ACLU Faces Identity Crisis Over Centrality of Free Speech

The American Civil Liberties Union has built itself into a richly funded progressive powerhouse with a $300 million budget and a team of 500 lawyers, but the organization faces an internal struggle over whether it has lost its way, The New York Times reports.

The Times says debate has raged internally whether the organization has focused less on defense of speech and more on advocacy for an increasing number of progressive causes, as many contend that hate speech is a form of psychological violence.

The debate is unsettling to many of the crusading lawyers who helped build the ACLU, as the organization risks surrendering its original and unique mission.

“There are a lot of organizations fighting eloquently for racial justice and immigrant rights,” former ACLU director Ira Glasser said. “But there’s only one ACLU that is a content-neutral defender of free speech. I fear we’re in danger of losing that.”

Longtime lawyer David Goldberger, who argued one of the ACLU’s most famous cases by defending the free speech rights of Nazis in the 1970s to march in Skokie, Ill., home to many Holocaust survivors, agrees.

“I got the sense it was more important for ACLU staff to identify with clients and progressive causes than to stand on principle. Liberals are leaving the First Amendment behind," Goldberg said recently.

The ACLU from 2016 to 2019 focused more on being a leader in the resistance against President Donald Trump. It did not even include the words “First Amendment” or “free speech” in its annual reports during that time, according to the Times.

Since Trump’s election, the ACLU budget has nearly tripled to more than $300 million and its corps of lawyers doubled, but only four lawyers specialize in free speech, the same number as a decade ago.

A turning point in the ACLU’s debates over free speech came in 2017, when officials in Charlottesville, Va., rescinded a permit for far-right groups to protest downtown in support of a statue erected to Confederate General Robert E. Lee. Officials relocated the demonstration.

The ACLU argued that the move violated free speech rights and won, and the group was allowed to parade downtown. The actions that followed were ugly. Demonstrators chanted anti-Semitic and racist chants and one right-winger plowed his car into counterprotesters, killing a woman.

There was revulsion within the ACLU, and many criticized its executive director, Anthony Romero, and legal director, David Cole, as privileged and clueless.

The ACLU put out new guidelines that suggested lawyers should balance taking a free speech case representing right-wing groups, whose “values are contrary to our values” against the potential such a case might give “offense to marginalized groups.”

But Cole wrote an essay defending the decision to represent the right-wing group.

“We protect the First Amendment not only because it is the lifeblood of democracy and an indispensable element of freedom, but because it is the guarantor of civil society itself,” he wrote.

That ignited anger among some 200 staff members, who signed a letter stating that Cole's "approach fails to consider how our broader mission - which includes advancing the racial justice guarantees in the Constitution and elsewhere, not just the First Amendment - continues to be undermined by our rigid stance."

The ACLU held discussions with its staff, with some demanding that the ACLU “no longer defend white supremacists” and others saying top leaders “are not to be trusted alone with making decisions on these delicate” questions.

Cole, in a statement posted to the ACLU, responded to the Times.

“Has the ACLU lost its way? This appears to be a perennial question," he said.

“But the answer remains the same. The ACLU is committed to the principle of free speech today, just as it was in the 1990s, 1970s, and long before that. And we are specifically committed to the proposition that the First Amendment’s guarantees (like those of the rest of the Constitution) apply to all, not just to those with whom we agree.”