Reason.com, a libertarian site, reports on a leaked memo from the American Civil Liberties Union (ACLU) that makes it pretty clear that the organization wants to ratchet back on defending free speech that is “hate speech”, i.e., speech that goes after “marginalized groups” (see below). You can discount the Reason.com article if you want, but do read the leaked ACLU memo (called “confidential attorney work product) as well as Wendy Kaminer’s Wall Street Journal piece (below) and see for yourself. The pdf of the ACLU’s memo is here.
While the ACLU memo repeatedly assures its readers that the group is not giving up on defending speech considered widely offensive, it’s pretty clear to me, and to former ACLU board member Kaminer, that for the ACLU “free speech has become second among equals.” (Link below, but probably paywalled; judicious inquiry will get you a copy.)
The ACLU’s new guidelines (these are suggestions, not yet policy) suggests that they won’t defend speech that seeks to “engage in or promote violence,” which is okay by me, so long as that promotion of violence is also the kind of “imminent violence” interpreted by the courts as not covered by the First Amendment. They also won’t defend speakers who “seek to carry weapons.” I don’t mind that, either, as that’s close to an incitement of imminent violence, and I don’t accept the courts’ interpretation of the Second Amendment.
No, the problem is this: the ACLU now will weigh “the impact of the proposed speech and the impact of its suppression”, so that now certain kinds of “hate speech” will be demoted on the ACLU’s agenda. From the memo (my emphasis).
The ACLU is committed to the fundamental rights to equality and justice embodied in the Fourteenth Amendment and civil rights laws. See Policies #301-332. We are determined to fight racism in all its forms, whether explicit or implicit, and the deep-rooted institutional biases that continue to reify inequality. We are also firmly committed to fighting bigotry and oppression against other marginalized groups, including women, immigrants, religious groups, LGBT individuals, Native Americans, and people with disabilities. Accordingly, we work to extend the protections embodied in the Bill of Rights to people who have traditionally been denied those rights. And the ACLU understands that speech that denigrates such groups can inflict serious harms and is intended to and often will impede progress toward equality.
Note that they now claim that speech that denigrates groups—including religion!—can “inflict serious harms” and “impede progress toward equality”. Here is the beginning of the slippery slope of “hate speech”. Is criticism of the Vatican, or the excesses of Islam, sufficiently harmful that the ACLU will not defend it? What about religionists who demonstrate for the right of bakers and others not to serve gays?
And remember when the ACLU defended the Klan when it wanted to march through the Jewish suburb of Skokie, Illinois? Well, no more.
We recognize that taking a position on one issue can affect our advocacy in other areas and create particular challenges for staff members engaged in that advocacy. For example, a decision by the ACLU to represent a white supremacist group may well undermine relationships with allies or coalition partners, create distrust with particular communities, necessitate the expenditure of resources to mitigate the impact of those harms, make it more difficult to recruit and retain a diverse staff and board across multiple dimensions, and in some circumstances, directly further an agenda that is antithetical to our mission and values and that may inflict harm on listeners.
In other words, “Free speech, but . . . “.
I’ve written at length why the speech that deserves the most protection and the strongest defense is speech considered most offensive. I am not a Nazi or a racist or a misogynist, but people espousing such views deserve their First Amendment rights, and if you want a long explanation of why, read John Stuart Mill’s On Liberty. Traditionally the ACLU has defended that speech, as a country in which only politically approved speech is allowed is a country in danger. Free speech is to a democracy as oxygen is to an animal. Now, however, they are bowing to the demands of social justice, and the secret memo makes that clear.
This, of course, goes along with the Regressive Left’s new dislike of the First Amendment, since it enables “hate speech”. Remember when Black Lives Matter students at my own alma mater, The College of William & Mary, shut down a talk by the Virginia Executive Director of the ACLU—a talk called “Students and the First Amendment”? That talk was never delivered because of the disruption, and how ironic is that? We are now in a time when all of us who are First Amendment mavens have to fight hard against its erosion by the Left, and that apparently includes by the ACLU. There was a reason, of course, why the memo was confidential, as otherwise there’s nothing embarrassing or secret in it.
As I said, author Wendy Kaminer was a former ACLU board member, and wrote a book describing her disillusionment with the organization. Now she’s even more disillusioned, as am I. I will no longer donate to them nor rejoin as a member until they start defending the groups they used to defend: both progressive groups and “offensive” groups.
Here’s Kaminer’s piece; ask and ye shall receive:
Here are a few quotes from that piece (if you’ve read her engaging books, you’ll know that she is not a right winger):
. . . . free-speech advocates know the ACLU has already lost its zeal for vigorously defending the speech it hates. ACLU leaders previously avoided acknowledging that retreat, however, in the apparent hope of preserving its reputation as the nation’s premier champion of the First Amendment.
But traditional free-speech values do not appeal to the ACLU’s increasingly partisan progressive constituency—especially after the 2017 white-supremacist rally in Charlottesville. The Virginia ACLU affiliate rightly represented the rally’s organizers when the city attempted to deny them a permit to assemble. Responding to intense post-Charlottesville criticism, last year the ACLU reconsidered its obligation to represent white-supremacist protesters.
The 2018 guidelines [in the memo above] claim that “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.” But directly contradicting that assertion, they also cite as a reason to decline taking a free-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.”
In selecting speech cases to defend, the ACLU will now balance the “impact of the proposed speech and the impact of its suppression.” Factors like the potential effect of the speech on “marginalized communities” and even on “the ACLU’s credibility” could militate against taking a case. Fundraising and communications officials helped formulate the new guidelines.
One half of this balancing test is familiar. The “impact of suppressing speech”—the precedents that suppression might establish, the constitutional principles at stake—is a traditional factor in case selection. But, traditionally, the ACLU has not formally weighed the content of speech and its consistency with ACLU values in deciding whether to defend it.
And this (my emphasis):
Tension between competing values isn’t new to the ACLU. Given its decades-old commitment to defending civil rights and liberties, the organization has long navigated conflicts between equality rights and freedoms of religion, speech and association. The guidelines assert that “no civil liberties or civil rights value should automatically be privileged over any other.” But it’s clear that free speech has become second among equals. Where is the comparable set of guidelines explaining when the ACLU should decline to defend gay-rights claims that infringe on religious liberty or women’s-rights cases that infringe on due process?
The speech-case guidelines reflect a demotion of free speech in the ACLU’s hierarchy of values. Their vague references to the “serious harm” to “marginalized” people occasioned by speech can easily include the presumed psychological effects of racist or otherwise hateful speech, which is constitutionally protected but contrary to ACLU values. Faced with perceived conflicts between freedom of speech and “progress toward equality,” the ACLU is likely to choose equality. If the Supreme Court adopted the ACLU’s balancing test, it would greatly expand government power to restrict speech.
Kaminer guesses that the ACLU will no longer defend the First Amendment rights of those it used to defend, like a Klan leader charged with for calling for ‘revengence” against blacks and Jews. And she concludes with this:
All this [the ability to choose cases using varied criteria] is the ACLU’s prerogative. Organizations are entitled to revise their values and missions. But they ought to do so openly. The ACLU leadership had apparently hoped to keep its new guidelines secret, even from ACLU members. They’re contained in an internal document deceptively marked, in all caps, “confidential attorney client work product.” I’m told it was distributed to select ACLU officials and board members, who were instructed not to share it. According to my source, the leadership is now investigating the “leak” of its new case-selection guidelines. President Trump might sympathize.
One wonders why the ACLU took such pains to keep the document secret. Well, read it for yourselves, and you tell me.
h/t: Eli, cesar