After Michael Powell’s scathing NYT article about the American Civil Liberties Union’s abandonment of its mission in favor of social justice, the knives came out. I’ve chronicled it for the past few years here, Much of the defense of the ACLU’s failing was disingenuous, arguing that it hadn’t abandoned its mission, a position that was typical of argumentation in a factless age of strenuous denial of reality coupled with the nodding agreement of the chorus.
But there were some letters to the editor at the Times that weren’t the typical squishy reimaginings and sophist rationalizations. My old pal Ron Kuby, as lefty as they get, called it out.
To the Editor:
For close to four decades, I have represented the despised, dissident and demented in state and federal criminal courts around the country. I set my own criteria for the cases I accept — everyone is entitled to a defense lawyer, but no one is entitled to me. I have chosen not to work for fascists and white supremacists. But like much of the unpleasant work that I refuse to do, it still needs to be done, and someone needs to do it.
Historically, that has been the A.C.L.U. Lawyers and staff members at the A.C.L.U. who find themselves at odds with the organization’s core mission — defense of all civil liberties for all people — should align themselves with other individuals or groups with whom they are in solidarity. There is enough injustice for all of us to fight.
Ronald L. Kuby
It’s not that he’s unsympathetic to the emotional conflicts of the new and improved woke ACLU, but that if they don’t care for its mission of defending constitutional rights for all, what are they doing there? Why is the ACLU changing its mission rather than telling them that while they appreciate their concerns, there are other advocacy groups better suited to sympathies of denying civil rights to speakers and ideas they find unacceptable.
Historically, that has been the A.C.L.U.
The point isn’t that the concerns of the woke are wrong, but they are not the concerns for which the ACLU existed, historically at least. Now it doesn’t. Following Ronny’s letter is one from a former staff attorney at the New York ACLU affiliate, Alan Levine. Unlike most of those trying to deny the obvious, Levine embraces the shift and offers a cogent explanation in support of it.
To the Editor:
As a former staff lawyer for the New York Civil Liberties Union who, as a civil rights lawyer since then, has concentrated on First Amendment cases, I do not take threats to free speech lightly. But restrictions on speech raise issues that are more complicated than your article implies.
Yes, hate speech is generally protected by the Constitution, but so is equality, and hate speech can often make a mockery of equal rights. What the critics call an abandonment of A.C.L.U.’s principles reflects, in fact, a growing awareness of many within the A.C.L.U. that speech and equality are sometimes in conflict, and that context matters.
The point is illustrated by the recent controversy over attempts by college students to block Ann Coulter, Milo Yiannopolis and Charles Murray from speaking on their campuses. While the administrators who ran the college bemoaned threats to academic freedom, and liberal critics charged the students with censorship of views they didn’t like, the students recognized what it meant to vulnerable students — whose lives on predominantly white, elite campuses were often a daily struggle — to be targeted by such unrestrained bigotry. They understood as well that even in a place devoted to the free exchange of ideas, little was lost by not hearing Ann Coulter once again say of Muslims, “We should invade their countries, kill their leaders and convert them to Christianity.”
What students and, now, many within the A.C.L.U. have recognized is that, whether or not speech is protected by the First Amendment, there are some times and some places where it should not be heard.
This presents the conflict directly, the First Amendment’s promise of Free Speech as opposed to the Fourteenth Amendment’s promise of Equal Protection, from whence the belief of there being a constitutional right to equality derives. In contrast to those who want to pretend otherwise, Levine isn’t ashamed to recognize the conflict, or to explain why, when speech has the potential to hurt some people’s feelings, the ACLU position is to stand on the side of silencing speech: “There are some times and some places where it should not be heard.”
Levine’s argument in defense of the ACLU’s abandonment of Free Speech raises significant questions. Is equality the equivalent of the express right of Free Speech? Is it a right at all? Is he talking about equal opportunity or equal outcome? Does the claimed pain felt, or at least claimed to be felt, by students who don’t have to hear anything they don’t want to hear, make a “mockery” of equal rights? Do rights change when someone claims “context matters” and speech they find valueless and hurtful deserves to be censored?
But this is where Ronny’s point comes into play. Whether or not you agree with the explanation proffered by Levine, that was never the mission of the ACLU. There is no shortage of activist interest groups fighting one demon or another, and often each other as hegemony is often a zero-sum game. Even if you find Levine’s argument unpersuasive, if not downright wrong, he’s entitled to believe in it and pursue his goals. That’s because we have Free Speech and expression, the free exchange of ideas whether we like them or not. So go, do it, do what you must for the cause in which you believe.
That cause, however, was not the ACLU’s mission. At least historically. And now there is no ACLU to stand up, even for the fascists and white supremacists, because no one needs a defense of free speech for the words that make college students feel warm and fuzxy.
Don’t be hard on Levine because you disagree with his rationalization. At least he had the gumption to be forthright in saying what so many others falsely deny or try desperately to wiggle around. We are allowed to believe in different things, to express disagreeable views. That’s what free speech protects, and to his enormous credit, Levine gave an honest defense of the ACLU’s new position, even if it’s a shame to see it gone.