ACLU's David Cole Responds About ACLU and the Freedom of Speech

I’ve been traveling with family, so I haven’t been able to focus on many interesting stories in the news; one that I’ve heard about, but couldn’t look into closely, involves Wendy Kaminer’s (paywalled) Wall Street Journal article titled, “The ACLU Retreats From Free Expression.” (Kaminer is a former ACLU board member who has in recent years sharply criticized the ACLU for, among other things, lessening its commitment to protecting free speech) The article discusses this ACLU document called ACLU Case Selection Guidelines: Conflicts Between Competing Values or Priorities; here’s an excerpt, as quoted in Robby Soave’s post here at Reason:

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 documentdeceptively 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.

As I’ve mentioned, I haven’t been able to investigate this closely enough to evaluate the criticism for myself, but David Cole, the ACLU’s National Legal Director, passed along this response, which I’m delighted to publish:

The ACLU’s Continuing Commitment to Defending the Speech We Hate

By David Cole

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, DC 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.

Naturally, I’d be delighted to publish any response in turn from Wendy Kaminer; and of course our readers can review the ACLU document for themselves.