The ACLU uncompromisingly defends free speech — unless it’s offensive.

Why is everybody so down on the poor old ACLU just because of an internal memo proclaiming its zealous defense of free speech unless it offends vulnerable and marginalized minorities?  Even the NY Post joined the affray, moaning, “ACLU Stops Caring About Free Speech!”

Let’s be reasonable. Do you blame the buggy-whip manufacturers for switching to a different product when the horseless carriage took over? Do you make a scene at Rite-Aid because they no longer develop film?  Wake up and smell the coffee! Why shouldn’t the ACLU change with the times and don the robe and crown of the social justice warrior, now that free speech has gone the way of the dodo and the typewriter ribbon?

The deal with the First Amendment is that the government can’t restrict expression based on disagreement with the message.  You can be prosecuted for falsely shouting “Fire!” in a crowded theater or downloading porn involving real children, but not for the mere content of your ideas.

So eyebrows are raised when the ACLU memo’s very first paragraph worries about what to do when “the content of the speech we seek to protect conflicts with our policies on these matters” (emphasis added). Policies such as opposition to “white supremacy” and “bigotry and oppression against other marginalized groups,” such as women, LGBT’s, the disabled,  etc. and “the empowerment of people of color.”  The ACLU “understands that speech that denigrates such groups can inflict serious harms” and impedes “progress toward equality.”

Very noble, but isn’t the ACLU known for defending unpopular speech? Neo-Nazis marching in a Jewish neighborhood and things like that? Not any more, apparently. After all, the memo sniffs, “the ACLU as a private organization has a First Amendment right to act according to its own principles, organizational needs, and priorities.” According to the memo, they’re not going to defend a white supremacist group if doing so would piss off the ACLU’s “allies.”

So they now consider the following factors in deciding whether to defend persons being prosecuted for exercising their First Amendment rights:

  • The impact of the disfavored speech/expression “on the equality and justice work to which we are also committed.”
  • The speech’s potentially bad effect on marginalized communities.
  • Whether the speech helps white supremacists or others “whose views are contrary to our values.”

Every few paragraphs, they toss in some jive about how the ACLU’s commitment to neutral principles of free speech remains unchanged. Say what?  It’s like Marc Antony’s repeated assurances that “Brutus is an honorable man,” in a speech that conveys exactly the opposite. The crowd wasn’t fooled.

And if the ACLU finds that not  defending some oppressor of the marginalized might “impact on the credibility of the ACLU as a staunch and principled defender of free speech,” they reserve the right to make up for it by condemning and denouncing his cause “in press statements, op-eds, social media and other available fora,” participate in counter-demonstrations, and organize events and projects condemning those views, paid for by the fees they earn from defending him.

The memo explains, “We generally should not agree to represent people who will not agree to sign an ethically appropriate advance waiver of potential conflicts arising from our condemnation of their views.”

That must do a lot for the attorney-client relationship. Imagine you’re being prosecuted for heckling at a high school gun control rally and the first thing your ACLU lawyer does is have you sign an ethically appropriate waiver allowing her to organize events and counter-demonstrations and condemn your views in op-eds, social media and other fora.

“In other words,” says former director Ira Glasser, “the ACLU now advises its affiliates to consider the content of speech, and whether it advances our goals, before deciding whether to defend the right to speak. That is a balance never before recognized by the ACLU in deciding whether to take a free speech case. To deny that this is a departure from free speech policy is intellectually dishonest, an Orwellian smokescreen thrown up to obscure what they are doing.”

He’s probably still looking for a typewriter ribbon.

Irrelevant Postscript: List of “Most Visited” Articles from Reason Magazine.

  1. Leaked Internal Memo Reveals the ACLU Is Wavering on Free Speech.
  2. Huge Win for Everyone with a Cellphone (and for the 4th Amendment) at the Supreme Court.
  3. Immigration Hardliners Lose Today in an 8-1 Supreme Court Ruling.
  4. 13-year Old Charged with Felony for Recording Conversation with School Principal.
  5. We Are Most Likely Alone in the Universe.


About Appellate Squawk

A satirical blog for criminal defense lawyers and their friends who won't give up without a squawk.
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9 Responses to The ACLU uncompromisingly defends free speech — unless it’s offensive.

  1. Wasserman, Roy says:

    Are you changing with the times too by straying from your core mission of critiquing appellate courts? 😊 I’ve been a lifelong member of ACLU for over 40 years. They’ve never been absolutist. Historically they have picked and chosen their cases strategically. (See e.g., RBG film) There are others who can and do represent offensive speakers who the ACLU chooses not to. They’re not stupid. After Skokie in the late 70’s , I recall the org. losing a huge % of their funding and members. I was one of many Jews who thought they were right to have litigated on behalf of Nazi marchers. But they learned a lot about who they were as an org. In the Trump era, can the ACLU really afford to be seen as doing the bidding for the speech rights of the bigoted folks now in power? Couldn’t the argument be made that Skokie was about defending fringe and unpopular views? Today those ideas are less fringe and less unpopular. In fact, one could argue that today’s racist, anti-Sem, misogynistic speech is main stream and that it’s prevalence proves that it no longer needs a vigilant defense from the preeminent defender of speech. ACLU has limited resources. Let them defend cases from unpopular people. I think one could argue that some of today’s bigotry IS equivalent to yelling “Fire” in a movie theatre. (See Charlottesville, see Trump rallies that got violent, and consider damage to the Truth and thus a healthy democracy. ). Given the org’s prominence for 100 years as THE First Anend. defender , I totally share your concern. But consider that they have never taken every case that comes before them. We live in quite dangerous times. Free speech for Trumpers is not exactly a problem today. One has to consider the unusual era in which we are living precariously. The true threat to democracy today is Trump himself, and the cult of his followers. The repeated ugly content of their messaging is 24/7. Deciding not to take a particular case because the content of the speakers erodes our democracy and the rights therein (including the bill of rights that ACLU is devoted to), I think is defensible. Your view and Ira Glasser’s is understandable. But I think it is overly simple and possibly and ultimately self-defeating.

    Food for thought: should yelling fire, child porn, and defamation be considered more dangerous or more deserving of exception to 1st Amen protection than pure bigoted hate?

    Sent from my iPhone


    • Nemo says:


      The ACLU changed its principles and claimed it didn’t.

      Criticizing one’s own is a virtue, not a vice.

      The time to stand by your principle is when doing so is hard.

      There is no one who can wreak misery like well-intentioned people with a cause.

      The true threat to our republic is the collective of people who have abandoned our established principles in favor of “getting Trump”. As bad as Trump is, and he’s already a good candidate for membership in the circle of the worst presidents, those people are worse. They are willing to destroy our principles in order to destroy Trump. When Trump is gone, replaced by another, (presumably better) president, the principles will still be destroyed.

      These points are also food for thought.




  2. Roy – we both work for an outfit where political correctness and identity politics rule. Our organization is in the same danger as the ACLU of indulging in a lot of sanctimonious chin music about “vulnerable and marginalized” groups at the expense of doing our job of defending vulnerable constitutional rights. As a highly experienced attorney, you zealously defend murderers, child rapists and other guilty people, not because you support murder or rape but out of your commitment to fairness and due process. Same with the ACLU. Defending the speech rights of bigots isn’t defending bigotry. Of course they can’t take every case, but it’s shocking that their choice depends on whether the speech offends blacks, women, gays, etc. who are just as capable as anyone of bullying others into silence.

    Liked by 1 person

  3. adrianlesher says:

    I have enjoyed your commentary over the years, but I find that your blog has turned to more and more knee-jerk “anti-poltical-correctness” conservatism. The ACLU does not have limited resources, and could easily be trolled into representing every Promise Keeper and neo-fascist to the exclusion of representing more worthy targets. The ACLU already represented the neo-fascists who marched in Charlottesville, and apparently board members felt some complicity when Heather Heyer.was murdered during those protests. As we see fascist tendencies more and more ascendant in this country and the world, how much energy should progressive institutions put into helping them grow? On another point, I would submit that the Koch and Scaife funders of Reason magazine have a certain selective interest in free speech.


    • Scott Jacobs says:

      “and apparently board members felt some complicity when Heather Heyer.was murdered during those protests.”

      So their feelings trump their commitment to civil liberties. Interesting.

      “I would submit that the Koch and Scaife funders of Reason magazine have a certain selective interest in free speech.”

      Yeah, those horrible Koch brothers, supporting drug legalization, gay marriage, and like half of the stuff PBS airs. What a buncha jerks.


  4. Anybody can (and should) criticize Trump’s idiocies, but we choose to satirize the Left because that’s what we know and care about. In the office where we both work, mindless identity politics are tearing us apart. When the head of the organization purports to settle a heated office-wide discussion about “Masterpiece Cakeshop” with the stunningly irrelevant comment that the problems of nonwhite transgenders are more important than those of white gay males, you know we’ve hit a new low.
    You may have overlooked that the list of Reason articles is funny :).

    Liked by 1 person

  5. adrianlesher says:

    I don’t think I got it. Here are some observations I just came across on the idea of liberal societies needing to protect themselves from intolerant ideas:

    “Less well known is the paradox of tolerance: Unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them. — In this formulation, I do not imply, for instance, that we should always suppress the utterance of intolerant philosophies; as long as we can counter them by rational argument and keep them in check by public opinion, suppression would certainly be unwise. But we should claim the right to suppress them if necessary even by force; for it may easily turn out that they are not prepared to meet us on the level of rational argument, but begin by denouncing all argument; they may forbid their followers to listen to rational argument, because it is deceptive, and teach them to answer arguments by the use of their fists or pistols. We should therefore claim, in the name of tolerance, the right not to tolerate the intolerant.” Karl Popper in “The Open Society and Its Enemies,” quoted on Heather “Digby” Parton’s Hullaballoo blog.

    “While an intolerant sect does not itself have title to complain of intolerance, its freedom should be restricted only when the tolerant sincerely and with reason believe that their own security and that of the institutions of liberty are in danger.” John Rawls in “The Theory of Justice,” also quoted in the same blog.


    • So why is “progressive” intolerance acceptable? Who got a Jewish lawyer in your office fired for saying transgenderism is against his religion? Who yells “white privilege!” at their own colleagues on the email when they say something they disagree with? Who orchestrated an “investigation” of this blog, which we’re informed will result in sanctions against us? No doubt there are worse things being done by Trumpists, but our concern is with what we see for ourselves that nobody dares to question.


    • Scott Jacobs says:

      “But we should claim the right to suppress them if necessary even by force; for it may easily turn out that they are not prepared to meet us on the level of rational argument, but begin by denouncing all argument”

      How convenient that you then immediately claim the side you don’t like is “not prepared to meet [you] on the level of rational argument” and then go about suppressing the opinion you don’t like.

      Forgive me if I remain true to my principles, since they are in fact principles and thus not abandoned when they become inconvenient.


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