ACLU secretly demotes free speech [UPDATED AND REVISED]

The left bailed on free speech a while back. Everyone who has been paying attention knows this.

Less widely known is that the ACLU seems to be bailing too. So argues Wendy Kaminer, a former board member, in the Wall Street Journal.

Kaminer reports on new ACLU guidelines governing case selection and “Conflicts Between Competing Values or Priorities.” According to Kaminer, the guidelines are contained in a secret, internal document that wasn’t to be seen even by ACLU members. It was distributed to select ACLU officials and board members, who were instructed not to share it.

As portrayed by Kaminer, the guidelines suggest that, for today’s ACLU, free speech is just another “competing value or priority” to be balanced against others. Per the guidelines, 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, according to Kaniner’s sources. These officials understand that free speech values do not appeal to the ACLU’s increasingly partisan leftist constituency, especially after the 2017 rally in Charlottesville.

Consistent with its proud tradition, the ACLU, via its Virginia affiliate, courageously represented the rally’s organizers when Charlottesville attempted to deny them a permit to assemble. As a result, the ACLU took intense criticism from the left. The new guidelines seem designed to ensure that nothing like this happens to the ACLU again.

Kaminer says:

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.

Expansion of government power to restrict politically incorrect speech has become a priority for the left. It’s not a priority for the ACLU, but how committed is that once-admirable organization to that expansion? Kaminer’s account suggests that the ACLU sees no future in standing in the way.

UPDATE: The ACLU has pushed back against Kaminer’s report. Its National Legal Director, David Cole, argues that his organization is still committed to defending speech it hates. Nadine Strossen, a former president of the ACLU, also disputes the thrust of Kaminer’s article.

However, Ira Glasser, a former executive director of the ACLU, takes Kaminer’s side. He writes:

[T]he ACLU now advises all its affiliates to consider the content of speech, and whether it advances our goals, before deciding whether to defend the right to speak.

That is a balance never before recognized by the ACLU as legitimate in deciding whether to take a free speech case. To deny that this departure from free speech policy is a departure is intellectually dishonest, an Orwellian smokescreen thrown up to obscure what they are doing.

And that, it seems, is why they tried to hide the new guidelines, even claiming, absurdly, that they were protected by the lawyer-client privilege. To say now, after the guidelines were disclosed by others, that they have nothing to hide rings hollow.

My question is: where is the ACLU Board, which is supposed to be the guardian of its policies. Did the Board vote to approve this policy departure?

All of these views are collected by Eugene Volokh here.

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