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