FAN 194.7 (First Amendment News) The public dialogue continues — More from Nadine Strossen on ACLU free speech controversy

The following statement was sent to FAN concerning the ongoing public disuccusion related to the recent ACLU free speech controversy.

The dialogue is also ongoing over at The Volokh Conspiracy blog.

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Statement of Nadine Strossen

Professor Nadine Strossen

I hasten to add that I agree with the Board’s judgment that these guidelines do not in fact alter the ACLU’s longstanding and proud -although always controversial – policy of defending freedom even for “the thought that we hate,” as Justice Holmes put it.    Rather, the guidelines set forth and explain the factors that have always been pertinent to the intake process.

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. Thus, the guidelines address the importance, when taking such cases, of seeking to mitigate the speech’s potential harm through the following means:   retaining the ACLU’s right to speak against the views that it is defending from suppression;  engaging in counter protest when appropriate; consulting with its allies to explain why it is taking the case;  and devoting any attorneys fees earned to the competing civil liberties interests.

In fact, it has been a longstanding ACLU tradition, while defending freedom for anti-civil liberties views, to encourage its supporters to exercise their free speech rights to engage in “counterspeech,” protesting those views.   During my tenure as President, the Board and staff repeatedly discussed such strategic considerations concerning speech with various anti-civil liberties and otherwise noxious messages, while nonetheless defending the right to purvey such messages; for the sake of the ACLU’s effective advocacy and pursuit of its overall mission, it would have been irresponsible not to do so.

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1 Response

  1. Brett Bellmore says:

    The basic problem here is that the guidelines have the ACLU balancing the defense of free speech against other values, some of which are not civil liberties. Nadine herself laid the groundwork for this by her announcement some years ago that the ACLU’s conception of “civil liberties” was “not coextensive” with the Bill of Rights or Constitution.

    Putting all that aside, I don’t want to dwell on constitutional analysis, because our view has never been that civil liberties are necessarily coextensive with constitutional rights. Conversely, I guess the fact that something is mentioned in the Constitution doesn’t necessarily mean that it is a fundamental civil liberty.

    In order to have an excuse for not defending the 2nd amendment, the ACLU cut itself loose from the actual text of the Constitution. Today it defends “civil liberties” in a circular fashion: They are whatever the ACLU decides to defend.

    You cut the anchor chain, the boat drifts. The ACLU would really change it’s name if it meant to be honest. Perhaps the America Whatever We Feel Like Defending Union? AWWFLDU. Ok, rather unwieldy, but more truthful.