ACLU Likely Won’t Defend Politically Incorrect Speech

From the Wall Street Journal, a description of an internal ACLU document that explains how the ACLU justifies failing to defend speech that offends leftist, politically correct sensibilities:

The American Civil Liberties Union has explicitly endorsed the view that free speech can harm “marginalized” groups by undermining their civil rights. “Speech that denigrates such groups can inflict serious harms and is intended to and often will impede progress toward equality,” the ACLU declares in new guidelines governing case selection and “Conflicts Between Competing Values or Priorities.”

This is presented as an explanation rather than a change of policy, and free-speech advocates know the ACLU has already lost its zeal for vigorously defending the speech it hates. ACLU leaders previously avoided acknowledging that retreat, however, in the apparent hope of preserving its reputation as the nation’s premier champion of the First Amendment.

But traditional free-speech values do not appeal to the ACLU’s increasingly partisan progressive constituency—especially after the 2017 white-supremacist rally in Charlottesville. The Virginia ACLU affiliate rightly represented the rally’s organizers when the city attempted to deny them a permit to assemble. Responding to intense post-Charlottesville criticism, last year the ACLU reconsidered its obligation to represent white-supremacist protesters.

The 2018 guidelines claim that “the ACLU is committed to defending speech rights without regard to whether the views expressed are consistent with or opposed to the ACLU’s core values, priorities and goals.” But directly contradicting that assertion, they also cite as a reason to decline taking a free-speech case “the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values.”

In selecting speech cases to defend, the ACLU will now balance the “impact of the proposed speech and the impact of its suppression.” Factors like the potential effect of the speech on “marginalized communities” and even on “the ACLU’s credibility” could militate against taking a case. Fundraising and communications officials helped formulate the new guidelines.

One half of this balancing test is familiar. The “impact of suppressing speech”—the precedents that suppression might establish, the constitutional principles at stake—is a traditional factor in case selection. But, traditionally, the ACLU has not formally weighed the content of speech and its consistency with ACLU values in deciding whether to defend it.

Tension between competing values isn’t new to the ACLU. Given its decades-old commitment to defending civil rights and liberties, the organization has long navigated conflicts between equality rights and freedoms of religion, speech and association. The guidelines assert that “no civil liberties or civil rights value should automatically be privileged over any other.” But it’s clear that free speech has become second among equals. Where is the comparable set of guidelines explaining when the ACLU should decline to defend gay-rights claims that infringe on religious liberty or women’s-rights cases that infringe on due process?

The speech-case guidelines reflect a demotion of free speech in the ACLU’s hierarchy of values. Their vague references to the “serious harm” to “marginalized” people occasioned by speech can easily include the presumed psychological effects of racist or otherwise hateful speech, which is constitutionally protected but contrary to ACLU values. Faced with perceived conflicts between freedom of speech and “progress toward equality,” the ACLU is likely to choose equality. If the Supreme Court adopted the ACLU’s balancing test, it would greatly expand government power to restrict speech.

In Brandenburg v. Ohio (1969), for example, the ACLU defended the First Amendment rights of a Ku Klux Klan leader prosecuted for addressing a small rally and calling for “revengence” against blacks and Jews. The U.S. Supreme Court reversed Clarence Brandenburg’s conviction, narrowly defining incitement to violence as speech both intended and likely to cause imminent illegal action. Brandenburg made an essential distinction between advocacy and action, which progressives who equate hate speech with actual discrimination or violence seek to erase.

The ACLU would be hard pressed to take Brandenburg’s case today, given its new guidelines. The organization hasn’t yet endorsed a ban on hate speech, or a broader definition of incitement. The guidelines affirm that “speakers have a right to advocate violence.” But even if Brandenburg managed to pass the new balancing test for speech cases, some participants at his rally were armed, and, according to the guidelines, “the ACLU generally will not represent protesters who seek to march while armed.”

All this is the ACLU’s prerogative. Organizations are entitled to revise their values and missions. But they ought to do so openly. The ACLU leadership had apparently hoped to keep its new guidelines secret, even from ACLU members. They’re contained in an internal document deceptively marked, in all caps, “confidential attorney client work product.” I’m told it was distributed to select ACLU officials and board members, who were instructed not to share it. According to my source, the leadership is now investigating the “leak” of its new case-selection guidelines. President Trump might sympathize.

Actually reading the document shows it to be even more mendacious than this article suggests. For example:

The ACLU has also made many other rights priorities, including religious liberty, privacy, autonomy, reproductive freedom, the rights of people with disabilities, and criminal defendants’ rights. In deciding how to use our limited resources, no civil liberties or civil rights value should automatically be privileged over any other. There is no presumption that the First Amendment trumps all other amendments, or vice versa. We recognize that taking a position on one issue can affect our advocacy in other areas and create particular challenges for staff members engaged in that advocacy. For example, a decision by the ACLU to represent a white supremacist group may well undermine relationships with allies or coalition partners, create distrust with particular communities, necessitate the expenditure of resources to mitigate the impact of those harms, make it more difficult to recruit and retain a diverse staff and board across multiple dimensions, and in some circumstances, directly further an agenda that is antithetical to our mission and values and that may inflict harm on listeners.

Of course, for people who believe in free speech, it does trump other issues. It’s called the “preferred position” doctrine, and holds that no other liberties mean much if people aren’t free to speak in support of them.

And if you have free speech, you have a right to “directly further an agenda that is antithetical to [the ACLU’s] mission and values.”

And what kind of “harm” might be “inflicted on listeners?”

The ACLU seems to have adopted the position of intolerant campus snowflakes: that merely hearing opinions with which you differ is a form of “harm.” This, of course, enables a robust heckler’s veto, in which people can stifle speech by merely claiming to have been harmed.

And undermining “relationships with allies or coalition partners” and making it “difficult to recruit and retain a diverse staff and board” simply means we have to be team players. We are leftists, and if defending free speech alienates other leftist groups, we will back off. Of course, the ACLU doesn’t have to be part of a team. And their team could consist of groups that actually favor free speech, like the Foundation for Individual Rights in Education. But in fact, their team is all the usual leftist suspects.

Our defense of speech may have a greater or lesser harmful impact on the equality and justice work to which we are also committed, depending on factors such as the (present and historical) context of the proposed speech; the potential effect on marginalized communities; the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values; and the structural and power inequalities in the community in which the speech will occur.

Translation: if we think speech is harmful to our “justice work” (read: leftist political agenda) we might decide that government can suppress it, and we will stand aside.

Conclusion

The document admits that the ACLU might need to defend unpopular speakers, in order to maintain its own credibility. But it outlines a huge bunch of other considerations that can be “balanced” against free speech. All of these, of course, amount to excuses not to defend speech that the intolerant left does not like.  That is quite a lot of speech.