The ACLU’s Longstanding Commitment to Defending Speech We Hate
The ACLU, the nation’s oldest and largest civil liberties organization, has always had its share of critics. Many condemned us for defending Nazis’ right to march in Skokie in the 1970s. Some, like former Attorney General Ed Meese, labeled us the “criminals’ lobby” for advocating for constitutional rights for those accused of crime. We earned few friends when we represented Anwar al-Awlaki, an American citizen suspected of terrorist ties and killed in a drone strike by the Obama administration. After we represented a white supremacist denied a permit by the city of Charlottesville, we were for defending white supremacists. Such criticism comes with the territory, and does not dissuade us from defending the Bill of Rights, no matter how unpopular our clients may be.
But Wendy Kaminer’s criticism, in the Wall Street Journal, is different from those challenges to our work. Her critique is predicated on a fundamental misrepresentation. She falsely accuses the ACLU of having secretly changed its policy regarding free speech — and of launching an investigation to determine who “leaked” the “secret” document that she claims reveals this asserted change in policy. In fact, the ACLU remains fully committed to defending free speech as the document she cites – our guidelines for case selection -- expressly reaffirms. That document does not change our longstanding policies and has never been secret.
After the tragic events in Charlottesville, we our commitment to defending speech with which we disagree. The ACLU Board — the only entity with the authority to change ACLU policy — discussed Charlottesville, and no one on the staff or the board asked the board to change our policies.
Nonetheless, it seemed clear to us that guidelines would help ACLU affiliates and national staff in considering cases that might pose conflicts between our values. We are a multi-issue organization, and some cases may present conflicts, such as between gay rights and religious freedom, privacy and women’s rights, or speech rights and equality. The guidelines, which have been distributed to all ACLU staff members, are explicitly designed to help affiliates and national staff think through various factors in case selection decisions.
Kaminer claims the guidelines change our policy. But the guidelines clearly state that they do not “change ACLU policy, which is set by the Board.” They reaffirm our view that free speech rights “extend to all, even to the most repugnant speakers — including white supremacists — and pursuant to ACLU policy, we will continue our longstanding practice of representing such groups in appropriate circumstances to prevent unlawful government censorship of speech.” Nothing in the guidelines supports Kaminer’s claim that “free speech has become second among equals.”
Kaminer objects to any acknowledgement that speech can cause harm. But that is simply a recognition of fact, and denying it flies in the face of lived experience and ignores the costs of free speech. All rights come with costs, from privacy to due process to the right against compelled self-incrimination. Acknowledging this hardly means one lacks commitment to the rights. It simply recognizes the stakes. The guidelines do not suggest that the ACLU should not represent a speaker because his speech causes harm. Rather, they “attempt to identify the kinds of questions that ought to be considered, the processes for their consideration, and the measures that can help mitigate the harms to competing interests.” 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.
And if you don’t believe our words, judge us by our acts. We represent Milo Yiannopoulos in a suit against the Washington, D.C. Metro system for suppressing ads for his book. We are defending a student group in San Diego that was penalized for publishing a satire of “safe spaces” that some students and faculty deem offensive. We disagree sharply with those who engage in terrorism, criminal activity, homophobic or racist speech, or attempts to dissuade women from obtaining abortions. Yet we have defended the constitutional rights of terrorists, criminals, anti-gay and racist bigots, and right-to-life advocates. We don’t burn flags, but we defend the rights of those who do. Indeed, we’ll even defend Kaminer’s right to criticize the ACLU. But we do wish she’d get the facts straight.
This article first appeared in The Volokh Conspiracy.
Learn More About the Issues on This Page
-
Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.