Atlantic: The ACLU has lost its way

(Photo by Chris Pizzello/Invision/AP, File)

A professor at University of San Francisco’s law school wrote a piece for the Atlantic yesterday in which she argued the ACLU has lost its way. Lara Bazelon says she used to be a “card-carrying member” of the group but now she throws their solicitation letters in the trash. Bazelon points to the recent revelations from the Johnny Depp/Amber heard trial as an example of why she has lost respect for the group:

The heart of Depp’s claim is that Heard ruined his acting career when she published a 2018 op-ed in The Washington Post describing herself as “a public figure representing domestic abuse”—a thinly veiled reference to much-publicized accusations of assault she made against Depp in court filings toward the end of their short-lived marriage. But Heard hadn’t pitched the idea to the Post—the ACLU had. Terence Dougherty, the organization’s general counsel, testified via video deposition that after Heard promised to donate $3.5 million to the organization, the ACLU named her an “ambassador on women’s rights with a focus on gender-based violence.” The ACLU had also spearheaded the effort to place the op-ed, and served as Heard’s ghostwriter. When Heard failed to pay up, Dougherty said, the ACLU collected $100,000 from Depp himself, and another $500,000 from a fund connected to Elon Musk, whom Heard dated after the divorce. (The ACLU denies that it would ever request or solicit donations in exchange for ambassadorships or op-eds.)

There is nothing about Heard’s promised donation on this page proclaiming her an ACLU ambassador for women’s rights. The write-up does end by stating “Heard contributed to The Washington Post in a moving 2018 Op-Ed, calling for a change to the repressive stigma facing victims of sexual assault.” But that doesn’t note the ACLU’s involvement in writing the piece.

Meanwhile, the Washington Post identified Heard as “Amber Heard is an actress and ambassador on women’s rights at the American Civil Liberties Union.” No mention of the ACLU’s involvement in pitching and writing the piece and no mention of how Heard became an ambassador for the ACLU.

The ACLU was once best known for defending the free speech rights of anyone, regardless of their politics. But that changed in 2018.

In 2018, following the ACLU’s successful litigation to obtain a permit for white supremacists to march in Charlottesville, Virginia, which ended in death and disaster, the ACLU issued new guidelines. Citing concerns about “limited resources” and “the potential effect on marginalized groups,” the organization cautioned its lawyers to take special care when considering whether to represent groups whose “values are contrary to our values.”…

I don’t look to the ACLU to affirm my beliefs or those of my allies. On the contrary, I look to the ACLU to defend everyone, including my ideological enemies. To do that work, it cannot be beholden to any political party or ideology. Yet in 2018, the ACLU spent $800,000 on a campaign ad for Stacey Abrams during her run for governor in Georgia and $1 million in an attack-ad campaign against Brett Kavanaugh during his Supreme Court confirmation hearings…

…I view the ACLU’s hard-left turn with alarm. It smacks of intolerance and choosing sides, precisely what a civil-liberties organization designed to defend the Bill of Rights is meant to oppose.

Bazelon cites a NY Times story published last year which also pointed to the same shift in the ACLU’s priorities.

It was supposed to be the celebration of a grand career, as the American Civil Liberties Union presented a prestigious award to the longtime lawyer David Goldberger. He had argued one of its most famous cases, defending the free speech rights of Nazis in the 1970s to march in Skokie, Ill., home to many Holocaust survivors.

Mr. Goldberger, now 79, adored the A.C.L.U. But at his celebratory luncheon in 2017, he listened to one speaker after another and felt a growing unease.

A law professor argued that the free speech rights of the far right were not worthy of defense by the A.C.L.U. and that Black people experienced offensive speech far more viscerally than white allies. In the hallway outside, an A.C.L.U. official argued it was perfectly legitimate for his lawyers to decline to defend hate speech.

Mr. Goldberger, a Jew who defended the free speech of those whose views he found repugnant, felt profoundly discouraged.

“I got the sense it was more important for A.C.L.U. staff to identify with clients and progressive causes than to stand on principle,” he said in a recent interview. “Liberals are leaving the First Amendment behind.”

Mr. Goldberger is now well out of the mainstream of left-wing politics regarding free speech. The current view, that speech is tantamount to violence and should be treated as such, seems to be more common among progressive college students. And as those students spread outward into professional jobs they take those views with them. That’s how you wind up with Elon Musk suddenly being treated as the skunk at the garden party for buying Twitter and suggesting it needs to be more supportive of free expression.

To his credit, the ACLU’s executive directory Anthony D. Romero showed a bit of the group’s old respect for free speech in a statement published yesterday about the possibility of restoring President Trump to Twitter:

“You’d be hard-pressed to find a more steadfast opponent of Trump and his policies than the ACLU, but Elon Musk’s decision to re-platform President Trump is the right call. When a handful of individuals possess so much power over the most important forums for political speech, they should exercise that power with restraint. If Trump violates the platform rules again, Twitter should first employ lesser penalties like removing the offending post — rather than banning a political figure.

“Like it or not, President Trump is one of the most important political figures in this country, and the public has a strong interest in hearing his speech. Indeed, some of Trump’s most offensive tweets ended up being critical evidence in lawsuits filed against him and his administration. And we should know — we filed over 400 legal actions against him.”

The ACLU was always left-wing but when it came to free speech at least it showed a commitment to defending everyone’s rights regardless of politics. Yesterday’s statement aside, that is increasingly not how the group operates.