disproportionately burden other staff.
3. Supporting other counter-speech by supporting, organizing or helping to organize events, facilitating access to media, or taking other actions that will amplify and
strengthen the voices of those espousing our values.
4. Expanding our work on behalf of the values the speaker attacks.
5. Earmarking any fees recovered from the case to projects within the ACLU that further the values that we support and the speaker attacked, or donating them to another organization that works to advance those values, preferably in the geographical area where the speech occurred….
Wading through the many ‘but ifs” and “on the other hands” that make the memo a masterpiece of equivocation, a careful reader can only come to one fair conclusion: the current ACLU staff and leadership have a crippling conflict of interest, and rather than effectively eliminating it, has chosen to rationalize it. The conflict of interest is that the ACLU is now a full-fledged progressive advocacy organization that views maintaining its ideological allies in the political culture wars a co-equal objective to protecting the rights of all Americans. That means that it cannot be trusted to exercise non-partisan, unbiased judgements regarding whose rights to protect. Worse still, the memo flatly states that the ACLU’s current position is that “there is no presumption that the First Amendment trumps all other amendments.” This is a symbolic canary dying in the poisoned mine shaft, for many of the group’s admitted allies, including the Democratic Party, are increasingly hostile to freedom of speech as an absolute value essential to the vitality and survival of American democracy. Now we know that the ACLU can no longer be counted upon to defend that freedom—it depends, says the memo, on balancing a myriad of factors. No, we don’t balance freedom of speech against other factors, and of course there is a presumption that the First Amendment trumps all other amendments. I am trying to think of any situation where speech alone would violate any other amendment, and so far have failed, suggesting that this statement is laying the foundation for a weakened mission. Here is the presumption: The First Amendment is first, meaning that it was accorded primacy by the Founders, and properly so. And look! Here’s another: the amendment reads,
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
“Shall make no law” is unequivocal. Once upon a time, a non-partisan ACLU acted accordingly.
The fact that the memo was confidential rather than public also signals that the ACLU knows that this is an admission of bias. Kaminer, who was not sent the memo directly but who obtained it from an internal whistle-blower, says that the organization is investigating who leaked it—because, I assume, the ACLU doesn’t want the public to know that it is now taking sides. She writes in the Wall Street Journal (quoted by Reason),
The speech-case guidelines reflect a demotion of free speech in the ACLU’s hierarchy of values. Their vague references to the “serious harm” to “marginalized” people occasioned by speech can easily include the presumed psychological effects of racist or otherwise hateful speech, which is constitutionally protected but contrary to ACLU values. Faced with perceived conflicts between freedom of speech and “progress toward equality,” the ACLU is likely to choose equality. If the Supreme Court adopted the ACLU’s balancing test, it would greatly expand government power to restrict speech.
In Brandenburg v. Ohio (1969), for example, the ACLU defended the First Amendment rights of a Ku Klux Klan leader prosecuted for addressing a small rally and calling for “revengence” against blacks and Jews. The U.S. Supreme Court reversed Clarence Brandenburg’s conviction, narrowly defining incitement to violence as speech both intended and likely to cause imminent illegal action. Brandenburg made an essential distinction between advocacy and action, which progressives who equate hate speech with actual discrimination or violence seek to erase.
The ACLU would be hard pressed to take Brandenburg’s case today, given its new guidelines. The organization hasn’t yet endorsed a ban on hate speech, or a broader definition of incitement. The guidelines affirm that “speakers have a right to advocate violence.” But even if Brandenburg managed to pass the new balancing test for speech cases, some participants at his rally were armed, and, according to the guidelines, “the ACLU generally will not represent protesters who seek to march while armed.”
Reason’s Robby Souve adds,
“The ACLU’s capitulation to the anti-speech left should serve as a wake up call for true liberals. What has taken place on campus over the last decade does matter, and though the scope of the problem is frequently overstated, we should all be concerned when the nation’s premiere civil liberties organization is increasingly afraid of defending the First Amendment—not because the Trump administration scares them, but because college students do.”
Souve’s emphasis on colleges points the way to an organization than can and should pick up the banner of free speech that the ACLU has intentionally dropped in the dust. That organization is The FIRE, the Foundation for Individual Rights in Education. It has already taken over the cause of speech suppression on campus while the ACLU has largely ducked the issue, and I’m sure it could be persuaded to expand its mission if provided with the millions in contributions that the ACLU currently receives from genuine supporters of free speech, whatever its content and whoever the speaker.
America must have a dedicated defender of the First Amendment and the Bill of Rights that will not weigh what opinions are worthy of protecting. Now that the ACLU has made it clear that it doesn’t want the job, we had better find another one fast.