Leaked ACLU Rules of Engagement

That the name, American Civil Liberties Union, remains is merely a branding ploy for the new grassroots advocacy organization focused on the progressive side of populism. In fairness, it’s not as if they tried to hide their turn to People Power, having been quite open about it in the hope of enticing support and money from its new base.

But while the shift happens, what of their litigation wing? Now flush with cash since the election of Trump and the buckets of money donated after his Muslim Ban, they’re taking cases, many of which are consistent with civil liberties, serve the goals traditionally attributed to the ACLU and, frankly, doing a fine job of it?

Somebody leaked an internal memo to former ACLU board member Wendy Kaminer, ironically marked at the top, in all caps, “CONFIDENTIAL ATTORNEY WORK PRODUCT,” which reveals their new perspective on litigation.

The American Civil Liberties Union has explicitly endorsed the view that free speech can harm “marginalized” groups by undermining their civil rights. “Speech that denigrates such groups can inflict serious harms and is intended to and often will impede progress toward equality,” the ACLU declares in new guidelines governing case selection and “Conflicts Between Competing Values or Priorities.”

This is presented as an explanation rather than a change of policy, and free-speech advocates know the ACLU has already lost its zeal for vigorously defending the speech it hates. ACLU leaders previously avoided acknowledging that retreat, however, in the apparent hope of preserving its reputation as the nation’s premier champion of the First Amendment.

There are, and always have been, problematic conflicts between rights embodied in the Constitution. It doesn’t happen in every case, but it happens. As unenumerated rights are elevated, at least in some folks’ minds, to fundamental rights, and as the reach of government extends into private business conduct and individual relationships, the potential for conflicts expands exponentially.

For the unduly passionate, who believe they have a right to whatever it is they favor (for example personal privacy, health care, non-discrimination by individuals) that should be enforced by, or provided for, by the government, the old-school enumerated rights, such as free speech or free exercise aren’t just tarnished in comparison to their shiny new desires, but roadblocks on the path to Nirvana.

This puts the ACLU in the unpleasant position of having to weigh the value of pursuing actual rights, like free speech or, god forbid, the right to keep and bear arms, with the vaguer values preferred by their donors. And so a committee, under National Legal Director David Cole, came up with a cheat sheet for deciding how to address conflicts.

The 2018 guidelines claim that “the ACLU is committed to defending speech rights without regard to whether the views expressed are consistent with or opposed to the ACLU’s core values, priorities and goals.” But directly contradicting that assertion, they also cite as a reason to decline taking a free-speech case “the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values.”

In selecting speech cases to defend, the ACLU will now balance the “impact of the proposed speech and the impact of its suppression.” Factors like the potential effect of the speech on “marginalized communities” and even on “the ACLU’s credibility” could militate against taking a case. Fundraising and communications officials helped formulate the new guidelines.

For its supporters, the new rules contain enough rhetoric about free speech to pretend it’s still in the game, and in fairness, the ACLU is still in the free speech arena provided the case is clean enough that it doesn’t involve dirty litigants or cause pain to the “marginalized,” which may mean minorities or may mean social justice donors whose outrage at the perception of harm forces an involuntary reaction in their pocketbook-closing hand.

The good news is that the ACLU will still take on cases, on occasion, when they’re certain they can win and when the cost/benefit analysis is in their favor for the allocation of scarce resources that now have tons of zeroes behind them. Their supporters will be able to point to these good works, the odd free speech case, the defense of the unnamed American in secret custody abroad, and proclaim that the ACLU is not only still alive, but every bit as virtuous as ever.

This isn’t to suggest that the ACLU won’t, or doesn’t, take on worthy causes and do some excellent work. They do. But would they do another Skokie today?

But traditional free-speech values do not appeal to the ACLU’s increasingly partisan progressive constituency—especially after the 2017 white-supremacist rally in Charlottesville. The Virginia ACLU affiliate rightly represented the rally’s organizers when the city attempted to deny them a permit to assemble. Responding to intense post-Charlottesville criticism, last year the ACLU reconsidered its obligation to represent white-supremacist protesters.

It’s no longer a matter of conjecture. The leaked memo makes their position in such conflicts patent:

The impact of the proposed speech and the impact of its suppression: 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.

When the question is free speech or “the potential effect on marginalized communities,” speech loses. It’s now official.

22 thoughts on “Leaked ACLU Rules of Engagement

  1. Charles

    ”Our fundamental civil rights often depend on defending some scuzzball you don’t like,” Mr. Glasser said. ”I do not for one minute believe that what the Nazis and Ku Klux Klan say deserves protection because it contributes to some grand marketplace of ideas. But I do believe it’s of fundamental importance to stop towns from writing ordinances banning offensive speech, because while today it might be the Nazis that are considered offensive, tomorrow it might be what I have to say, or what you have to say.”

    – Ira Glasser, Former ACLU Executive Director (N.Y. Times, Oct. 1988)

    [Ed. Note: Link deleted because rules.]

      1. LocoYokel

        ‘Bout time to hit the reset button again and start over.

        Country’s going to hell in a hand-basket but I still don’t know of any place better and that makes me very sad.

          1. LocoYokel

            I dunno, if I were that close I would just as soon be on the coast. But that still leaves the civil liberties issue, which France (and Europe in general) is still not as good as the US, bad as we may be getting. And you can still disappear into the hills here and live off grid if you know where to go .

          2. Grum

            Me too, smashing place.
            They have a barber called “The Best Fucking Cut Shop” and a cafe called “Cafe Fanny”
            What more could you ask?

  2. PseudonymousKid

    Dear Papa,

    At least there’s no question and all hope of a return to days of yore are gone now if there was any left at all. Civil Liberties for some, not all are not civil liberties at all. People are firmly entrenched in camps and can’t realize that they are divided and ripe for conquest. And so we have wage slaves who enrich our modern-day-kings more than they do themselves or everyone else.

    The current head of the ACLU might desperately want a kingdom, but worries he’ll be just another tin-pot dictator, so why not encourage hatred of white supremacists even if the core mission then is no longer civil liberties at all. Fear of the other brings in the big bucks.


    1. Fubar

      Unpopular speech, don’t you know,
      Like everything else, eats cash flow.
      They can’t fight the good fights
      With a few Widow’s Mites,
      They need big bucks to make it all go!

  3. Kathryn Kase

    There is no small irony in the ACLU’s apparent decision to be less than absolute in seeking to uphold free speech. Had the ACLU applied this guideline to its equal protection litigation in the 1970’s, who knows how long gender equality would have been in coming.

    For those who don’t follow the notorious RBG, she worked as an ACLU lawyer and strategized on behalf of Curtis Craig, who sued over an Oklahoma beer-sale rule that discriminated based on sex. (The rule allowed women to buy 3.2 beer at age 18, while men had to wait until age 21.) Craig v. Boren, 429 U.S. 190 (1976), resulted in the Supreme Court deciding for the first time that statutory and administrative classifications based on sex were subject to intermediate scrutiny under the Equal Protection Clause of the Constitution. This decision has, in turn, led to a host of decisions striking down as unconstitutional laws that discriminated against women in contracting, inheritance, marital property and other rights.

    (Which is a long way of saying what Bill of Rights warriors have long known: sometimes the best way of clarifying those rights is with an “unusual suspect” as the plaintiff.

    Any word on what other rights in the Bill the ACLU plan to apply this new guideline?

    1. PseudonymousKid

      But you’re neglecting that a MAN had to make the first blow for women’s rights. That obviously shows systemic racism that will only ever be addressed by total revolution of the way things are. That’s why you can’t just use hate terms like “she” or “he” anymore. This is what progress looks and feels like. Stop thinking broadly and focus more on the victims. Aren’t millennia of abuse enough?

    2. REvers

      That case was horrible. It took away one of the best pick-up lines ever. “Hey, baby, I’ll pay for the beer if you’ll help me drink it.” You then sent her in to buy the beer because she was old enough. See, the Oklahoma legislature raised the age for women to 21 instead of lowering the age for males.

      That still pisses me off, forty years later.

  4. Nemo

    Would the ACLU fight for my right to quote the adage “First they came for…”, or is that now speech that oppresses the marginalized? Or is it a matter of context and application, whereby one can quote the original, but cannot suggest or imply that the minorities therein were anything less than beloved at the time?

    It’s already obvious that straight substitution of hated minorities of the present for the beloved minorities of the past is right out in the ACLU’s book, after all. They’re nice, though, since they won’t go after the hated themselves, they will just stand aside while others do their dirty work for them. Yay, ACLU.



    But at least they’ll take on the odd token case, as camouflage, if nothing else.

      1. LocoYokel

        ME! Be offensive for Pete’s sake (but never for Patty’s). Any fool can go through life without offending people, well maybe not anymore – except by never leaving the house. But it takes real talent to offend creatively, and a man is best judged by the enemies he makes.

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