Yesterday the Wall Street Journal pointed out a leaked ACLU memo which outlines the organization’s revised stance toward taking cases involving the First Amendment. The 8-page case selection memo offers guidelines which contain plenty of nuance, but the bottom line is that the ACLU will now think about how First Amendment cases it takes might impact its other social justice priorities before taking them on. From the WSJ:
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.
From the leaked memo, here’s one of the key paragraphs on issues to consider when selecting a free speech case:
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.
Again, this paragraph contains plenty of wiggle-room and some real nuance about the dangers of not choosing to defend a particular person’s (or group’s) speech. However, the context of this nuance is clearly a specific event. The second paragraph of the memo says, “The ACLU’s involvement in the protests and subsequent tragedy in Charlottesville, Virginia in August 2017 brought these issues to the fore once again and prompted these guidelines, first proposed on a nationwide call of the ACLU’s affiliate legal directors.” So the goal here is to give the ACLU new ways to think about First Amendment cases which might make it easier to sidestep cases like the one in Charlottesville for which the ACLU subsequently took so much heat. This is nuance as a smoke-screen.
Two points on this. First, there’s no reason to think the problem in Charlottesville was the ACLU’s defense of the First Amendment. As I noted last August, the ACLU of Virginia said exactly that at the time:
“But let’s be clear: our lawsuit challenging the city to act constitutionally did not cause violence nor did it in any way address the question whether demonstrators could carry sticks or other weapons at the events…
“It is the responsibility of law enforcement to ensure safety of both protesters and counter-protesters. The policing on Saturday was not effective in preventing violence. I was there and brought concerns directly to the secretary of public safety and the head of the Virginia State Police about the way that the barricades in the park limiting access by the arriving demonstrators and the lack of any physical separation of the protesters and counter-protesters on the street were contributing to the potential of violence. They did not respond. In fact, law enforcement was standing passively by, seeming to be waiting for violence to take place, so that they would have grounds to declare an emergency, declare an ‘unlawful assembly’ and clear the area.”
The contentions made by the ACLU at the time were later backed up by a 200-page report prepared by a former U.S. Attorney. That report concluded that law enforcement failures were almost directly responsible for the mayhem that followed, including the death of Heather Heyer. The report even quoted Police Chief Al Thomas saying, “Let them fight,” when scuffles were taking place between racists and counter-protesters. The theory was that by letting fights break out, the police could more quickly declare the entire thing an unlawful assembly and shut it down. What it really did was create a lawless zone and a lot of angry people.
So that’s point one: The police were responsible for the failure in Charlottesville, not the ACLU. Point two is more subtle. The far left has been moving away from the ideas of classical liberalism over the past several years. We see it with Antifa. We see it on college campuses where “no platforming” has become the standard operating procedure for social justice groups. We see it in Silicon Valley where social media companies have begun to police speech more actively.
The far left no longer believes in the First Amendment and says so openly. They denounce “hate speech” as something that should not be allowed anywhere for exactly the same reasons the ACLU memo has outlined, i.e. it is counter to their commitment to social justice. While the ACLU is still a long way from throwing in the towel on free speech, I think this memo indicates that the far left is exerting an influence on the left in general. As the far left moves away from classic liberal values, even the ACLU is beginning to acknowledge that shift, albeit quietly in a memo they asked not be distributed to anyone.