On Thursday, an internal American Civil Liberties Union memo was leaked to Wendy Kaminer of the Wall Street Journal. In it, ACLU officials detailed their new case selection guidelines.
Free speech advocates and civil libertarians, myself included, have noted that the memo shows the ACLU heading in an increasingly partisan and less principled direction, pandering to their progressive supporters and amid declining support for free speech among leftists, especially the younger generation.
Citing the white supremacist rallies in Charlottesville, Va., in August 2017, the memo discusses the tensions the ACLU has dealt with between their commitment to free speech rights and their work advancing racial justice and reproductive freedom rights. They note that “these conflicts are inevitable. We cannot eliminate them, but we can ensure that we consider them carefully and thoroughly.”
The memo continues: “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.”
On one hand, the memo remains relatively wishy-washy in terms of how these conflicts will be reconciled — of course, conflicts between speech rights and advancement of marginalized groups exist. In order to defend the principle of free speech, you must sometimes defend the speech of odious groups. In order to ensure speech remains largely free of government encroachment, you must vigorously affirm its importance, time and time again, and fight against any governing entity shifting toward policing it more, lest you end up policed, too.
The issue, though, is that the memo establishes new guidelines which look like a shift in a more partisan, less principled direction. They talk about how important it is to “extend the protections embodied in the Bill of Rights to people who have traditionally been denied those rights” but say that “speech that denigrates such groups can inflict serious harms and is intended to and often will impede progress toward equality.”
It absolutely can. But speech rights also ensure that marginalized, radical, and revolutionary groups can continue to advance their causes and missions, no matter how unpopular. Speech rights are what allow modern day Black Panther groups to hold protests and rallies, and what allow anti-war anarchists to introduce their beliefs into the marketplace of ideas — causes leftists should support.
Now, when choosing which speech-related cases to take on, the ACLU will be considering “whether the speaker seeks to engage in or promote violence”; “whether the speaker seeks to carry weapons”; and “the impact of the proposed speech and the impact of its suppression … the potential effect [speech has] on marginalized communities … and the structural and power inequalities in the community in which the speech will occur.” Their defense of gun rights has long been flimsy, and they make the compelling point that the presence of weapons changes one’s ability to engage with a political opponent in the marketplace of ideas — when there’s such an abundant mismatch of force, the unarmed person’s ability to speak could be somewhat chilled by the gun-bearing of their opponent.
Still, this makes civil libertarians wonder: Who will decide which communities are marginalized? Who will dole out judgments on which power inequalities exist, and who will decide how to balance that with defending First Amendment rights? Will this be done responsibly, or is the ACLU backing down from taking the hard cases that protect the principle, even when it’s uncomfortable to do so? Free speech is messy, and it so often involves defending the right on principle, not because you agree with the groups that are speaking. To erode that is to admit that the free speech for everyone isn’t as important as we’d thought and no longer worth protecting.
As Robby Soave writes at Reason, “Unfortunately, young progressives are increasingly hostile to free speech, which they view as synonymous with racist hate speech. Speech that impugns marginalized persons is not speech at all, in their view, but violence.” Soave is likely correct that this is the ACLU’s attempt to keep their base happy. But what they should be doing is reminding lost young leftists that free speech rights protect us all, even when defending them is painful.
This former ACLU donor won’t be giving this year.
Liz Wolfe (@lizzywol) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is managing editor at Young Voices.
