David Cole, the American Civil Liberties Union’s national legal director, tells New York Times readers they shouldn’t “lose faith in the First Amendment.” Although Cole’s op-ed piece is explicitly directed at “liberals or progressives,” it can also be read as an oblique rejoinder to libertarians and conservatives who worry that the ACLU itself has lost faith in the First Amendment.
That concern is not new. Back in 1990, Reason published a cover story in which Charles Oliver argued that the ACLU’s commitment to freedom of speech had been compromised by its pursuit of progressive causes. “In recent years,” he wrote, “the ACLU has adopted an expansive definition of ‘civil liberties’ that dilutes its absolutist commitment to free speech. The ACLU, critics say, is now more committed to goals such as comparable worth, government aid to the homeless, and nuclear disarmament than to defending the First Amendment.” Oliver noted that critics, including longtime ACLU members such as Nat Hentoff and Alan Dershowitz, were complaining that “greed and left-wing ideology have corrupted the union,” which had “diluted its message, compromised its mission, and, in some instances, abandoned its commitment to the First Amendment.”
Nearly three decades later, the argument about the ACLU’s support for freedom of speech continues, which tells us two things: The organization is still divided on the question, and the stalwarts are influential enough that the ACLU is still willing to defend the First Amendment rights of people who offend progressives.
As Robby Soave noted in June, the latest evidence of internal qualms about free speech is a staff memo revealed by Wendy Kaminer, a former member of the ACLU’s national board, that says the organization’s lawyers, in selecting First Amendment cases, should consider the impact of speech on “other values advanced by the ACLU,” such as equality and racial justice. While the memo repeatedly affirms the ACLU’s commitment to defending speakers whose views its members find repugnant, the very idea that the organization’s goals conflict with each other is a license to prioritize some of those “other values” over freedom of speech. “In deciding how to use our limited resources,” the memo says, “no civil liberties or civil rights value should automatically be privileged over any other. There is no presumption that the First Amendment trumps all other amendments, or vice versa.”
The assumption that the “rights” defended by the ACLU inevitably conflict with each other is not only troubling but incoherent, since the whole point of rights is to avoid conflict by delineating each person’s legally enforceable claims. If one person has a right to spout racist bile, it cannot be true that another person has a right to silence him. Yet the memo implies that freedom of speech conflicts with other rights. “Speech that denigrates [marginalized] groups can inflict serious harms,” it says, “and is intended to and often will impede progress toward equality.” It is not hard to see why such loose, compromise-inviting talk bothers critics like Kaminer and former ACLU Executive Director Ira Glasser.
Cole’s response to Kaminer reaffirmed “our commitment to defending speech with which we disagree,” but it also repeated the memo’s thesis that First Amendment cases can “pose conflicts between our values.” In his New York Times piece, Cole argues that the ACLU still takes a viewpoint-neutral approach to First Amendment cases:
In just the last year or so, my organization…has invoked the First Amendment to defend high school students disciplined for walking out from school to call for gun control, as well as other students penalized for posting pictures of guns on social media; a student newspaper denied funding after publishing a satire of “safe spaces,” as well as fans of a hip-hop band labeled gang members; Milo Yiannopoulos and the animal rights group People for the Ethical Treatment of Animals, both of whom were denied permission to advertise on the subway by the Washington Metro Authority; and anti-Trump as well as pro-Trump demonstrators. We’ve defended flag desecraters, union organizers, and citizens blocked from their representatives’ Facebook sites for their criticism.
Cole wants progressives to understand the value of this approach, which defends a principle that is useful to the left as well as the right. “When the Roberts court ruled that the First Amendment prohibited holding the Westboro Baptist Church liable for displaying anti-gay signs outside a military funeral,” he writes, “its rationale would equally protect Revolutionary Communist Party demonstrators holding anti-Christian signs outside the Westboro Baptist Church.”
Cole rebuts the idea that neutrality is suspect because it favors the rich and powerful. Actually, he says, “the First Amendment favors people without power and influence. In a democracy, the rich and those in the majority don’t need constitutional protections; they can generally enact their desires through ordinary political processes. The targets of censorship are typically dissidents, outsiders, the marginalized.”
All of this is good to hear from the ACLU’s national legal director, although Cole’s defense of the First Amendment is purely instrumental. He says progressives should support freedom of speech because it helps advance their goals, not because using force to silence offensive speakers is unjust or immoral.
That omission may just mean Cole knows his audience. “The fact that conservatives benefit from the First Amendment is not something to bemoan,” he says. “It is part of the constitutional bargain.” Cole does not assume that so-called liberals will understand there is a principle at stake here, or even what a principle means. That would indeed be a dangerous assumption, judging from the grumbling within his own organization about the freedom that white supremacists and other unsavory characters enjoy under the First Amendment. While Cole’s defense of free speech is encouraging, the need for it is depressing.
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