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Does the ACLU still believe in free speech? Maybe not any more
Wendy Kaminer, who co-authors thefreeforall.net with longtime Politech
subscriber Harvey Silverglate, has a provocative and well-argued op-ed
in Wednesday's Wall Street Journal. Wendy asks whether the ACLU still
broadly supports free speech, and answers the question in the negative:
Wendy points out that the ACLU has been silent on a key free speech case
involving anti-homosexual statements that set an important (and awful)
precedent before the 9th Circuit and was AWOL on the Muhammad "hate
speech" cartoons. The ACLU has supported legislative restrictions on
speech of pro-life groups offering abortion counseling. The New York
Civil Liberties Union failed to criticize a New York City Council
resolution condemning use of the "n-word." And so on.
It's true that ACLU litigators have done terrific work on free speech
cases before, and will continue to do so. It has represented me as a
plaintiff in the 1996 CDA case, for which I will always be grateful, and
has devoted countless resources to COPA as well. The organization boasts
the most principled and ardent First Amendment lobbyists in Washington,
who are willing to take controversial stands on things like outlawing
morphed child porn (a stand later vindicated by the Supreme Court).
But those attorneys and lobbyists ultimately report to a national board
that seems to be growing more politically correct by the day. (Wendy was
a dissident board member; I'm not sure if she's still on the board.)
This is not exactly a new phenomenon. Liberals and progressives have
long been split between their totalitarian-minded leftist wing that
loves to enforce political correctness through "hate speech" laws and
campus speech codes -- and those who recognize the social and political
dangers inherent in banning speech that someone dislikes, and believe
the answer to objectionable speech is more speech.
The danger is that the ACLU's national board has been edging toward the
former category, and the group will end up defending the speech rights
only of liberals and liberal causes. That's fine, I guess, but it means
those of us who believe conservatives, libertarians, religious folks,
and so on also have free speech rights will have to look elsewhere for a
more principled organization.
The ACLU has always been selective in what sections of the Bill of
Rights it takes literally, of course. Contrary to its claim to be "the
foremost defender of the United States Constitution and the Bill of
Rights," its national board asserts that the Second Amendment does not
protect an individual right to keep and bear firearms. It certainly doesn't
believe in a literal reading of the Commerce Clause, and the Ninth and
Tenth Amendments that limit government power might as well not exist.
The ACLU Foundation of Arizona has fought bitterly against laudable
school voucher programs on behalf of monopoly public schools, and it has
muzzled its own board members from criticizing the organization's
But at least when it came to free speech, you could historically count
on the ACLU defending the rights of everyone, not just lefties.
Unfortunately, unless current trends reverse, that will no longer be the
That brings us to groups like the Institute for Justice and Harvey's
organization, the Foundation for Individual Rights in Education, or
FIRE. IJ has become what the ACLU could have been: a principled
organization that believes in the entire Bill of Rights and stands up
for both free speech and property rights, for instance in its work on
eminent domain abuse. FIRE defends the free speech rights of liberals,
conservatives, and libertarians on college campuses. And while groups
like the Cato Institute and the Mises Institute aren't activists, their
board members and staff actually take a broad, inclusive -- one might
say a traditionally "liberal" -- view of free speech.
The big question remaining, for those of us who actually believe that
the First Amendment does not protect only the rights of progressive and
liberal speakers, is whether the ACLU can be salvaged from the views of
the majority of its board members. Articles like Wendy's, and a
response by David French formerly of FIRE, are a step in that
direction, if it's not too late.
Posted by Declan McCullagh on May 24, 2007
in category free-speech
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