Author: Ronald K.L. Collins


New Book — “Waging Justice: A Doctor’s Journey to Speak Truth and Be Bold” by Paul Zeitz

Waging Justice is a deeply personal story of courage and compassion with global implications. Dr. Zeitz is a man of conscience who shares my commitment to bringing hope to the world’s poor. Please read Waging Justice. You won’t regret it! —Archbishop Emeritus Desmond Tutu

* * * * *

Paul Zeitz, Waging Justice: A Doctor’s Journey to Speak Truth and Be Bold (June 15, 2018) (author website here)

In unflinching prose, Dr. Paul Zeitz shares a lifetime of struggles and hard-won lessons as a doctor, activist, father, and son. His complex dance between healing others and healing himself ultimately transforms the inexplicable anger and disappointment he felt at the state of the world and his own past into full throttled, open-hearted, soul-satisfying action set with his family and on a global stage.

Waging Justice is a personal story and also a universal one: a story of action, of courage, and of forgiveness; and a rallying cry to wage justice in our lives, speak the truth, be bold, serve justice for all by taking action in the world today.

* * * * *

Dr. Paul Zeitz

Advance Praise Read More


FAN 199.2 (First Amendment News) Forthcoming — Special 200th Issue: All-Women Contributors

In September, we will celebrate the 200th posting of the regularly scheduled issue of First Amendment News. The first issue of FAN appeared on February 10, 2014 on the Concurring Opinions website.  

Kellye Testy

To mark the 200th posting we have organized a special online symposium, the first of its kind either online or in print (as far as I know).  The symposium will consist of an all-women issue — 16 women writing original essays on various aspects of freedom of expression under the First Amemdment. The issue will include essays by noted law professors, lawyers, activists, and journalism and communications scholars.

The forthcoming issue follows on the heels of FAN 199, another Special Issue — 38 Women Who Argued First Amendment Free Expression Cases in the Supreme Court: 1880 -2018

 Kellye Testy (President of the Law School Admission Council,  former president of the AALS & former Dean of the University of Washington Law School) is writing the foreword to the symposium. 

The 16 Confirmed Contributors are:

Jane Bambauer

Mary Anne Franks

Sarah C. Haan

Laura Handman

Marjorie Heins

Margot Kaminski

Genevieve Lakier

Lyrissa Lidsky

Jasmine McNealy

Helen Norton

Tamara Piety

Ruthann Robson

Kelli Sager

Alison Schary

Morgan Weiland

Sonja West


FAN 199.1 (First Amendment News) Two New Podcasts — Dissent in the Era of the Gutenberg Press & Free Speech in the Robotic Era

Two new podcasts — the subjects which are separated in time but not in concept — address the relationship between the modes of communication and censorship.  The first is a Clear & Present Danger podcast by Jacob Mchangama entitled The Great Disruption – Part II. The second is a So to Speak podcast narrated by Nico Perrino entitled Robotica: Speech Rights & Artificial Intelligence and consists of an interview with Ronald Collins and David Skover.

In episode 11 we continue to survey the wreckage after hurricane Luther was unleashed on Europe with the Reformation. When the Reformation mutated and spread across the continent a burning question arose: Can people of different faiths live together in the same state? Should social peace be based on tolerance or intolerance? We look into questions such as

  • How did other Protestant reformers like Calvin and Zwingli react to religious dissent?
  • In what manner did English and continental censorship laws differ?
  • How did the Catholic Church react to the Reformation?
  • Which states were the first to formalize religious tolerance?
  • How did the scientific and philosophical ideas of Galileo and Giordano Bruno conflict with the religious monopoly on truth and what were the repercussions?

___________________So to Speak podcast_______________________

David Skover (left), Ronald Collins (center) & Nico Perrino (right)

On this episode of So to Speak: The Free Speech Podcast, we are joined by First Amendment scholars Ronald Collins and David Skover. They are the authors of the new book, Robotica: Speech Rights & Artificial Intelligence.

From the printing press to the internet, advances in communications technology often upset the established order and spawn demands for censorship. There is little reason to suspect advances in artificial intelligence will be treated differently. As free speech advocates, how should we respond to these demands?

To answer that question, Collins and Skover argue that we need to take a step back and ask some more fundamental questions about the values we seek to advance in protecting speech in the first place.

___________________Make No Law podcast_______________________

Everyone loves a good redemption story. Maybe that’s because it helps us believe it’s never too late to change. But how does the same Justice who decided Schenck v. United States, a low point for First Amendment jurisprudence, become the ultimate source of famous First Amendment concepts and rhetoric?

In this episode of Make No Law, the First Amendment Podcast by, host Ken White explores Justice Oliver Wendell Holmes’s transformation into the First Amendment hero we know him as today. To do this, Ken discusses the Sedition Act of 1918, Holmes’s dissent in United States v. Abrams, and the discourse with his friends and colleagues that ultimately swayed his opinion on free speech. He also talks to Professor Thomas Healy, First Amendment and constitutional law professor at Seton Hall and author of The Great Dissent: How Oliver Wendell Holmes Changed His Mind And Changed The History Of Free Speech In America.


FAN 199 (First Amendment News) SPECIAL ISSUE: 38 Women Who Argued First Amendment Free Expression Cases in the Supreme Court: 1880 -2018

Olive H. Rabe (credit: Boulder Daily Camera)

It was a Friday, April 12, 1929, when Olive Rabe, counsel for the appellant, entered the old Senate chamber with its grayish walls. She walked down the red carpet toward the bench, took her assigned seat at a mahogany table, and waited for the justices to enter the small chamber from the robing room across the Capitol corridor.

Only a few other women had done what she was about to do, argue a case before the Supreme Court — the first woman lawyer being Belva Ann Lockwood. (A couple of pro se women preceded her.)

There in that solemn chamber, with Chief Justice William Howard Taft in the center flanked by Oliver Wendell Holmes Jr. and Louis Brandeis and their brethren, Rabe (age 40) would make the case for another woman, Rosika Schwimmer (age 51). She would be the first woman to argue a “free speech” case in the high court. For any number of reasons, it was a rare moment in Supreme Court history. — Ronald Collins & David Hudson (May 26, 2008)

* * * *

Eleanor Holmes Norton

When it comes to the First Amendment, relatively little is known about the roles women played in the development of that body of law. While many may know of Justice Holmes’s oft-quoted free-speech dissent in U.S. v. Schwimmer (1929), how many are aware that Olive H. Rabe, a labor lawyer, represented the respondent in that case?  Schwimmer, however, was a free speech statutory interpretation case but not, strictly speaking, a First Amendment case. It would take another 24 years before a woman  (Florence Perlow Shientag) would argue a First Amendment free expression case —  Superior Films v. Dep’t of Education of Ohio (1953) (for respondent). Thereafter, it took  15 years before another woman would do likewise. That woman was Eleanor Holmes Norton, who successfully argued on behalf of the petitioner in Carroll v. President and Commissioners of Princess Ann (1968). Four years later Sophia H. Hall successfully argued on behalf of the appellant in Grayned v. City of Rockford (1972) (oral argument transcript here). The world was starting to change, but not fast or often enough.  

Barbara Underwood (credit: NY Daily News)

The list below consists of 38 women who  argued 43 First Amendment freedom of expression (speech, press and assembly) cases before the Supreme Court between 1880 and 2018.  Since the data bases I consulted started in 1880, my list begins there and continues through the 2018 line of Supreme Court cases.

The woman who argued the most such cases was Barbara D. Underwood (3 cases) followed by Patricia Millett (2 cases), Ann E. Beeson (2 cases), and Elena Kagan (2 cases). Pamela Karlan was the last woamn to argue a First Amendment free expression case — Lozman v. City of Riviera Beach, Florida  (2018).

To the best of my knowledge, the list below is complete though given the difficulty of identifying the lawyers and cases, it might be that I overlooked someone — if so, please inform me and I’ll update the list.


_____________The 38 Women________________ Read More


FAN 198 (First Amendment News) The new spin on defamation practice

How are you supposed to prove as a defamation plaintiff that the journalist knew what they were writing was false if you don’t have access to the identities of their sources? It’s really problematic. — Elizabeth ‘Libby’ Locke

Headline: “New York Times, NBC, and ‘60 Minutes’ Bigwigs Hired These Media Assassins to Fight #MeToo Stories”

That is the banner accompanying a news story filed by Lachlan Cartwright in The Daily Beast. Here are a few excerpts:

  • “One of television’s most powerful men, 60 Minutes Executive Producer Jeff Fager, hired a law firm that boasts about “killing stories” for a Washington Post investigation into him, three sources familiar with the matter told The Daily Beast.””The story was a deep dive into what CBS managers knew about former anchor Charlie Rose’s alleged sexual misconduct, but due to the aggressive tactics of law firm Clare Locke, the sources said, the story was ‘effectively neutered.'”
  • “Clare Locke is the creation of husband and wife team Tom Clare and Elizabeth ‘Libby’ Locke. ‘Some of Libby’s biggest defamation ‘wins’ are stories the public will never hear about,’ her website says. They have litigated against Rolling Stone, The New York Times, Katie Couric, CNN, and Gawker, to name a few.”
  • “Clare Locke was ‘able to slow it down and in effect change the dynamic,’ a person with knowledge of the situation told The Daily Beast. The law firm sent The Washington Post several letters threatening litigation, the sources said. As a result, other reporting about [60 Minutes Executive Producer Jeff] Fager was left out of the published story, three sources said.”


  • “Tom “Clare told The Daily Beast: ‘We’re proud of the pre-publication work we do to make sure that media reports about our clients are truthful and accurate.'”

Theodore J. Boutrous Jr. (credit: Zimbio)


“‘There’s is a new spin on defamation practice. They are bragging about killing stories. They are not focusing on litigation but the pre-publication element to squash a story,’ said Theodore J. Boutrous Jr., partner at the Gibson Dunn law firm and a vocal First Amendment advocate.”


→ A.J. Katz, Jeff Fager Reportedly Hired Law Firm to Kill a WaPo Investigation Into His Role in Charlie Rose Saga, Adweek, July 20, 2018

5 Notable New & Forthcoming Commentaries on the Janus Case

Professor William Baude (credit: SCOTUSblog)

Professor Eugene Volokh (credit: UCLA Magazine)

“[W]e think the [Janus v. AFSCME] majority—and for that matter the dissent, and the unanimous opinions in Abood v. Bd. of Ed. and Keller v. State Bar —erred on the preliminary point. The better view, we think, is that requiring people only to pay money, whether to private organizations or to the government, is not a First Amendment problem at all. The employees in Janus were not compelled to speak, or to associate. They were compelled to pay, just as we all are compelled to pay taxes; our having to pay taxes doesn’t violate our First Amendment rights, even when the taxes are used for speech we disapprove of—likewise with having to pay agency fees. If we are right, as we argue in Part II, then the result in Janus was wrong.

“The most striking thing about Justice Alito’s majority opinion–to me, anyway–is that the Court majority was willing (quite eager, in fact) to overrule such a well-entrenched precedent without providing virtually any basis for thinking that the fee deduction “abridges” anyone’s actual speech.  As many scholars have long explained (including my colleagues Greg Klass and David Luban, as well as, more recently, Eugene Volokh and Will Baude), Justice Alito is right that “Abood was poorly reasoned–but in the other direction.  The original sin of Abood was not the Court’s failure to prohibit agency fees for collective bargaining functions, but instead in holding that employee deductions can implicate the Free Speech Clause in cases where there’s no compelled association (no one is required to join the union), no possibility of any misattribution of the organization’s speech to the objecting payers, and the payment in question is not triggered by the objector’s own speech (as in Tornillo and PG&E).”

“This post is the first in a series on the uses and abuses of the First Amendment as a deregulatory tool – that is, the First Amendment’s potential to undermine regulatory schemes that protect workers, consumers, voters, investors, and more. The format is borrowed from Slate’s Supreme Court Breakfast Table. The participants are Nikolas Bowie, Caroline Mala Corbin, Catherine Fisk, and Charlotte Garden.”

Professor Jedediah Purdy (credit: Duke University School of Law)

“Once we see that any constitutional vision involves some relationship between the “democratic” and the “capitalist” parts of capitalist democracy, it becomes possible not just to criticize the Court’s siding with market winners, but also to ask what kinds of equality-pursuing policies the Constitution must permit to reset that balance in favor of democracy.”

“This short white paper explains how progressive states can undo the disruptive effect of the Supreme Court’s decision invalidating public union fair share fees in Janus v. AFSCME, Council 31.

“Put succinctly, lawmakers can amend state law to permit government employers to reimburse unions for their bargaining-related expenses directly. Such an amendment would be revenue neutral for government employers and unions, and it would result in a net increase in take home pay for public sector workers (on the order of $200 per year for an unmarried worker making $50,000).”

3-D Guns & Free Speech  Read More


FAN 197 (First Amendment News) Congressional Committee Holds Hearing on Proposed Free Flow of Information Act

[T]he potential chilling effect occasioned by the current state of affairs in the federal courts cannot be overstated. The ongoing drum beat of subpoenas, coupled with the lack of clear guidance concerning the recognition and scope of a reporters’ privilege in the federal courts, has impaired the ability of the American public to receive information about the operation of its government and the state of the world in which we live. There is, therefore, now a palpable need for congressional action to preserve the ability of the American press to engage in the kind of important, public-spirited journalism that is often possible only when reporters are free to make meaningful commitments of confidentiality to their sources.Lee Levine

* * * * 

Committee: Joint Hearing of the Subcommittee on Intergovernmental Affairs and the Subcommittee on Healthcare, Benefits, and Administrative Rules of the United States House of Representatives Committee on Oversight and Government Reform  (video of hearing here)

Date: 24 July 2018

  • To discuss H.R. 4382, the Free Flow of Information Act, a shield law that conditions the federally compelled disclosure of information by journalists.
  • In November 2017, Rep. Jamie Raskin (D-MD) and Rep. Jim Jordan (R-OH) introduced the Free Flow of Information Act to protect the exercise of freely reporting critical information to the American public by establishing federal protection from compulsory disclosures for journalists.
  • Most states have enacted laws to shield journalists from being compelled to reveal their confidential sources. However, this patchwork of protection at the state level does not fully protect journalists as the federal government increasingly seeks to seize records belonging to journalists.

What the Bill Does

Representative Jamie Raskin (credit: Jewish Insider)

The Free Flow of Information Act would for the first time enshrine a journalist-source protection into federal law. It would prevent journalists or news organizations from being forced to reveal to the government any sources or documents related to their investigations.

Such information could only be compelled under subpoena if several separate conditions are all met:

  1. The federal government can prove it has exhausted other options for obtaining the information.
  2. The information sought is “critical” to the investigation at hand, rather than tangential.
  3. “The public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information.”

This last requirement in particular is subject to considerable interpretation on the part of the judicial system. It’s possible — even likely — that certain courts or judges would almost always rule in favor of the government rather than news organizations, even if this bill became law.

Representative Jim Jordan (credit: Toledo Blade)

So how would that work in the real world? Take the famous example of the NYT’s Miller from 2005, who was imprisoned for refusing to reveal her source in a grand jury case investigating the leak of the identity of an undercover CIA officer. Presumably Miller would have been significantly less likely to have been jailed under this law, with its much higher burden of proof.

But as even the bill’s sponsors concede, it’s almost impossible to say she “wouldn’t” have been jailed, as a court may still have ruled that the public interest in compelling disclosure may have outweighed any other considerations.

Wittnesses & Testimonies 

Name Title Organization Panel Document
Lee Levine Senior Counsel Ballad Spahr, LLP Document
Sharyl Attkisson Investigative Correspondent FullMeasure Document
Rick Blum Policy Director Reporters’ Committee for Freedom of the Press Document

Dershowitz on “Trump’s bid to silence dissent” Read More


FAN 196.1 (First Amendment News) Summertime: Free Speech Podcasts to Check Out

It’s summertime and the livin’ is easy (channeling Ella Fitzgerald & Janus Joplin). So, if you’re driving to the beach, or at the beach under an umbrella, or in a hammuck watching the stars, why not plug into a mind-opening podcast on free speech? Sound inviting?  If so, check out these great podcasts (all free!):

  1. Fire in a Crowded Theater (Ken White explores the origins of the phrase “You can’t yell ‘fire’ in a crowded theater” and whether or not it actually calls for exceptions to the First Amendment.)
  2. Street (In this episode, host Ken White examines Street v. New York, the Supreme Court case which concluded that the First Amendment allows freedom of expression towards the American flag.
  3. Crush (Ken White and guest Marc Randazza examine the question of whether the government can continually come to the Supreme Court with potential exceptions to the First Amendment._

  1. The Great Disruption: Part I: The Printing Press and the Viral Reformation (In episode 10, we cover the invention, spread, and effects of the Gutenberg printing press:
  • What significance did this new technology have for the dissemination of knowledge and ideas?
  • Why was the printing press instrumental in helping a German monk and scholar break the religious unity of Europe?
  • What happened when new religious ideas raged through Europe like wildfire?
  • And did Martin Luther’s Reformation lead to religious tolerance and freedom, or persecution and censorship?)

2.  Expert Opinion: Christime Caldwell Ames (Our last stop in the Middle Ages is an interview with professor Christine Caldwell Ames, who is an expert on medieval heresy and inquisition in Judaism, Christianity, and Islam. The discussion highlights the similarities and differences between Christianity, Catholic and Orthodox, Judaism, and Islam when it comes to defining and policing orthodoxy.)

3.  The Hounds of God — Medieval Heretics & Inquisitors (From the High Middle Ages, Europe developed into a “persecuting society,” obsessed with stamping out the “cancer” of heresy. But questions about how this was accomplished — and the consequences of these developments — abound)

  1. Supreme Court Review: Kennedy, Kavanaugh, and “weaponizing the First Amendment” (On this episode of So to Speak, we discuss President Donald Trump’s nomination of Brett Kavanaugh to the United States Supreme Court and what it might mean for the First Amendment. We also review Anthony Kennedy’s legacy, the free speech cases from this past Supreme Court term, and Justice Elena Kagan’s contention that some of her colleagues are “weaponizing the First Amendment.” The guests on today’s show are: Paul Sherman: Senior attorney, Institute for Justice Bob Corn-Revere: Partner, Davis Wright Tremaine Walter Olson: Senior fellow, Cato Institute)
  2. ‘HATE’ with Nadine Strossen (On this episode of So to Speak, we welcome back to the show former ACLU president and New York Law Professor Nadine Strossen. She is the author of “HATE: Why We Should Resist It With Free Speech, Not Censorship.” In this new book, she argues that America’s broad protections for hateful speech are a good thing, and that efforts to censor such speech has historically backfired or been proven ineffective.)
  3. Most memorable FIRE cases (In this episode of So to Speak, we take a trip down memory lane. We are joined by FIRE’s Greg Lukianoff, Samantha Harris, and Will Creeley to discuss memorable cases from FIRE’s 19-year history. You can watch a video of this conversation on FIRE’s YouTube channel(



FAN 196 (First Amendment News) Special Issue: 20 New or Forthcoming Books












        Marvin Kalb (Sept. 25,  2018)         Lukianoff & Haidt (Sept. 4, 2018)          Cynthia Chris (Jan. 2019)


Banned Books Week 2018, the annual celebration of the freedom to read, will be held September 23 – 29. The 2018 theme, “Banning Books Silences Stories,” is a reminder that everyone needs to speak out against the tide of censorship.

For more information, click here













Eric Robinson(Dec. 12, 2018)              Larry Brimner (Oct. 9, 2018)               Dan Bernstein (Jan. 1, 2019)













Christian Cotton & Eric Arp, eds. (Nov. 13)  Kristie Byrum (Aug. 15, 2018)  Mike Ananny (May 4, 2018)


Bollinger & Stone, eds. (Dec. 3, 2018) Read More


FAN 195.1 (First Amendment News) Institute for Free Speech Releases the Free Speech Records of Judges on Trump’s Short List

The Institute for Free Speech has just released The Free Speech Records of Judges on Trump’s Short List.

Here is the introduction to its study:

“With Justice Anthony Kennedy retiring, President Trump has a second opportunity to appoint a justice to the Supreme Court.”

“As with the the previous nomination, the Institute for Free Speech seeks to analyze the records of potential nominees to educate the public on where these justices stand on First Amendment issues.”

The “Institute for Free Speech analyses on the free speech records of some of the judges on President Trump’s list of potential nominees. The Institute for Free Speech will continue to update this page with additional analyses until a nominee is named.”

Again, the records of the potential nominees as compiled by the Institute can be found here.


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


  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.


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.


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) 


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