by Benjamin Schwarz and Jon Zobenica
United States Free Speech Union, 9 February 2022
Almost twenty years ago, the satirical newspaper The Onion ran a story with the headline, “ACLU Defends Nazis’ Right to Burn Down ACLU Headquarters.” It was reductio ad absurdum for a laugh—the humor residing in the fact that it was only, say, a quarter of a turn past what the American Civil Liberties Union would really consider doing.
Many over the years have accused the ACLU of making a virtue out of practicing a kind of reductio ad absurdum in reverse, by not only defending the rights of the most marginal and often despised one percent among us but also insisting that those rights be honored by the rest of us, the 99 percent whose opinions on that one percent typically range from indifference to hostility. But the ACLU has done so on the principle that it is vital to defend the freedoms and rights of even the most repugnant, lest the very repugnance of such people confuse us into committing self-sabotage on our own freedoms and rights, which are inescapably the same freedoms and rights. Were we to make them situational, contingent upon popularity, those freedoms and rights (our own and everyone’s) would start to erode—gradually, then suddenly (to quote Hemingway).
For most of its 102-year history, the ACLU has relentlessly pursued this basic program. The organization originated to defend the rights of conscientious objectors to America’s involvement in the First World War—some of them committed communists and anarchists, accused of having distributed seditious literature with the intent of stymieing the war effort. The ACLU joined the fight to defend the much abused due-process rights of the Scottsboro Boys, and asserted the right of Clarence Earl Gideon (later of Gideon’s Trumpet fame) to legal representation and therefore a fair trial. In the 1940s the organization documented the universally shameful, usually illegal, and often bloody persecution of a despised religious minority, the Jehovah’s Witnesses, and defended the Witnesses’ rights to refuse to salute the flag and to proselytize—and oppose war—in the public square. The organization has supported both a woman’s right to choose an abortion and the rights of anti-abortion protesters to demonstrate (many would say in an offensively provocative manner) outside abortion clinics. It has defended gay rights and successfully opposed a New York City government mandate that the St. Patrick’s Day parade had to be open to gay groups (on the solid grounds that to deny a permit to a parade because of its expressive content violates the First Amendment). It has stood against high schools banning students from wearing pro-gay t-shirts; it has stood against high schools banning students from wearing anti-gay t-shirts. In perhaps its most infamous case, it defended the Nazis’ right to hold a rally in the heavily Jewish Chicago suburb of Skokie (the inspiration for that Onion article).
When citizens of Japanese ancestry were being uprooted from the West Coast during the Second World War and confined to concentration camps in America’s interior, West Coast affiliates of the ACLU—somewhat in conflict with the organization’s national headquarters back east—sought test cases to assert the illegality of incarcerating people strictly on the basis of race and ethnicity, and in the absence of any demonstrable criminal activity on the part of the incarcerated. The efforts of the ACLU affiliates proved quixotic, though history—and President Ronald Reagan—ultimately vindicated those efforts, on exactly the grounds the ACLU affiliates had asserted more than forty years prior.
The affiliates’ work on behalf of mistreated Japanese citizens highlights the ACLU’s commitment to the everyday protection of people’s rights on the local level. For all of the organization’s high-profile defenses (a few of them cited above), and for all the national attention the organization has garnered, the bulk of its work has been devoted to people mostly unknown to history, involving cases, innumerable and small, that were adjudicated with little or no attention, but with utmost dedication on the part of ACLU representatives.
So thorough and principled was the organization’s commitment to individual rights and freedoms that when General Douglas MacArthur needed to create a civil society almost from scratch in war-flattened Japan in the late 1940s, he turned for help to none other than ACLU cofounder and inaugural executive director Roger Baldwin. Of Baldwin MacArthur had this to say:
Roger Baldwin’s crusade for civil liberties has had a profound and beneficial influence on the course of American progress. With countless individuals finding protection in the nobility of the cause he has long espoused, he stands out as one of the architects of our cherished American way of life.
That the ACLU had zealously defended the rights of those who resisted America’s entry into the First World War and that Baldwin himself had gone to prison for refusing to register for the draft during that war obviously didn’t diminish the esteem that MacArthur—who in combat on the Western Front was awarded the Distinguished Service Cross twice and the Silver Star seven times—held for that principled organization and its founder.
More recently, however, some have argued that the ACLU’s commitment to free speech has become worrisomely situational, influenced as much by the organization’s dedication to progressive advocacy as by its viewpoint-neutral adherence to constitutional principles. The ACLU’s own case-selection guidelines reveal the organization’s attempt to square this circle:
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.
“In other words,” as former ACLU executive director Ira Glasser put it recently on Real Time With Bill Maher, when lamenting what he sees as the organization’s current drift, “before they’re gonna defend your free speech, they wanna see what you say. That’s the ACLU? No, that’s the government. What is the ACLU doing saying that?” In reference to the concern about defending speech that may be “contrary” to the organization’s values, Maher pointed out that in the Skokie case the Nazis’ values obviously didn’t reflect Glasser’s or the ACLU’s. Glasser replied that in fact most of the speech that the organization defended in his long tenure didn’t jibe with the ACLU’s values. “That’s the point,” he stressed.
In addition to citing “structural and power inequalities,” the case-selection document elsewhere invokes “deep-rooted institutional biases that continue to reify inequality” and asserts that “Each affiliate should give the empowerment of all people of color within their community the highest priority.” Valid as such concerns and priorities may be, they seem to betray a suspicion of, or at least pessimism toward, the very constitutional precepts on which civil libertarians must rely in order to protect the rights of all individuals. Such suspicion or pessimism perhaps informs the following remark made by Dennis Parker, onetime head of the ACLU’s Racial Justice program (he left the organization in 2018): “First Amendment protections are disproportionately enjoyed by people of power and privilege.”
It does indeed suggest a dilemma if an organization dedicated to the defense and perpetuation of America’s founding principles sees in one of those very principles not explicit freedoms granted equally to all but, instead, inherent bias and the perpetuation of power and privilege for the few. Fortunately, it is not at all clear that the ACLU, institutionally, takes such a view. The organization is something of a loose confederation of affiliates and does not presume to speak with one voice. Accordingly, David Cole, the ACLU’s national legal director, responded to Mr. Parker’s remark by noting (as quoted in The New York Times): “Everything that Black Lives Matter does is possible because of the First Amendment.”
Yet that same New York Times article, from June 6, 2021, reveals developments even more worrisome than the ACLU’s apparently wavering commitment to the defense of free speech. It’s one thing to opt out of such a defense in select cases, owing to conflicts with other of the organization’s explicit goals. It’s another thing entirely to advocate censorship, as one of the ACLU’s staff attorneys, Chase Strangio, did in a tweet on November 13, 2020. In response to the publication of Abigail Shrier’s book Irreversible Damage: The Transgender Craze Seducing Our Daughters, Strangio tweeted: “Also stopping the circulation of this book and these ideas is 100% a hill I will die on.”
It would normally be inapt if not gauche to point out that Strangio himself is transgender. His gender status should be no more relevant in this matter than was ACLU attorney David Goldberger’s Jewishness when he successfully defended the Nazis’ right to march in Skokie. But it would seem that only intensely personal feelings on transgender matters could explain how a civil-liberties attorney could so completely abandon any pretense of objectivity in this case—including his recourse to Nathan Hale tones when expressing his commitment to censorship and suppression. That an attorney holding such views remains in good standing at the ACLU suggests a decided shift in the organization’s priorities.
Would that it were the only shift. As the Times also noted, during the Brett Kavanaugh Supreme Court confirmation hearings, in 2018, the ACLU—which had so long and so consistently stood up for the rights of the accused and the presumption of innocence—ran an ad that (as nearly as it could within defamation laws) found Kavanaugh guilty in the face of mere allegations (however numerous) of sexual misconduct. For an organization that helped defend the Scottsboro Boys’ rights of due process when confronted with allegations of rape to rely on a simple formula of “believe women” suggests another decided shift in the organization’s priorities.
The Kavanaugh ad solemnly notes: “The ACLU doesn’t support or oppose candidates to political or judicial office. We’ve made a rare exception. Brett Kavanaugh isn’t fit to serve. We’ll get as loud [as] we have to for our opposition to be heard.” This gambit of doing something you stress you don’t do, because, says you, circumstances give you no other choice is unworthy of its presumed solemnity. Fortunately, it’s something one can credibly attempt only once, if that. Let the supposed exception start to look more like a rule, and all claims to be above the fray quickly collapse.
But as the Times notes, that same year, 2018, the ACLU entered the fray again, pouring “$800,000 into what looked like a campaign ad for Stacey Abrams during her bid for governor of Georgia—a questionable move for a nonprofit organization that calls itself nonpartisan.” That the ACLU indulged in partisanship not once, in a “rare exception,” but twice in the same year suggests yet another shift in the organization’s priorities.
We at the United States Free Speech Union unequivocally recognize that where defense of the First Amendment is concerned, the ACLU is the giant on whose shoulders we are standing. Any free-speech organization must recognize the tremendous debt we all owe to the century’s worth of work already accomplished by the ACLU in this regard—while also saluting the ACLU’s laudatory ongoing work in this same vein, whatever the organization’s case-selection criteria. Any defense of free speech is good, no matter the qualified reasons for mounting that defense.
Moreover, we find it a bit rich that some on the political right indict the ACLU with betraying its principled adherence to free speech in pursuit of a politically progressive agenda. After all, but for a few honorable exceptions, conservatives have been at best uninterested in and at worst hostile to the ACLU’s stand throughout its history on behalf of the civil liberties and free-speech rights of all Americans. Too many on the right who now find it advantageous to embrace free speech seem to have forgotten that a principled commitment to free expression has, historically, hardly been a salient feature of their agenda. They should recall that William F. Buckley’s God and Man at Yale—the publication of which “marked the birth of the modern conservative movement,” as the historian of conservatism Lee Edwards rightly asserts—is nothing less than a manifesto against freedom of expression, open-mindedness, and academic freedom, and for the proposition that teaching and scholarship (at Yale and similar universities) should be restricted to those who adhere to specific and—by Buckley’s lights—politically, economically, and religiously correct dogma. They should also recall that in 1984—decades before the ACLU could possibly have succumbed to wokeism—President Ronald Reagan bragged that he wore the ACLU’s criticism as “a badge of honor,” and that four years later, his Vice President, George H.W. Bush, sneered that being “a card-carrying member of the ACLU” was a disqualifying credential for the Presidency.
Furthermore, since its founding the ACLU has energetically defended not just free-speech rights but the fundamental equality rights of all people, which in practice has meant especially advancing the rights of racial minorities, women, and members of other traditionally oppressed groups. As Nadine Strossen, the ACLU’s president from 1991 to 2008, explained the organization’s role: “Just as the right to march in a peaceful demonstration does not become a Nazi right when asserted by Nazis, so too the right to be free from discrimination does not become a special right of minorities, women, lesbians, or gay men, just because these constituencies struggle to secure it.” So, given that a progressive political agenda will stress the rights of groups regarded as subjugated (however defined), there would, perforce, be substantial overlap between that progressive agenda and a civil-liberties agenda pursued by such organizations as the ACLU. We’ll leave it to others to decide whether, in the case of the ACLU, the former agenda has subsumed and thereby contorted the latter.
Being an organization with—as our name implies—a narrower remit than that of the ACLU, we are dedicated to the nearly unqualified defense of free speech, viewing its abridgment anywhere as a threat to speech everywhere. The urge to abridge, suppress, chill, or outright censor speech is often rooted in a beguiling sense of nobility, the perceived nobility rising to heights all the more windswept when the speech in question is perceived (perhaps accurately) to be low and mean. Aside from conflicting with the First Amendment, however, any precedent establishing the de facto or de jure abridgment, suppression, etc., of speech becomes a potential menace to us all—not least to those initially in favor of such abridgment. As Ira Glasser remarked almost thirty years ago: “Laws that restrict speech are an abomination, for a very simple reason: They’re like poison gas. They seem to be a good weapon to vanquish your enemy, but the wind has a way of shifting.”
Wittingly or not, Glasser was echoing sentiments expressed by Supreme Court Justice Owen J. Roberts in his impassioned dissent in Korematsu v. United States, one of the ACLU’s losing efforts to contest the legality of incarcerating Japanese American citizens during the Second World War. Roberts not only stressed the appalling basis for the incarceration itself but also warned of the “far more subtle blow to liberty” that came with the Supreme Court’s legal sanction of such an undertaking, sanction that made so dubious a precedent into a kind of legal principle. “The principle then lies about like a loaded weapon,” Roberts continued, “ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.”
No matter how dangerous we may consider certain words, certain views, certain sentiments, the urge to suppress them—no matter how noble it may feel—is far more dangerous, to us all. The U.S. Free Speech Union is categorically dedicated to opposing not only such suppression but also the blow to liberty that comes with normalizing such suppression.
In his recent appearance on Real Time With Bill Maher, Glasser recognized the ACLU’s perfect right to become “more of a political, partisan . . . progressive organization.” But, he went on, the concern is that there is no other ACLU, and if no one else commits to the pure, nonpartisan defense of free speech, “then the government gets to decide who can speak, and that’s the most dangerous thing of all.”
We agree wholeheartedly with Mr. Glasser.