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.
Ethics Alarms 
Yeah, FIRE has a narrower focus that the ACLU has forgotten. They forget when they were in minorities. At some point, every group has been in a disliked and distrusted position. The wheel keeps turning, and you will reap what you sow. (harder to resist cliches at this hour) I wish I could support FIRE more…
Must admit I have, since reading National Review as a teenager in a Leftist household, on balance, felt the ACLU to be a Leftist tool. This confirms my original bias. Now I have more objective reasons, beyond weighting of overall cases taken, to believe this is so.
To your point, we need legit civil libertarians protecting Constitutional rights against all comers left and right. The ACLU has more officially become what I believed them to be…Leftist tools.
The CLU seems to be arguing that we need to give uop our rights for the sake of “marginalized communities”.
this does beg some questions.
Is the ACLU implying that these so-called marginalized communities are a threat to our freedom?
Must we get rid of these communities to preserve our freedom?
I don’t think the argument is the communities are a threat to our freedom; it is our society that is a threat to theirs.
Though I do understand your logic and the resulting destruction of freedoms of most in favor of some.
Now we can argue about what freedom means, if there are gradations of it, and what is a real threat to it.
There have always been less than mainstream communities in every country. In this country the drive to make the mainstream communities accept the values of those less than mainstream is where the ACLU lands on the side of offending or diminishing mainstream society values and rights to force accommodation of those who are not in the main.
The conclusion may be codifying the mainstream, should they speak or act out on their values and rights, as criminals. This sounds a lot like a strategy many of us have mentioned here.
Freedoms are defined as the ability to exercise your rights but one’s rights end at the tip of one’s nose. This mean people should be afforded the ability to say and do anything they please provided it does not impose an undesired objective cost on another. That is what I was taught growing up. The problem now is that many impute a subjective cost. Speech cannot impose a cost because one always has the right to offer a countervailing POV or walk away. This is not a perfect method as someone will always find a scenario that fits their argument. However subjective valuations of imputed costs must be washed out because both sides can artificially inflate the subjective cost. Thus, the cost of hurt feelings of one side must be tempered against an equivalent subjective cost of a denied right.
But we already knew they were abandoning their mission.
It seems the life cycle of organizations:
1) See a problem
2) Address the problem vigorously to bring the problem into conformity with American values
3) Gain popularity and momentum as good is being done.
4) Be taken over by Leftists
5) Only support the progressive agenda in opposition to American values while paying lip service to American values.
I mean, eventually FIRE, in 30 or 40 years will probably suffer the same fate.
Which, one hopes, would require a new “ACLU” to fill the vaccuum. Rights require absolutist advocates with integrity, credibility, influence, resources and skill, or they will be nibbled away.
Should we live that long… On cynical days, I don’t think America will survive that long as she was founded. Not without a horrific ‘reste’ event.
So to protect those supposed marginalized groups that have legislatively codifed protections it decides to marginalize the thoughts and ideas of the unprotected. Where is the logic or integrity of purpose.
I Disapprove of What You Say, But I Will Defend to the Death Your Right to Say It. – Voltaire (but sometimes attributed to his later translator Evelyn Beatrice Hall) should be the stand point ,That is used to explain and the only one in defense of the first amendment! Hell I don’t always agree with people I respect, but there freedom of speech let’s me see where they are and when they are idiots.
..and, on many occasions since joining EA, the opposite has been true: other opinions and viewpoints allow me to see when I am an idiot, too.
This is why I lament the loss of earnest Liberals here: they allow a peek into their worldview, and reveal problems with mine.
Hey we all need to learn, I use to not understand the trans movement at all, and slowly came around as I got to know some individuals, that represent themselves and the movement well. I have become an advocate for lgbtq (though I still hate that the movement appropriated queer asthat was the term my family tortured and harassed me with) and the autistic communities as, I am unfortunately better prepared to represent these communities the some of my brethren. But insightful as always slick.
Saw the writing on the wall 10 years ago w/ the ACLU which I used to support financially. Basically the ACLU now uses the excuse that supposed “vulnerable” minorities can’t handle different opinions regardless of how offensive they are because…you know…trauma. How infantilizing & utterly patronizing! This mindset isn’t about restoring equality, it’s about deciding for minorities (and everyone else) how they should think and feel about free speech. I can’t think of anything more supremacist than that.
It’s obvious their upper management’s main goal is to stay on the current right side of angels while still collecting their paychecks. I would absolutely support a worthy ACLU replacement. We need it now!
Thanks…I forgot to mention that the memo only verified what should have been apparent a long time ago.
How infantilizing & utterly patronizing! This mindset isn’t about restoring equality, it’s about deciding for minorities (and everyone else) how they should think and feel about free speech. I can’t think of anything more supremacist than that.
Good aim with the logic hammer, Mrs. Q. How about this for a short, sharp shock of a COTD, Jack?
You get extra credit for the Gilbert and Sullivan quote!
I ran across a rather apt comment (especially the second sentence) in a blog from a few months back:
“…the American Civil Liberties Union no longer knows what are the civil liberties it purports to defend. Identity Politics has transformed civil rights into privileges for victim groups.”
(source: https://www.paulcraigroberts.org/2018/02/23/aclu-longer-defend-civil-liberty/ )
Of course, the attitude revealed in the memo is no surprise; it has been apparent for quite some time that (leftist) ideology has trumped the defense of Constitutional rights in the actions of the ACLU. In a recent example, they made note, about a year ago, I think, that they would no longer “have the resources” to defend Second Amendment issues, and would not even defend First Amendment cases for those who lawfully exercised their 2A protected rights.
If they were true to their supposed calling, they would be as blind as the mythical figure of Justice as to whether an assault on common rights were being made against a group with whom they disagreed on other issues, and would work to defend the principals at stake for the good of all.
That civil libertarian horse left the barn decades ago. It ain’t comin’ back.
The ACLU is not taking the position to support free speech with which it agrees! How brave.
When the marketplace of ideas is restricted to the equivalent of a Venezuelan convenience store, freedom of speech will be irrevocably lost.
Here is a link to the ACLU’s response.
http://reason.com/volokh/2018/06/22/aclus-david-cole-responds-about-aclu-and
And, to my mind, the most telling paragraph of David Cole’s response:
“Nonetheless, it seemed clear to us that guidelines would help ACLU affiliates and national staff in considering cases that might pose conflicts between our values. We are a multi-issue organization, and some cases may present conflicts, such as between gay rights and religious freedom, privacy and women’s rights, or speech rights and equality. The guidelines, which have been distributed to all ACLU staff members, are explicitly designed to help affiliates and national staff think through various factors in case selection decisions.”
“We are a multi-issue organization….”
…and it stating this, you undermine everything else you say in your refutation of Wendy Kaminer’s leaked memo. Nice to know.
–Dwayne
The response failed to explain the conflict between speech rights and equality.
Thanks for the link, Michael. I’ll reread it when I’ve taken it all in. What a crock!
Democracy = Minority Rules