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.