FAN 49 (First Amendment News) ACLU “2015 Workplan” sets out narrow range of First Amendment Activities

When the ACLU was founded in 1920, its focus was on freedom of speech. — Wikipedia 

His expansive reading of civil liberties was arguably [Roger] Baldwin’s greatest contribution to American thought and practice.  It helped to redefine American liberalism and democracy and was propounded in the very period when others subscribed to a much narrower interpretation of First Amendment rights. — Robert Cottrell, Roger Nash Baldwin & the American Civil Liberties Union (2000)


A few weeks ago I received the ACLU’s “2015 Workplan: An Urgent Plan to Protect our Rights.” The eight-page, single-spaced document was accompanied two-page letter from ACLU Executive Director Anthony Romero and a contribution form. The Workplan began: “At the beginning of each year, ACLU attorneys and advocates construct a Workplan outlining the major civil liberties battles we are facing. I am proud to share this year’s plan with you.” In that regard he added: “Your passion, energy and financial support are crucial to our ability to meet the challenges ahead and change the lives of millions whose civil liberties are in jeopardy.”

Walter Nelles was the co-founder and first chief legal counsel of the National Civil Liberties Bureau and its successor, the American Civil Liberties Union. He was an ardent defender of free speech rights. His First Amendment cases included Gitlow v. New York (1925) and Whitney v. California (1927).

Anthony Romero

Anthony Romero

As an ACLU supporter and one who has had the honor of writing several ACLU briefs over the years, I read the 2015 Workplan with great interest. As I read the eight-page document I was surprised to find nothing more than a passing reference to the First Amendment — a mainstay of the ACLU since its founding. There was no highlighted listing of free speech rights in the categories of activities to be protected. The following categories and subcategories were listed in the 2015 Workplan:

1.) Reproductive rights
2.) Discrimination Against Women (Hobby Lobby)
3.)  Anti-Choice Legislation
4.) Freedom to Marry
5.) Privacy & Due Process Rights re Technology
6.) Government Surveillance (4th Amend., Clapper v. Amnesty)*
7.) Third Party Doctrine (expectation of privacy)
8.)  Cell Phone Privacy & GPS Tracking (US v. Jones)
9.) Voter IDs
10.) Police Misconduct
11.)  Mass Incarceration
Harriet Pilpel (1911-1991), Nanette Dembitz (1913-1989), and Nancy F. Wechsler (1916-2009) — Among others places, you will find their names on the cover of the ACLU amicus brief filed in the Supreme Court on September 9, 1963 in New York Times, Co. v. Sullivan.
* The only reference to free speech freedoms came in connection with government surveillance: “[T]he bulk collection of American’s call records . . . [is] an infringement of the twin First Amendment liberties of free association and free expression.” (emphasis added)
Brandenburg v. Ohio (1969) — ACLU lawyer Allen Brown argued the cause for appellant. With him on the briefs were ACLU lawyers Norman Dorsen, Melvin L. Wulf, Eleanor Holmes Norton, and Bernard A. Berkman.

On February 2, 2015 I sent an e-mail to Mr. Romero. I expressed my concerns re the virtual absence of any real and comprehensive commitment to securing First Amendment free expression rights in any variety of areas beyond the one stated. I just heard back from his office this past Monday, this after having sent a follow-up e-mail earlier that day. I was informed that Mr. Romero “intends to respond.”

Liberty in America is better off because of Al Bendich (1929-2015) and what he did as a lawyer for the American Civil Liberties Union. He gave free speech life to poetry and lawful voice to comedy . . . and more. (January 7, 2015)

I welcome Mr. Romero’s response, if only to explain why protecting our First Amendment freedoms did not receive greater and more expanded attention in the national ACLU’s 2015 Workplan, the one sent out for fundraising purposes. I will post his response once it arrives.

Update: See Howard Wasserman, “Declaring Victory?, PrawfsBlawg, Fe. 26, 2015.

Invitation to Anthony Romero re a Q&A on the First Amendment 

Beyond his response, I extend a cordial invitation to Anthony Romero to do Question & Answer segment with me — much like the ones I have done with everyone from Professor Laurence Tribe to Judge Richard Posner — related to the ACLU and its views on protecting free expression rights under the First Amendment. I am sure our readers would have great interest in hearing from him. 



Review Granted

  1. Elonis v. United States (argued on 12-1-14)
  2. Williams-Yulee v. The Florida Bar (argued 1-20-15)
  3. Reed v. Town of Gilbert (argued on 1-12-15)
  4. Walker v. Texas Division, Sons of Confederate Veterans (license plate case) (to be argued 3-23-15)

Pending Petitions

  1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
  2. Thayer v. City of Worcester
  3. The Bronx Household of Faith v. Board of Education of the City of New York (see Becket Fund amicus brief of Michael McConnell)
  4. Dariano v. Morgan Hill Unified School District (re Mary Beth Tinker amicus brief)
  5. Friedrichs v. California Teachers Association, et al.
  6. on 8 v. Bowen
  7. Apel v. United States (Erwin Chemerinsky, counsel of record)

Review Denied

  1. Kagan v. City of New Orleans
  2. Clayton v. Niska
  3. Pregnancy Care Center of New York v. City of New York 
  4. City of Indianapolis, Indiana v. Annex Books, Inc.
  5. Ashley Furniture Industries, Inc. v. United States 
  6. Mehanna v. United States
  7. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  8. Vermont Right to Life Committee, et al v. Sorrell

Forthcoming Books

  1. Jermey Geltzer, Dirty Words and Filthy Pictures: Film and the First Amendment (University of Texas Press, Dec, 15, 2015)
  2. Gavin Millar & Andrew Scott, Newsgathering: Law, Regulation and the Public Interest (Oxford University Press, Oct. 7, 2015)
  3. Alan Haworth, Free Speech (All That Matters) (John Murray Learning, Aug, 27, 2015)
  4. John Stuart Mill, On Liberty, Utilitarianism and Other Essays, Mark Philip, editor (Oxford University Press, 2nd ed., July 9, 2015)
  5. David Lyon, Surveillance After Snowden (Polity Press, June 1, 2015)
  6. Jan Oster, Media Freedom as a Fundamental Right (Cambridge University Press, May 31, 2015)
  7. Genevieve Lester, When Should State Secrets Stay Secret?: Accountability, Democratic Governance, and Intelligence (Cambridge University Press, May 31, 2015)
  8.  Tarlach McGonagle & Yvonne Donders, The United Nations and Freedom of Expression and Information: Critical Perspectives (Cambridge University Press, April 30, 2015)
  9. Charles Slack, Liberty’s First Crisis: Adams, Jefferson, and the Misfits Who Saved Free Speech (Atlantic Monthly Press, March 3, 2015)
  10. Lynn Comella & Shira Tarrant, New Views on Pornography: Sexuality, Politics, and the Law (Praeger, Feb. 28, 2015)

New Scholarly Articles

  1. Sarah Raaii, “A Penny for Your Votes: Eliminating Corporate Contribution Bans and Promoting Disclosure After Citizens United ,” Iowa Law Review (2015)
  2. David M. Shapiro, “Lenient in Theory, Dumb in Fact: Prison, Speech, and Scrutiny,” SSRN (Feb. 20, 2015)
  3. Cass R. Sunstein, “Fifty Shades of Manipulation,” SSRN (Feb. 18, 2015)
  4. Howard M. Wasserman, “Holmes and Brennan,” SSRN (Feb. 17, 2015)
  5. David Mangan, “A Platform for Discipline: Social Media Speech and the Workplace,” SSRN (Feb. 4, 2015)

News & Op-eds 

  1. Jon Healey, “Federal judge SLAPPs down Pandora’s 1st Amendment defense,” Los Angeles Times, Feb. 24, 2015
  2. Matthew Barakat, “Redskins: Canceling trademark violates free-speech rights,Fox Sports, Feb. 24, 2015
  3. Catherine Sevcenko, “It’s time to restore the First Amendment to UA,” The Crimson White, Feb. 24, 2015
  4. Greg Corombos, “Obama power grab triggers 1st Amendment nightmare,” WND, Feb. 24, 2015
  5. in McGill, “Supreme Court rejects 1st Amendment appeal from New Orleans tour guides,” The Daily Recorder, Feb. 23, 2015
  6. Mark J. Fitzgibbons, “Court enjoins California AG Kamala Harris on First Amendment grounds,” American Thinker, Feb. 23, 2015
  7. David Grahm, “The Greatest Enemy of Press Freedom in a Generation,” The Atlantic, Feb. 21, 2015
  8. Wendy Kaminer, “The progressive ideas behind the lack of free speech on campus,” Washington Post, Feb. 20, 2015
  9. Ken Paulson, “Picture Freedom supports the First Amendment,” The Tennessean, Feb. 17, 2015
  10. Ethan Indigio Smith, “The First Amendment is The Real Patriot Act,” Mint Press News, Jan. 28, 2015

Last Scheduled FAN Column — #48: “The Dangers and Values of Offensive Speech

Next Scheduled FAN Column –– #50: Wednesday, March 3, 2015

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1 Response

  1. Brett Bellmore says:

    Unfortunately, it’s my impression that, after the beating the ACLU has been getting over it’s defense of freedom of speech in the context of campaign ‘reform’, the decision has been made to largely retire from the field, except where a defense of freedom of speech is in the institutional interests of the Democratic party.

    Just one of the consequences of a civil liberties organization hitching it’s cart to one end of the political spectrum, and driving off anybody who likes civil liberties, but who isn’t a liberal Democrat. Rather like the ACLU’s absurd excuses for it’s complete abdication where the 2nd amendment is concerned. Don’t dare annoy the leftist donors.