Offensive Speech

Is The ACLU Retreating On Free Speech? The Controversy and Debate

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The American Civil Liberties Union (ACLU), a non-partisan civil rights organization, has recently been criticized for allegedly retreating from their stance on free expression, as a result of a leaked memo outlining the adoption of new case selection guidelines. A vigorous debate regarding the balance of free speech ideals with the values of equality played out in the pages of legacy newspapers and legal blogs. A similar discussion addressing the question “Can Free Speech Be Progressive?” took place on our site in our First Amendment Roundtable.

Opinion & Analysis

August 1, 2018: ACLU Leader Argues For The Neutrality Of The First Amendment In NYT Op-Ed

David Cole, National Legal Director of the ACLU, penned an opinion piece in The New York Times titled “Liberals, Don’t Lose Faith in the First Amendment.” He makes the case that both liberals and conservatives benefiting from the First Amendment is part of the “constitutional bargain”:

But in most instances, the First Amendment doesn’t favor speech of the right or the left; it simply takes the government out of the business of controlling speakers by virtue of what they say. It often empowers the powerless. And most important, it helps check official abuse.

The New York Times>
July 5, 2018: A Leaked Memo Sparked An Ongoing Debate About The ACLU’s Stance On Free Speech 

The ACLU has recently been criticized by a former board member over the adoption of new case selection guidelines which came to light through a leaked memo marked “CONFIDENTIAL ATTORNEY WORK PRODUCT.” The new guidelines say that speech that denigrates marginalized groups can inflict harm and impede the progress toward equality, but also reaffirms its commitment to the First Amendment and free speech. The critique has sparked a robust debate about the balance between equality and free speech, and has obligated the ACLU to respond.

Wendy Kaminer in the <em>WSJ</em>, “The ACLU Retreats From Free Expression”> ACLU Case Selection Guidelines: Conflicts Between Competing Values or Priorities> David Cole, ACLU Legal Director, “The ACLU’s Longstanding Commitment to Defending Speech We Hate”> WSJ, “ACLU Isn’t Backing Away From Free Speech”>

David Cole objects to Wendy Kaminer’s claims regarding the new guidelines and says that the guidelines are not a diversion from the ACLU’s longstanding policies. He writes, “We will continue to represent those expressing offensive and harmful views, but we as an organization also insist on our right to condemn a speaker’s views even as we defend the right to express them.”

Ira Glasser, former executive director of the ACLU and Nadine Strossen, former president of the ACLU, weigh in on the controversy in statements provided to First Amendment News.  Nadine Strossen expands her response in a post for The Volokh Conspiracy.

In response to David Cole’s defense, Glasser writes: “To deny that this departure from free speech policy is a departure is intellectually dishonest…”

Ira Glasser and Nadine Strossen Respond> Nadine Strossen, An Expanded Response>
More on the ACLU Free Speech Controversy
<em>The National Review</em>, “The ACLU Abandons Its Free-Speech Absolutism”> <em>The Washington Post</em>, “The ACLU’s Divided Heart”>