Politics & Policy

The ACLU Abandons Its Free-Speech Absolutism

An ACLU legal observer at Dulles International Airport during protests over the Trump administration’s proposed travel ban, January 29, 2017. (Mike Theiler/Reuters)
The group has transformed from defender of constitutional principles to advocate for progressive causes.

An internal memorandum confirms it: The American Civil Liberties Union is on the brink. The ACLU memo, first reported by the Wall Street Journal, deals with the question of how the group should balance “competing values” when choosing whether to defend free-speech cases in court. “Speech that denigrates [marginalized] groups,” the memo reads, “can inflict serious harms.” Accordingly, “the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values” constitutes a reason not to defend it. This from a group that proudly touts its 1978 decision to stand up for the First Amendment rights of a group of neo-Nazis in Skokie, Ill. If the Skokie case demonstrated the ACLU’s “unwavering commitment to principle,” what does this memo evince?

Founded under radical auspices, the American Union Against Militarism became the National Civil Liberties Bureau and then the ACLU under socialist Roger Baldwin. The name changes prefigured its transformation from a left-wing political agitator to a principled defender of constitutional rights. Over the next three decades, as the ACLU defended the notion of the public square, litigated against loyalty oaths, and helped the plaintiffs in Brown v. Board of Education, it continued to entrench itself in the political mainstream.

The backbone of the ACLU is its legal advocacy. But under the leadership of executive director Anthony Romero, that litigation wing has been increasingly buttressed by a political-lobbying outfit that exists to raise awareness — and revenue. Romero has broadened the scope of the ACLU beyond issues of speech, militarism, and racial segregation. Now, the ACLU proudly touts its efforts on “reproductive freedom,” “economic justice,” and stopping those who “use religion to discriminate.”

You might think one or each of these issues concerns a civil liberty that deserves defending, and the ACLU might have institutional pressures that require it to drum up as much revenue as it can. Attorneys have to be paid, after all. But lately, as the group’s political advocacy has become more brazen, it has begun to walk back its formerly unimpeachable position on speech.

Weeks ago, Dale Maharidge reported for The Nation on the ACLU’s “People’s Power” initiative. Membership has skyrocketed since the election of Donald Trump, as have donations; People’s Power represents an attempt to further capitalize on the new attention. But by the end, Maharidge had arrived at the intriguing question: “Is the ACLU a vehicle for progressive change, or is it a defender of constitutional principles?”

Romero told Maharidge that it could be both, arguing that the group’s new political-advocacy arm was an entry point for new members to understand its absolutist position on speech. But in the wake of the horror at Charlottesville, the ACLU came under scrutiny from its “base” for offering assistance to the protest’s organizers. The ACLU had “backed the alt-right”; it had “blood on its hands.” Grassroots progressives felt betrayed. Not long after, the ACLU announced that it would no longer defend armed protesters’ right to assemble. Never mind that ACLU policy was now to decline to defend two constitutional rights at once — who, after all, brings guns to a protest but wingnuts? Libertarians protested, but few else cared.

If this internal memo marks a further step in the organization’s decline, it should be no surprise. For there is an obvious tension between latter-day progressivism and the full-throated defense of civil liberties. If the world is uneven, its terrain shaped by the forces of race, gender, and sexuality with straight white men on the summit and the marginalized in trenches of varying depths beneath them, then viewpoint-neutral defenses of speech serve only to permit those who stand atop the topographic map to remain there. As Ulrich Baer argued in the New York Times, “Some topics, such as claims that some human beings are by definition inferior to others, or illegal or unworthy of legal standing, are not open to debate because such people cannot debate them on the same terms.” On this view, to defend a principle such as the First Amendment is to betray equality.

We need not rehash the perversity of these types of arguments to understand that the ACLU is increasingly open to them. From the memo: “Our defense of speech may have a greater or lesser harmful impact on the equality and justice work to which we are also committed, depending on factors such as the (present and historical) context of the proposed speech . . . and the structural and power inequalities in the community in which the speech will occur.” Once one goes down this road, there is no coming back — yet even if the ACLU is an increasingly sprawling and partisan organization, it still employs plenty of attorneys on the litigation side who care deeply about its former identity. Hence, the memo attempts to qualify itself: “At the same time, not defending such speech from official suppression may also have harmful impacts . . . Many of these impacts will be difficult if not impossible to measure, and none of them should be dispositive. But as an organization equally committed to free speech and equality, we should make every effort to consider the consequences of our actions.”

Wish, meet wash. Is the ACLU the group that defended Nazis at Skokie, or is it the group that attracted thousands of small-dollar progressive donors by blaring its opposition to Trump over every loudspeaker? It can’t decide. No doubt Romero has navigated the group to lucrative waters, but there is now a powerful financial disincentive for the ACLU to remain the ACLU. It can try to balance these competing pressures for now, but free-speech absolutism is absolutist for a reason.

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