Friends, Principles and Honesty

Wendy Kaminer’s WSJ op-ed caused a bit of a ruckus among her former ACLU friends. It wasn’t exactly new information, that the ACLU’s stance on Free Speech was now in turmoil, the association trying to thread the needle between its defense of the First Amendment and its politics. In ways subtle and flagrant, it’s been clear for years now that the ACLU struggles with its civil liberties mission and its social justice ideology.

After Kaminer’s disclosure of an internal memo, the ACLU legal director, David Cole, responded:

We developed the case selection guidelines mentioned by Kaminer to address the conflicts between the many cases we consider, such as between privacy and women’s rights, gay rights and religious freedom, and speech and equality.  To be clear, the guidelines do not dictate how and when we take cases, nor do they change our policy of representing those whose views we detest.  They expressly reaffirm 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 in appropriate circumstances to prevent unlawful government censorship of speech.

In a remarkable display of studious avoidance, Cole glosses over the issue, the one and only issue, on the table. They are all for free speech, except when it conflicts with social justice causes, in which case they aren’t for free speech.

Former Executive Director, Ira Glasser, was having none of it.

In other words, the ACLU now advises all its affiliates to consider the content of speech, and whether it advances our goals, before deciding whether to defend the right to speak.

That is a balance never before recognized by the ACLU as legitimate in deciding whether to take a free speech case.  To deny that this departure from free speech policy is a departure is intellectually dishonest, an Orwellian smokescreen thrown up to obscure what they are doing.

Nadine Strossen, former president of the ACLU and, despite her dedication to the First Amendment, a self-acknowledged supporter of social justice, replied:

Only the National Board may change policy, and it was consoling to me that the Board didn’t even consider doing so despite the post-Charlotte blowback. . . . The Board is extremely jealous of its policy prerogatives and would never let the staff get away with in effect modifying policy through the stratagem of implementation guidelines.

That may be technically so, but apparently nobody told ACLU Executive Director Tony Romero, who announced that it would no longer support the free speech of white supremacists who wanted to protest carrying guns. The Board neglected to fire Romero for it.

Perhaps realizing that her response bore essentially no relation to the issue, Strossen took another shot at a reply.

The guidelines lay out more than a dozen such factors.  The one that has drawn criticism is the potential harmful impact of the speech at issue.  But acknowledging this incontrovertible fact is NOT AT ALL to say that such harm would warrant the ACLU not taking the case.  To the contrary, the guidelines expressly reaffirm that the ACLU will nonetheless do so.  However, that consideration might well influence HOW the ACLU handles the case.

Strossen’s peculiar use of ALL CAPS for emphasis notwithstanding, my surmise is that she’s channeling Rodney King, trying to trivialize the flagrant paradigm shift from constitutional rights to social justice behind the “incontrovertible fact” rhetoric that’s neither fact nor incontrovertible.

And thus, we come to the very deeply buried lede, that these four voices aren’t those of enemies, of adversaries, but of friends, all long dedicated to the ACLU and its service to the Constitution. But now that the ACLU’s position, that harmful impact of free speech trumps free speech, has changed, each of these four friends has a choice to make: Do they place dedication to the organization, to each other, to the cause, ahead of intellectual honesty?

This has become an increasingly problematic question. It’s not merely that people who agree with each other for the most part can argue about the details, the nuances of their respective views of a larger position to which they  all remain dedicated. As Ira Glasser puts it, this is intellectual dishonesty. That’s not just a nuanced disagreement.

This has become a pervasive problem, even among those of us seeking criminal law reform. The social justice wing of reformers has gained a significant following. Think Shaun King, the poster boy for reach exceeding grasp, whose simplistic and dishonest assertions are beloved by the groundlings. A few public defenders, academics and their camp followers are part of this crowd as well, occasionally spewing heart-wrenching claims of injustice of highly dubious truth.

They proffer arguments that are well received if irrational, like legalization of marijuana because police disproportionately target blacks. This is true, but the solution is to stop targeting blacks. The argument in favor of marijuana legalization must be based on the propriety of legalizing marijuana, not collateral police impropriety.

So what does an honest person do? Do we back up our “friends,” knowing them to be telling lies to rally their fans, raising illogical and false arguments, making people stupider for a worthy cause? Do we bite our tongues, shake our heads and let it go quietly? Do we try to smooth it over, as if irreconcilable arguments will shine with a little gloss?

In the olden days of the blawgosphere, we could argue vociferously over nuance and still be friends. That’s not the case these days, where any question, no less a challenge to facial lies, is taken as a blood feud. The only person despised more than an adversary is someone who ought to be an ally calling bullshit on, well, bullshit. The greater the passion, the deeper the fury at the failure to support the goals no matter what.

Social media has long fostered a cult of positivity, where allies say nice things about each other, extol their virtues, support their assertions, even when they’re wrong, false or stupid. The rift within the ACLU is an example of people who were friends, who were dedicated to a cause, have been forced to choose friendship or principle. We used to be able to have both. Those days are gone.

8 thoughts on “Friends, Principles and Honesty

  1. Dan

    “to address the conflicts between the many cases we consider, such as between privacy and women’s rights, gay rights and religious freedom, and speech and equality.”

    In each of these cases, one of the rights described has a constitutional basis, while the other doesn’t. This should not be a hard call if you claim to be a civil liberties organization.

  2. Jeffrey Gamso

    “The argument in favor of marijuana legalization must be based on the propriety of legalizing marijuana, not collateral police impropriety.”

    It must? How about, “the most logically coherent argument in favor of . . . .”

    I used to get into raging on-line fights with death penalty abolitionists about the permissible arguments. My view (I quoted Mao) was to let a hundred flowers bloom. The argument to use, I said, was the one that had the best chance of moving the particular audience I was addressing. Ditto marijuana legalization.

    I get the risk of letting ends justify means, but that’s a slippery slope sometimes worth stepping on.

    1. Ray Lee

      Is there not a difference between arguments made in litigation and arguments made to the public (or members of a given group) ? It strikes me that you are undoubtedly correct as to arguments made in litigation, where the client’s interest override all other concerns. It strikes me that you are incorrect as to arguments made to the public (or members of a group) as to policy. In the later case, the existence of intellectual honesty and the application of principle without regard to its affect on the short term outcome of a dispute at hand, is to my mind the more important.

    2. norahc

      “I get the risk of letting ends justify means, but that’s a slippery slope sometimes worth stepping on.”

      Once the slippery slope is stepped on, inevitably somebody will take it one step further and cannonball down it. Just look at our current SJW society for examples.

      1. SHG Post author

        Deliberately making false and irrational arguments knowing that they will persuade a certain ignorant cohort? What could possibly go wrong?

    3. SHG Post author

      In a smaller group or bubble, a irrational argument may persuade provided there’s no one around to point out its flaw. On issues of crim law reform, always controversial and always challenged, it’s unlikely to persuade and far more likely to make your “side” look ignorant and incredible.

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