FAN 195 (First Amendment News) ACLU Free Speech Controversy — Kaminer Responds to Cole + a History of the Controversy

The controversy involving the national ACLU and its free speech policies continues.  The latest round (there were others, see below) began with a Wall Street Journal op.ed by Wendy Kaminer. Here is what followed:

  1. Ira Glasser & Nadine Strossen weigh in on ACLU free speech dispute, FAN 194.6 (June 23, 2018)
  2. ACLU’s David Cole responds to Wendy Kaminer, FAN 194.5 (June 22, 2018)

** See also Volokh Conspiracy June 25, 2018 & June 22, 2018

Related

  1. Lee Rowland, Free Speech Can Be Messy, but We Need It, Speak Freely (ACLU), March 9, 2018
  2. Trend Continues: ACLU’s 2016 Workplan Omits Mention of Protecting First Amendment Free-Expression Rights — No Longer a Fundraising Concern?, FAN 97 (Feb. 10, 2016)
  3. See also links following the reply below.

Here is the latest installment in the Wendy Kaminer-ACLU controversy.

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Wendy Kaminer

Wendy Kaminer

David Cole denies that the ACLU’s new case selection guidelines represent a change in the organization’s commitment to defending the speech it hates. Really? Read the guidelines and draw your own conclusions. After the Wall Street Journal posted them, the ACLU followed suit.

This is what the guidelines propose:

In deciding whether to take a speech case the ACLU should consider: “the impact of the proposed speech and the impact of its suppression”. Factors militating against taking a case include, “the potential effect on marginalized communities; the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values; and the structural and power inequalities in the community in which the speech will occur.”

These are new criteria governing the selection of speech cases, as Ira Glasser has stressed. The ACLU has not previously advised staff to decline representing speakers when the impact of suppressing their speech is outweighed by its content and the harm it poses to social justice.

The ACLU’s David Cole

Cole avoids acknowledging this change by citing a handful of ACLU cases involving speech antithetical to ACLU values. They prove nothing. The guidelines do not provide (and I did not assert) that the ACLU should or would decline all cases involving speech that conflicts with its equality and social justice agenda. But they do provide that the ACLU will not take some of these cases, based on a new balancing test weighing the impact of censorship – and the impact of declining a case on the ACLU’s “credibility”– against the impact on social justice.

Of course the ACLU will continue representing occasional clients whose speech is anathema to ACLU values, and it will continue pointing to these cases when its commitment to free speech is questioned. But the quiet lessening of that commitment over the past decade or so is evident mainly in cases the ACLU hasn’t taken and controversies it hasn’t entered, as I observed in the Wall Street Journal back in 2007. Perhaps the most striking example of its selective defense of speech was the ACLU’s silence in Harper v Poway, a student speech case involving the right to wear a t-shirt with a religious, anti-gay message, at a time when the ACLU was vigorously defending students’ rights to wear pro-gay t-shirts. Tyler Chase Harper lost his case before the 9thcircuit, while the ACLU remained on the sidelines. (The Supreme Court vacated this clearly wrongheaded decision.)

The guidelines confirm a 21sttrend for the ACLU, and the case selection balancing test they describe refutes Cole’s rhetoric about the organization’s unchanged defense of speech. Similar, general assurances of the ACLU’s commitment to free speech are included in the guidelines. But they’re directly contradicted by a recital of specific factors militating against accepting a speech case. The guidelines assert, “the ACLU is committed to defending speech rights without regard to whether the views expressed are consistent with or opposed to the ACLU’s core values, priorities and goals.” Then, a few pages later, they cite as a reason to decline a speech case “the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values.”

What’s going on? How do we account for contradictions like this and the ACLU’s refusal to acknowledge its obvious willingness to elevate social justice concerns over the defense of speech in some cases? The ACLU is confronting a dilemma created by the hostility to free speech of its relatively new progressive constituency and the free speech values of its old guard. It’s also caught between a need to maintain its brand as the nation’s leading, non-partisan free speech champion, while embracing a new partisan political role as a leader of the resistance.

Because the ACLU has long maintained a dual, civil liberties/civil rights agenda it has long confronted conflicts between the drive for equality and defense of speech. But for decades the conflicts were manageable, even invigorating. And while, according to free speech advocates, the organization has sometime erred on the side of equality, it has not previously advised doing so systematically.

Now that its new case selection guidelines have been exposed, thanks to concerned ACLU insiders, we ought to be having a debate about the merits of this new approach to speech cases. Instead, because the ACLU doesn’t want to acknowledge its retreat from the unmitigated defense of allegedly hateful speech, we’re debating whether the guidelines mean what they say.

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The Larger Debate in the Liberal Community 

[T]he ACLU and progressives who might be persuaded by the ACLU’s logic are making a terrible mistake, and one that cannot be justified if one maintains a commitment to political democracy. This error is part and parcel of a broader process whereby the First Amendment has become more a mechanism for protecting class privilege than for protecting and promoting freedom and democracy. — Robert W. McChesney,The New Theology of the First Amendment,” Monthly Review, March 1, 1998 (insert added by rklc) 

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We’re also having an insider discussion about what constitutes ACLU policy and the board’s role in enacting it. Nadine Strossen observes that the guidelines don’t formally change policy, confirming that the board didn’t vote on them. But they will function as a de facto policy change (indicating the board’s irrelevance.) The guidelines are “intended to bind the national legal department,” and seem likely to be followed closely by many ACLU affiliates. (According to my source, the national office now strongly influences affiliate policy and staffing.)

If only the ACLU had issued a press release about the guidelines and posted them on its website when they were formulated, inviting and engaging in an honest debate about them. If only the ACLU had acted according to David Cole’s assertion (following the leak of the guidelines) that it has “nothing to hide.” While free speech advocates like me would still have vigorously critiqued the new balancing test and mourned the loss of an unwavering, unapologetic ally, we would have had no reason to accuse the ACLU of bad faith. And many ACLU supporters would (and probably do) welcome an equivocal defense of hate speech freedoms and a strengthened focus on social justice. That the ACLU is still trying to avoid this debate is another indication of its diminished devotion to its professed free speech ideals.

A Hyperlinked History of the Controversy:  ACLU & the First Amendment 

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