The ACLU’s Longstanding Commitment to Defending Speech We Hate

The ACLU, the nation’s oldest and largest civil liberties organization, has always had its share of critics. Many condemned us for defending Nazis’ right to march in Skokie in the 1970s. Some, like former Attorney General Ed Meese, labeled us the “criminals’ lobby” for advocating for constitutional rights for those accused of crime. We earned few friends when we represented Anwar al-Awlaki, an American citizen suspected of terrorist ties and killed in a drone strike by the Obama administration. After we represented a white supremacist denied a permit by the city of Charlottesville, we were criticized for defending white supremacists. Such criticism comes with the territory, and does not dissuade us from defending the Bill of Rights, no matter how unpopular our clients may be. 

But Wendy Kaminer’s criticism, published in the Wall Street Journal, is different from those challenges to our work. Her critique is predicated on a fundamental misrepresentation. She falsely accuses the ACLU of having secretly changed its policy regarding free speech — and of launching an investigation to determine who “leaked” the “secret” document that she claims reveals this asserted change in policy. In fact, the ACLU remains fully committed to defending free speech as the document she cites – our guidelines for case selection -- expressly reaffirms. That document does not change our longstanding policies and has never been secret. 

After the tragic events in Charlottesville, we reaffirmed our commitment to defending speech with which we disagree. The ACLU Board — the only entity with the authority to change ACLU policy — discussed Charlottesville, and no one on the staff or the board asked the board to change our policies.

Nonetheless, it seemed clear to us that guidelines would help ACLU affiliates and national staff in considering cases that might pose conflicts between our values. We are a multi-issue organization, and some cases may present conflicts, such as between gay rights and religious freedom, privacy and women’s rights, or speech rights and equality. The guidelines, which have been distributed to all ACLU staff members, are explicitly designed to help affiliates and national staff think through various factors in case selection decisions.

Kaminer claims the guidelines change our policy. But the guidelines clearly state that they do not “change ACLU policy, which is set by the Board.” They reaffirm our view that free speech 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.” Nothing in the guidelines supports Kaminer’s claim that “free speech has become second among equals.”

Kaminer objects to any acknowledgement that speech can cause harm. But that is simply a recognition of fact, and denying it flies in the face of lived experience and ignores the costs of free speech. All rights come with costs, from privacy to due process to the right against compelled self-incrimination. Acknowledging this hardly means one lacks commitment to the rights. It simply recognizes the stakes. The guidelines do not suggest that the ACLU should not represent a speaker because his speech causes harm. Rather, they “attempt to identify the kinds of questions that ought to be considered, the processes for their consideration, and the measures that can help mitigate the harms to competing interests.” We will continue to represent those expressing offensive and harmful views, but we as an organization also insist on our right to condemn a speaker’s views even as we defend the right to express them.

And if you don’t believe our words, judge us by our acts. We represent Milo Yiannopoulos in a suit against the Washington, D.C. Metro system for suppressing ads for his book. We are defending a student group in San Diego that was penalized for publishing a satire of “safe spaces” that some students and faculty deem offensive. We disagree sharply with those who engage in terrorism, criminal activity, homophobic or racist speech, or attempts to dissuade women from obtaining abortions. Yet we have defended the constitutional rights of terrorists, criminals, anti-gay and racist bigots, and right-to-life advocates. We don’t burn flags, but we defend the rights of those who do. Indeed, we’ll even defend Kaminer’s right to criticize the ACLU. But we do wish she’d get the facts straight.

This article first appeared in The Volokh Conspiracy.

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Dr. Timothy Leary

God bless the A.C.L.U., if it wasn't for them the government would still be using the whip, the branding iron, and the hot lead enema.

Anonymous

How many cases has the ACLU taken where they argued that even the hint of discriminatory intent revealed via internal communications of an entity was proof of institutionalized discrimination, no matter how much the entity swore it was neutral and pointed to its explicit non-discriminatory policies?

The ACLU here hasn't just lost its devotion to free speech, they've lost their sense of irony. They're pointing to their token republican cases and one republican friend. Whats next, going to show a group photo of the ACLU lawyers eating at Chick-Fil-A? Y'all got exposed by a leaked document laying out how you established subjective criterion for strongly urging your activists not to take cases defending speech you disagreed with. You dressed it up as evaluating whether it serves your political goals, while still reaffirming your ostensible dedication to neutrality. And Kaminer correctly identified this in her piece. And your weak response to her was to falsely claim that she was getting the facts wrong. Kaminer's piece explained in detail how your stated policy and internal guidelines were at conflict, and your only response was to point to your stated policies as if she hadn't noticed them.

Michael Z.

First of all, thank you for this reassertion of your commitments and principles. After reading multiple articles It helps put my mind at ease.

But beyond the admission that “speech can cause harm” ,and no doubt it often does, there is a currently fashionable view, most popular among left-wing academics, that malign speech should be considered comparable to violence, especially when directed at minorities or the underrepresented , due to it’s damaging psychological effects.
And that civil liberties are impeded by the defense of such speech.

Such a view was expressed by John A. Powell previously a national legal director of the A.C.L.U. in a recent New-yorker article (How Social-Media Trolls Turned U.C. Berkeley Into a Free-Speech Circus). Which is what really has me worried.
Does the ACLU still consider free speech an all or nothing issue? That civil liberties would be to be weakened as a whole, for all of us, if the right of free speech were be withdrawn from anyone.

Thank you, again, for your work.

Steven B

I read the WSJ article and this rebuttal.

As a lawyer for over two decades, all I can do is repeat the sentiments of George Carlin shortly before his death - “I never saw it coming from the Left” - and say that it is a sad day indeed to see the self-destructive culture of victimhood that defines “progressive” ideology, which stokes much of the purported “harm” from free speech and has already overtaken public discourse on the college campuses, metastasize into the ACLU - historically the most significant defender of the First Amendment.

Set aside the oft-repeated observation that the efficacy of the First Amendment - by its nature as a check on the violence that a fickle majority can inflict on a minority in a democratic system - lives or dies on whether there are people willing to defend the most unpopular speech. What happened to the notion that the remedy for “harmful” speech is more speech? In considering the effects of subjectively slippery “hate speech” within the contemporary competition of ideas, why is no one asking why the Left is so insecure about the persuasiveness of IT’S counter-messaging? Why have expressions of racial/gender/sexual hatred SUDDENLY (in consideration of U.S. history) become the equivalent of yelling “fire” in a crowded theatre or inciting violence? Why do we care so much that the “speakers” are carrying guns as a deliberate part of their provocation? Could it be the Left’s own commitment to divisive identity politics and opposition to the Second Amendment that is fueling the fire?

Whatever the answers, if we abandon what I see as one of the three bedrock civil rights AND unifying socio-political values of the United States, then we are done as a constitutional democracy.

Anonymous

Please maintain your rigid stance on the free speech. Never back down and defend even the most harmful speech. In fact, defending the most abhorrent organizations is the best way to educate the public on the 1st Amendment.

Anonymous

Many ACLU critics don't understand the fundamental difference between "Voter Issues" versus "Court Issues" in regards to our constitutional rights. Constitutional rights essentially survive in the same boat! We can't cherry-pick only certain amendments to follow, it's a package deal.

If you weaken the "constitutional rule of law" system, it weakens all constitutional rights. It harms 14th Amendmend rights that protects women, African-Americans, LGBT folks, immigrants, etc. but it also weakens 2nd Amendment gun rights and property rights [Eminent Domain]. If portions of the U.S. Constitution are fundamentally flawed or need modernization, there is an amendment process to improve it.

For example: Many Conservatives were nearly silent during the War on Drugs and after 9/11 when the 1st, 4th, 5th 6th, 7th, 8th, 9th, 13th and 14th Amendments were traded for greater security. Conservatives were not only silent but supported violating constitutional rights in exchange for the perception of greater security.

Today since we essentially sunk that "constitutional rule of law" boat (thanks to Conservatives after 9/11), we have essentially dstroyed Eminent Domain property rights. One could easily argue that guns pose a greater threat in a single year than more than 15 years of terrorism threats since 9/11. Once the 2nd Amendment follows the other rights destroyed by Conservatives, what about censoring violent movies, video games, etc?

The point is all of us should be expanding and restoring rights instead of taking away rights. Conservatives should be strongly opposed to torture, Guantanamo, warrantless spying, LGBT discrimination with same zeal as they have for gun rights! If gun rights are destroyed, the Conservatives did it to themselves!

Anonymous

Theres a case in chicago where an old man is being charged with hate crimes for a racist verbal rant against a woman wearing a Puerto Rico tshirt. I havent seen any statements from the ACLU yet. What happens if Trump makes a law that any anti-Trump speech is a hate crime? That's how it begins...

Anonymous

So you'll be defending Alex Jones?

Anonymous

"equality demands require individuals or institutions to limit their speech "

What ACLU.

Anonymous

Why don't you elaborate the actual policy then. You talk resolutely about defending all speech, but then do some shady brushing away about your new guidelines. Changing which cases you will take is a change in policy whether you admit it or not.

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