Phi Beta Cons

The ACLU and Student Speech

Wendy Kaminer is one of our country’s most committed (and consistent) civil libertarians.  When I worked with Wendy as president of FIRE (Wendy serves on FIRE’s Board of Advisors), I knew two things: (1) she would never waver in any free speech case; and (2) we would never agree on politics.  Much like Alan Dershowitz (another person I disagree with politically but always trust to fight the good fight on free speech), Wendy speaks with an authentic and credible voice when she talks about the First Amendment.

And that’s why her piece in today’s Wall Street Journal is so important.  In it, she notes the ACLU’s increasing tendency to aggressively protect liberal speech while either ignoring conservative free speech cases or actually (in at least one case) advocating an overbroad and unconstitutional speech code.  Here’s the core of her argument:

“Once the nation’s leading civil liberties group and a reliable defender of everyone’s speech rights, the ACLU is being transformed into just another liberal human-rights group that reliably defends the rights of liberal speakers.
“This transformation is gradual, unacknowledged and not readily apparent, since evidence of it lies mainly in cases the ACLU does not take. It’s naturally easier to know what an organization is doing (and advertising) than what it is not doing. But a review of recent free-speech press releases turns up only a handful of cases in which ACLU state affiliates defended the rights of conservative, anti-gay or otherwise politically incorrect speakers. And lately the national organization has been remarkably quiet in several important free-speech cases and controversies.”

At this point, the ACLU can either fundamentally reform and become the true “honest broker” (like FIRE) that it claims to be, or it can come clean and just admit that it is a leftist advocacy group.  The ACLU is like the New York Times of the legal community — a powerful leftist cultural force masquerading as an unbiased authority.  Much like the Times, the ACLU needs to be honest about its agenda.  Yet that honesty will come at a price.  The ACLU owes a considerable amount of its current influence to an (inaccurate) reputation for impartiality on constitutional issues.  So when it labels, for example, pro-homosexual t-shirts as free speech but then (as it did in the Georgia Tech case) advocates that certain other categories of protected speech should be banned as “harassment,” it receives a far more respectful hearing than it should.   
Much of the fury — particularly amongst conservative Christians — directed against the ACLU is caused by this fundamental deception.  The deception is frustrating on its own terms, and it has real policy consequences.  At ADF (my employer), we are by contrast quite open about our point of view.  We are a pro-life organization that “defends the right to hear and speak the Truth.”  (And just so there’s no doubt that we’re coming from the issue from a distinctively religious perspective, we capitalize the “T”).  That does not mean that we argue for the free speech and free association rights of conservative students and against the rights of liberal students.  We advocate a level playing field, not a double standard.
In fact, in the arena of student speech (particularly university student speech), it seems that there could and should be left/right consensus on the First Amendment framework.  There’s just no constitutionally defensible reason to protect the expression of one side of a political/cultural/religious debate while labeling the other side “harassment.”  If nothing else, there is one compelling reason for the left to embrace free speech on campus:  People like me would have to find new jobs.