This one's for pacman.
The organization declares that speech it doesn’t like can ‘inflict serious harms’ and ‘impede progress.’
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.
Ms. Kaminer, a former ACLU board member, is author of “Worst Instincts: Cowardice, Conformity and the ACLU” (2009).
The article links to the leaked ACLU document. It is perhaps worth taking them at their own words, if only to verify that Kaminer isn't trying to put a spin on anything. To that end:
"The impact of the proposed speech and the impact of its suppression: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. At the same time, not defending such speech from official suppression may also have harmful impacts, depending on the breadth or viewpoint-based character of the suppression, the precedent that allowing suppression might create for the rights of other speakers, and the impact on the credibility of the ACLU as a staunch and principled defender of free speech. Many of these impacts will be difficult if not impossible to measure, and none of them should be dispositive. But as an organization equally committed to free speech and equality, we should make every effort to consider the consequences of our actions, for constitutional law, for the community in which the speech will occur, and for the speaker and others whose speech might be suppressed in the future."
What's notable here is how progressive the ACLU sounds even when talking to its own people. The term "white supremacy", or some derivation thereof, is found four times. Evidently they are not interested in giving examples of any other kinds of speech that may not warrant a defense. "Equality" appears ten times, and always in the unmistakable cadence that informs the reader that we're not talking about "equality before the law" so much as "equality of outcome". "Racial justice", not to be confused with social justice, gets seven mentions by my count, with at least one in reference to the ACLU's Racial Justice Project. In forwarding "racial justice" and combating "inequality", the ACLU concerns itself with, among other things, that most sinister of all buzzwords: "implicit bias". "Reproductive freedom" is acknowledged multiple times, while firearms only come up as part of a reminder that the ACLU is not interested in defending armed speech. If for whatever reason you don't think it's conspicuous that the ACLU would not consider the right to bear arms as foundational to their mission then you may well be of the political persuasion to conclude that they are precisely as dispassionate and nonpartisan as they claim. The rest of us, however, will reasonably come to the conclusion that the ACLU may only defend our rights after they "mitigate any harm to [the] mission" by "Denouncing the views in press statements, op-eds, social media, and other available fora."
I don't envy the tightrope that the ACLU finds itself balancing on, and I wouldn't try to deny the value of the work that they've done over the years. But if the ACLU, in its modern quest to advance nationalized health care, the enfranchisement of "undocumented immigrants", abortion, and whatever the "LGBT" political movement (not to mention the acronym) has metastasized into next, is going to wring their hands over speech that may have a "harmful impact" on "marginalized communities" then it is time to start worrying that that they may be compromised. Time will tell.