The ACLU unconvincingly denies accusations of “mission creep”

June 10, 2021 • 10:45 am

Three days ago I highlighted a New York Times piece, “Once a bastion of free speech, the A.C.L.U. faces an identity crisis“. (This was a news report, not an op-ed.) It obviously hit home at the ACLU, because on the organization’s website their legal director, David Cole, has written a long piece defending the ACLU against the accusation that it’s undergoing mission creep by moving from defending civil liberties to engaging in social-justice work.

Click on the screenshot to read.

Cole argues strenuously, and gives examples, that the ACLU is still actively engaged in defending civil liberties—often of people or groups despised by the Left, including the NRA, Milo Yiannopoulos, Donald Trump, and so on. He gives a list of five years of civil-rights lawsuits that the ACLU has brought—from 2017 to 2021.

And, as I’ve said before, he’s got a point here: the ACLU is indeed continuing its mission. My point, and the New York Times’s was that it’s diluting its classic mission by engaging in social justice work, which isn’t in itself bad, but because some of that social justice work is not even-handed but one sided in terms of rights. Further, there are many other organizations doing social-justice work, but only the ACLU (and now the Foundation for Individual Rights in Education, or FIRE), has the resources and chops to defend the civil liberties of the despiséd.

In other words, the ACLU is doing what the Southern Poverty Law Center has done: taken its classic mission and, by branching off into questionable social justice activities (damning Maajid Nawaz and Ayaan Hirsi Ali for the SPLC), diluted not just its mission, but also its credibility.

I’ve written at length about the dubious stuff the ACLU is engaged in; and here’s a partial list of posts:

The ACLU backs off defending free speech in favor of promoting social justice

New improved standards proposed for adjudicating sexual misconduct in college; ACLU opposes them for “inappropriately favoring the accused”

The ACLU defends the right of biological men to compete in women’s sports

ACLU continues defending the right of medically untreated men who claim they’re women to compete in women’s sports

ACLU joins lawsuit allowing biological males to compete in women’s sports

My beefs fall into four areas.

First, the ACLU is on the side of diluting the changes in Title IX made by Betsy DeVos to guarantee a fair hearing to college students accused of sexual misconduct. Nearly all these changes brought college hearings closer to court hearings, at least in terms of guaranteeing fairness. As I’ve said, these changes are one of the few positive things accomplished by the Trump administration, and the ACLU should have favored them. Instead, as you see in one piece below, they were characterized as “inappropriately favoring the accused.”  If you read the changes, I suspect you’ll agree that the ACLU should have been in favor of them, not opposed to them.

Second, the ACLU is on a big-time movement to ensure that transgender women can compete on a level playing field (i.e., competing under their gender identity) with men in sports. This is a complex issue (see here for one possible solution), but becomes less complex with the ACLU’s claim that medically untreated transgender women (that is, biological males who have undergone neither surgery nor hormone treatment but claim a female identity) should be able to compete in sports against biological women. This is a very bad call as it’s the equivalent of biological men competing against biological women, and this violates the very reason why we separate men’s and women’s sport. Further, even with medically treated transgender women, there is an issue of fairness to biological women, since transgender women may retain strength, bone density, and muscle mass that gives them an average advantage over biological women. The ACLU’s kneejerk reaction here does not take into account the “rights” of biological women. It is an ideological stand that deviates far from the ACLU’s mission to assure civil rights for all.

Third, in tweets by ACLU branches and attorneys, they have favored censorship of books like Abigail Schrier’s, and accused cops of murder who were, by all reasonable accounts, doing their jobs. How is this fulfilling their mission of extending civil rights to all? (Chase Strangio is the ACLU staff attorney in charges of transgender issues.)

Fourth, as I discussed in a post a while back, the ACLU circulated a document in samizdat that explicitly said that they now have to consider diluting their mission when defending speech involves defending “hate speech”. As I wrote at the time (my words are indented in regular type; the ACLU’s words are indented further and italicized):

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.

Yes this document, which was leaked and is now publicly available, is characterized by Cole this way in his post of yesterday:

I led a committee representing a wide range of divergent views within the ACLU in developing guidelines for selecting cases where they present conflicts between values that the ACLU defends. We reaffirmed in that document that “As human rights, these rights extend to all, even to the most repugnant speakers — including white supremacists — and pursuant to ACLU policy, we will continue our longstanding practice of representing such groups in appropriate circumstances to prevent unlawful government censorship of speech.”

At the same time, we acknowledged the costs that can come with that representation, including to other interests and work of the organization, and outlined ways to address and mitigate the costs when we do decide to embark on that representation. That can mean making clear in public statements that we abhor the speakers’ views even as we defend their right to express them, supporting counter-protesters, and investing any attorneys’ fees we obtain in connection with the work to advance the views that the speaker opposed and that we support. Some saw even this document’s acknowledgment of the complexity of such work as an abandonment of principle, but we saw it as an honest effort to confront the challenge of being a multi-issue organization.

Read the document yourself, and see if you think that’s a fair summary. Their “mitigation of costs” completely ignores the implication in the document that they might reject cases that they’d normally take because it involves hate speech that can cause “harm”.

At any rate, there’s also been negative reaction from other quarters to what I saw as a fair report in the NYT (see this piece in The New Republic).  The TNR piece is misguided in the same way the ACLU’s mission creep is misguided: they do not prioritize free speech over hate speech.  You cannot pretend that free speech will never be construed as “hate speech”—it’s nearly always seen that way by the speech opponents.

But thank Ceiling Cat for organizations like FIRE whose principle of promulgating free speech in higher education has not been diluted.

h/t: Ginger K., Enrico

16 thoughts on “The ACLU unconvincingly denies accusations of “mission creep”

  1. That can mean making clear in public statements that we abhor the speakers’ views even as we defend their right to express them, supporting counter-protesters, and investing any attorneys’ fees we obtain in connection with the work to advance the views that the speaker opposed and that we support.

    This is a complete fail of their mission, IMO. What person would hire a lawyer who publicly and loudly states they hate you, hate what you stand for, and plans to take your money and give it to your adversaries? This completely crosses the “perception of impropriety” line.

    Individual ACLU lawyers may certainly think that way. And they might in their spare time donate time and money to liberal causes without issue. But publicly, institutionally, I strongly believe they need to remain mostly neutral on these issues, because if they don’t, they’re going to lose their credibility as unbiased defenders of freedom of expression.

    Nobody’s going to trust the right hand to act fairly towards all if the left hand is putting it’s thumb on the scale to favor leftists.

  2. There seems to be a failure to admit that, while there are costs associated with free speech (as there are with every freedom), there are also costs associated with the lack of free speech. I think the old ACLU recognized this, and decided the costs of not having free speech were greater and more detrimental. It seems like Progressives in general believe that their policies could only help people, or that those that are harmed deserve it.

    1. Progressives seem to lack the ability of foresight or imagination and fail to see how something they champion now could come back to bite them in their asses later. The same goes for people arguing for rule changes in the House or Senate, or wanting to pack the Supreme Court. I cannot decide if it is a stunning display of ignorance, arrogance, or just plain ol’ stupidity.

      1. … people arguing for rule changes in the House or Senate …

        Congressional rules change all the time; there’s nothing sacred about them. There’s nothing that even preordains them in the US constitution.

        1. I think you missed my point, which was that the majority party changes the congressional rules to suit their needs and desires and then pitches a big damn hissy fit when they are the minority party and the other side does it to them. That’s all. I am in no way a constitutional literalist and not at all opposed to rule changes.

  3. The ACLU denying mission creep is like the New York Times claiming that it fired one of its science reporter for having used the n-word and claiming that it is never acceptable to use this word – never mind that it is easy to verify that the Times has used it several times in print recently (and I’m not talking about John McWorther’s recent article in the Times). There is a name for these kind of lies: Trumpian lies. That is, lies that are easily shown to be false.

  4. Anyone who reads or relies on The New Republic or The Atlantic (or the New Yorker or the NY Times) is guaranteed to get nothing but CRT and social justice propaganda. I am not renewing my subscriptions to these. I thank Jerry for staying on top of these truly urgent issues that threaten
    democracy and the Constitution, and which reinforce ignorance and prejudice and are among the most divisive campaigns going on in our country which could well lead to its disintegration, as Bret Weinstein has said.

      1. That’s correct. The Atlantic still employs several excellent left-of-center writers who aren’t woke, including Friedersdorf, Graeme Wood, George Packer, and so on. The New Yorker is down to Adam Gopnik. The New Republic used to sometimes veer right of center but is now a woke knockoff of Jacobin.

  5. I have been a dues paying member of the ACLU since 1967. I joined to support the anti-war movement and at the time I was still in the U.S. Army recovering from a wound I received in the Vietnam Conflict.

    In the late 1970’s the ACLU announced that they were going to defend the right of NAZIs to march and hold a rally in Skokie, Illinois. I thought and still think that was a stupid decision. The American NAZI Party offered nothing but a rehash of Adolph Hitler’s racist, violent and murderous views. Most members of the NAZI Party had no idea where their “group name” came from and were mainly, willfully ignorant of their party’s malicious and inhumane policies. The full name of their party was National Socialist German Workers Party. In German or Deutsch, it was Nationale Socialistiche Deutsche Arbeitung Partei. Their name was shortened by reporters to NAZI, some called them Nutzi.

    What vital contribution to human knowledge or humane discourse could such a group make? Does and did the world need a repeat of large scale anti-semitism, anti-labor union, anti-democratic thought and policies.

    Defending the NAZI’s First Amendment rights is not the same thing as defending a biology teacher’s right to teach biology in a biology class, nor is it the same as advocating for recognition of a labor union or stopping the Roman Catholic Church from prohibiting Margaret Sanger from speaking in a public hall.

    I think the ACLU was trying to “balance” their public image from the 1960’s when they supported anti-war activists. Even then they were not very helpful to the full spectrum of anti-war activism.

    I think one’s sense of civil liberty should be balanced by a sense of social justice. The ACLU should not be a rubber stamp for the Libertarian Party.

    John J. Fitzgerald

    1. If you only support free speech that you agree with, you don’t support free speech. Mill’s “On Liberty” should be required reading in U.S. secondary schools.

  6. In my view, the American Civil Liberties Union should stick to protecting the interests represented by its name–civil liberties. In other words, protect the freedoms and liberties enshrined in the first ten amendments to the United States Constitution (e.g., free speech; freedom to assemble; free exercise of religion; freedom from unreasonable searches and seizures). This would be a good start, and one way to prevent “mission creep.” Many of the efforts of the “new” ACLU are focused on someone’s ideas about civil rights or equality under the law (not civil liberties). That, or change the name of the organization to reflect the non-civil-liberties work it’s doing.

    1. Beyond the first ten amendments, it might be a good idea to support the 13th, 14th and 15th amendments. Equal protection of the laws is essential. And so is due process of law. These post-Civil War amendments are essential for securing the freedom of recently freed slaves and all of the rest of us. The ACLU is protecting Lincoln’s expanded version of the Bill of Rights. Support for a government of the people, by the people and for the people is not what the founders of 1787 had in mind. They wanted to protect property, not people.For them, an African slave was a piece of property, not a human being. This is what the Civil War was all about. The Reconstruction era, 1865 – 1876, is an important part of our national history and is often neglected, if not erased. I suggest some serious reading of American history. Start with DuBois’s The Souls of Black Folks.

  7. The ACLU has come perilously close to adopting the following which was said by a Canadian student in 2012 in a video now deleted.

    “Free speech is the right to educated speech. If you utilize your right to ‘freedom of speech’ but then are socially or politically apathetic, you don’t vote, educate yourself on social issues, if you are not involved in the community, if you are not involved in being a citizen, an educated citizen, you have no right to free speech.”

  8. This isn’t simple mission creep, it’s yet another example of the woke attempting to take over formerly respectable organizations. We’ve seen it in everything from online knitting groups to the New York Times. It’s a fundamentally dishonest approach by people unable to build worthy organizations themselves. They infect and destroy, nothing more.

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