FAN 194.6 (First Amendment News) Ira Glasser & Nadine Strossen weigh in on ACLU free speech dispute

The following statements were sent to FAN in response to David Cole’s reply to Wendy Kaminer’s Wall Street Journal op-ed.

The first is by Ira Glasser, who served as executive director of the ACLU from 1978 to 2001.

The second statment is by Professor Nadine Strossen of New York Law School; she served as as president of the ACLU from 1991 to 2008.

The memo that gave rise to the controversy is set out below along with a just published op-ed.

Finally, a more extended reply by Cole to Kaminer’s op-ed was recently posted on The Volokh Conspiracy

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Leaked memo marked “CONFIDENTIAL ATTORNEY WORK PRODUCT”: ACLU Case Selection Guidelines: Conflicts Between Competing Values or Priorities

→ “[T]here is an obvious tension between latter-day progressivism and the full-throated defense of civil liberties.” — Theodore Kupper, The ACLU Abandons Its Free-Speech Absolutism, National Review, June 23, 2018 

→ Eugene Volokh, ACLU’s David Cole Responds About ACLU and the Freedom of Speech Is the ACLU becoming less committed to protecting free speech, especially speech that some view as undermining “progress toward equality”?, The Volokh Conspiracy, June 22, 2018

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Ira Glasser 

I have long admired David Cole, and always benefited from consulting him during my long tenure as head of the ACLU. But his response to Wendy Kaminer’s concerns about certain aspects of the ACLU guidelines for taking free speech cases begs, indeed, ignores, the specific questions she raises about whether the new guidelines represent a dramatic policy departure.  She thinks they do, and, having now read them, so do I.

Ira Glasser

As a stand-alone statement of principle, David Cole’s statement reaffirms longstanding traditional ACLU policy.  But it doesn’t respond to Wendy Kaminer’s op-ed at all, not in any way, and especially not to the language she quoted from the new guidelines about balancing the “extent to which speech may assist in advancing goals contrary to our values” against the right to speak when deciding whether to defend the right to speak.

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.

And that, it seems, is why they tried to hide the new guidelines, even claiming, absurdly, that they were protected by the lawyer-client privilege.  To say now, after the guidelines were disclosed by others, that they have nothing to hide rings hollow.

My question is: where is the ACLU Board, which is supposed to be the guardian of its policies. Did the Board vote to approve this policy departure?
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Nadine Strossen

Professor Nadine Strossen

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.  In contrast, the Board did several years ago reconsider and revise its campaign finance position (to take a less absolutist free speech position), and back in the early 1990s  (when I was on the Board, and in part during my Presidency) it did revisit ACLU’s hate speech position in response to the then-new push for campus hate speech codes.  (Of course, we reaffirmed our traditional policy – unanimously, which is almost unheard of for that fractious and huge body!)  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.

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