Free speech absolutism has always been a tactical position for the ACLU.
As its co-founder put it, “ I champion civil liberty as the best of the non-violent means of building the power on which workers rule must be based. If I aid the reactionaries to get free speech now and then, if I go outside the class struggle to fight against censorship, it is only because those liberties help to create a more hospitable atmosphere for working class liberties. The class struggle is the central conflict of the world; all others are incidental.”
“When that power of the working class is once achieved, as it has been only in the Soviet Union, I am for maintaining it by any means whatever. Dictatorship is the obvious means in a world of enemies at home and abroad… I saw in the Soviet Union many opponents of the regime. I visited a dozen prisons — the political sections among them. I saw considerable of the work of the OGPU. I heard a good many stories of severity, even of brutality, and many of them from the victims. While I sympathized with personal distress I just could not bring myself to get excited over the suppression of opposition…”
So the ACLU, like the rest of the left, is just taking off the mask. And yet it’s significant that the leftist organization most associated with defending the First Amendment, which used to defend the freedom of expression of Neo-Nazis, is jettisoning all that.
In secretive guidelines that were revealed this week in a Wall Street Journal opinion piece by former ACLU board member Wendy Kaminer, the liberal organization initially claimed it wanted to advance “neutral principles” that protect speech “irrespective of the political speaker’s particular political views.”
The memo, which was marked “confidential attorney client work product,” went on to outline numerous “considerations” that sharply qualified the ACLU’s supposedly neutral commitment to free speech.
And the leaked document said the organization needed to consider the effect of speech on “marginalized communities” and “the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values.”
Specifically… from the memo….
The ACLU is the premier defender of the Bill of Rights and works on multiple civil liberties and civil rights issues, using an integrated advocacy approach that includes litigation, communications, grassroots activism, and policy advocacy. Our position in one area can sometimes present a conflict with our work and goals in another area. Work to protect speech rights may raise tensions with racial justice, reproductive freedom, or a myriad of other rights, where the content of the speech we seek to protect conflicts with our policies on those matters, and/or otherwise is directed at menacing vulnerable groups or individuals. At the same time, work to advance equality may create tensions with speech and religious liberty, where equality demands require individuals or institutions to limit their speech or to act in ways that contradict their religious beliefs….
The consideration for accepting cases laid out in the memo states…
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.
The larger context here is the ACLU getting more actively involved in partisan politics. But the even bigger context is the increasing consolidation of the left. The ACLU’s First Amendment position was an outlier. Now it’s beating a gradual retreat.
“When that power of the working class is once achieved…”