The ACLU Is No Longer a Free Speech Organization

People attend an ACLU event in Florida (Getty Images)
June 21, 2018

The American Civil Liberty Union has done a lot of good in this country, imho. I know they're a favorite target of many conservatives, including my bosses, and I myself would never donate to them (their abortion advocacy being a deal-breaker). But the organization has a long history of standing up for and protecting the constitutional liberties of even unpopular or politically toxic Americans. Or at least it used to.

Last year, for example, the ACLU defended the rights of white supremacist protestors after their application to demonstrate in Charlottesville, Virginia was denied. We all know what happened next. The protest was approved, counter-protesters also showed up, the groups clashed, and an innocent woman was murdered by one of the Nazis.

The ACLU position was correct. As a matter of constitutional law and legal precedent, the government cannot ban speakers based on the content of their message, even if that message includes endorsements of violence. The ACLU is not culpable for the complete ineptitude of local law enforcement to foresee the possibility of violence and separate the two sides. But nonetheless, the ACLU was attacked by liberal allies and former employees who asked they "rethink free speech."

It worked. In an internal memo obtained by the Wall Street Journal, the ACLU nows says that when choosing clients, they will take into account several factors, including "the potential impact on the ACLU’s credibility" and "the potential harm to important relationships and ACLU standing." What's worse, the memo goes on to lay out "Considerations Specific to Speech Cases," including the "impact of the proposed speech," the "potential effect on marginalized communities," and whether "the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values."

All of which is a nice way of saying that if the government illegally suppresses your speech and ACLU deems that defending you will cause blowback to the organization, you can go pound sand.

Of course, not every radical or extremist organization is going to affected by this directive, only those that might damage relationships with "allies or coalition partners," harm "marginalized communities" or are "contrary to [their] values."

The ACLU's values are left-liberal. Its allies are left-liberals. The "marginalized communities" they care about are communities championed by left-liberals. For all intents and purposes, the ACLU is signaling that the only extremists they plan to abandon are on the right.

The tension between the ACLU's commitment to free speech and its place in polite liberal society has long existed. The first shot across the bow came following Citizens United. The ACLU had long opposed campaign finance laws that limited ad buys and expenditures from private parties, ever since Nixon tried to use campaign finance laws to silence his opponents. That perspective was vindicated when administration lawyers argued during Citizens United's oral argument that the government had the power to ban books if they believed it to be campaign-related.

But three days after the Supreme Court ruled in their favor, the ACLU invited lawyers to their quarterly board meeting to debate whether or not they should change their stance. The board of directors voted to send the issue to a special committee to mull whether they should reverse a position they'd held for decades.

The text of the First Amendment did not change in three days. What changed was an outpouring of anger from liberals who considered the ACLU an ally. Ultimately, the result was a narrow vote months later in which the ACLU said it now supports "reasonable" restrictions of campaign finance, without bothering to define what those restrictions are.

Then came the debate over abortion "buffer zone" laws, which seek to ban anti-abortion protesters from coming with in a certain distance of abortion clinics. In 2000, the ACLU recognized that this was a blatant violation of protesters' free speech rights. ""[T]he First Amendment does not permit the state to restrict the free speech rights of all protesters because some protesters may take advantage of the situation to violate the law," they argued in an amicus curiae brief.

When Massachusetts passed a buffer law in 2007 far more restrictive than the law the ACLU challenged years earlier, the state chapter likewise opposed it. But when the issue came before the Supreme Court in McCullen v. Coakley, both the Massachusetts ACLU and the national organization blatantly flip-flopped (or "evolved" as they put it), arguing that the law was "constitutional on its face given a record of past harassment, intimidation, obstruction and violence."

In the end, Massachusetts was spanked by the Supreme Court, which ruled 9-0 that the law violated the First Amendment. Let that sink in: the ACLU was on the wrong side of a case decided unanimously on free speech grounds. And once again, it was blatant that their abandonment of their principles came because the issue touched upon a sacred cow of modern liberalism.

Now, the ACLU has effectively handed a heckler veto to its donor base. All it takes is a large enough social media mob or letter-writing campaign, and the organization will roll over and tell a victim of government censorship they're on their own. This is particularly dangerous in any era, but the ACLU picked up millions in new donations for its work opposing the Trump administration, much of it from  have only the slightest inkling of what their actual mission is. When the choice is millions of dollars or sticking to its principles, is the ACLU going to stand up for unpopular voices, even in cases when the liberal consensus is in the wrong?

Once, it faced that choice. When the ACLU defended the rights of Neo-Nazis to march through the predominantly Jewish neighborhood of Skokie, Illinois, the result was a mass exodus of members that left the organization with a $500,000 budget deficit (nearly $2 million today). It came at great personal cost, with 20-30 percent of the organization losing their job. But the result of that sacrifice was a landmark Supreme Court ruling that still protects the rights of all Americans to peacefully assemble.

The ACLU is no longer a free speech organization. It's still an organization that will protect free speech and litigate free speech cases, yes. But any coward can defend popular speech, or speech that's considered within the bounds of decency. For a century, the ACLU stood above the partisan and political fray and defended principles, not people.

Alas, absent a reversal, that chapter in the ACLU's history is over. Gone are the days where they abided by the timeless classical liberal maxim that "I may not agree with what you say, but I'll defend to the death your right to say it." Welcome to the days of "I may not agree with what you say. Sorry."

Published under: ACLU