By David M. Greenwald
On Sunday, the NY Times ran a provocative story: “Once a Bastion of Free Speech, the A.C.L.U. Faces an Identity Crisis.” In it, they argued, “An organization that has defended the First Amendment rights of Nazis and the Ku Klux Klan is split by an internal debate over whether supporting progressive causes is more important.”
In his own piece, ACLU Legal Director David Cole responds: “Has the ACLU lost its way? This appears to be a perennial question.” His answer: “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.”
But, he says, “At the same time, the ACLU also remains devoted to defending other fundamental civil rights and civil liberties, including equal protection of the law — as we always have been. Addressing the tensions that sometimes arise between these commitments is not easy. But we seek to do so, today as always, not by abandoning any of our core commitments, but by acknowledging and confronting the conflicts in as forthright, inclusive, and principled a way as we can.”
The NY Times notes that 79-year-old longtime lawyer, David Goldberger, who argued the Skoki, Illinois, case defending the free speech rights of Nazis in the 
1970s was recently honored in a luncheon (actually in 2017), where “he listened to one speaker after another and felt a growing unease.”
He heard: “A law professor argued that the free speech rights of the far right were not worthy of defense by the A.C.L.U. and that Black people experienced offensive speech far more viscerally than white allies. In the hallway outside, an A.C.L.U. official argued it was perfectly legitimate for his lawyers to decline to defend hate speech.”
“I got the sense it was more important for A.C.L.U. staff to identify with clients and progressive causes than to stand on principle,” he said in a recent interview. “Liberals are leaving the First Amendment behind.”
The Times writes: “The A.C.L.U., America’s high temple of free speech and civil liberties, has emerged as a muscular and richly funded progressive powerhouse in recent years, taking on the Trump administration in more than 400 lawsuits. But the organization finds itself riven with internal tensions over whether it has stepped away from a founding principle — unwavering devotion to the First Amendment.”
It’s an interesting question.
Then again, it is one we are all facing.
George Washington Law Professor Jonathan Turley, for example, yesterday pointed out: “This week is the one-year anniversary of one of the lowest points in the history of modern American journalism. During the week of June 6, 2020, the New York Times forced out an opinion editor and apologized for publishing the editorial of Sen. Tom Cotton (R., Ark.) calling for the use of the troops to restore order in Washington after days of rioting around the White House.”
Turley points out: “While Congress would ‘call in the troops’ six months later to quell the rioting at the Capitol on January 6th, New York Times reporters and columnists called the column historically inaccurate and politically inciteful. Reporters insisted that Cotton was even endangering them by suggesting the use of troops and insisted that the newspaper cannot feature people who advocate political violence. One year later, the New York Times published a column by an academic who has previously declared that there is nothing wrong with murdering conservatives and Republicans.”
The Times points out these debates “mirror those of the larger culture, where a belief in the centrality of free speech to American democracy contends with ever more forceful progressive arguments that hate speech is a form of psychological and even physical violence. These conflicts are unsettling to many of the crusading lawyers who helped build the A.C.L.U.”
“There are a lot of organizations fighting eloquently for racial justice and immigrant rights,” Ira Glasser, former ACLU president, said. “But there’s only one A.C.L.U. that is a content-neutral defender of free speech. I fear we’re in danger of losing that.”
David Cole defended their policy, arguing: “Some of our critics argue that by considering the content and impact of the speech in assessing how to proceed, we are walking away from a commitment to all free speech. That’s an ahistorical and overly simplistic analysis of our free speech work: One must consider the content of the speech and the nature of any regulations to assess whether a First Amendment claim is likely to prevail.”
He argued instead, “One thing we rejected was any abandonment defending those with whom we disagree. Yet a small number of disgruntled voices continue to charge that we have done just that. But the record demonstrates otherwise.”
He notes for the record: “Since 2017, we have supported the constitutional rights of the NRA, the Koch-funded Americans for Prosperity Foundation, anti-Semitic protesters, Trump supporters, Trump himself, Republican challengers to a Democratic gerrymander, right-wing provocateur Milo Yiannopoulos, and conservative and anti-gay student groups, to name but a few. We have filed multiple Supreme Court briefs with the Cato Institute, the American Conservative Union, and the Institute for Justice.”
I feel their dilemma. I have long been a free speech advocate. I argued for instance that Milo Yiannopoulos should have been allowed to speak on the UC Davis campus. In fact, not only did I write a number of columns to that effect, but I also gave a number of guest lectures on campus—often opposed by progressive voices.
For me, while Milo is offensive and perhaps even threatening to people of color, it was a fairly easy call. However, I have noted with growing alarm the large amount of false information posted on social media.
A much more difficult call for me is whether private social media companies can pull demonstrably false content from their feed and whether they were justified in the ban on Donald Trump.
The Times noted, “Some A.C.L.U. lawyers and staff members argue that the First Amendment, which guarantees freedom of speech and the press — as well as freedom of religion, assembly and petitioning the government — is more often a tool of the powerful than the oppressed.”
“First Amendment protections are disproportionately enjoyed by people of power and privilege,” said Dennis Parker, who directed the organization’s Racial Justice Program until he left in late 2018.
David Cole responded, “Everything that Black Lives Matter does is possible because of the First Amendment.”
He later argued, “In our view, the First Amendment protects everyone, whether you are on the left, the right, or somewhere in between. For a century, the ACLU has not only defended that right on behalf of others, but has exercised the right in all that we do. It’s the First Amendment that protects our organization’s rights to speak out, to organize, to demonstrate, and to petition for a redress of grievances. It’s the lifeblood of democracy, and the oxygen of a civil society. And most important, the First Amendment is what ensures that those without political power can work to demand justice.
“We should recognize the cost to our allies but we are committed to represent those whose views we regard as repugnant,” Mr. Cole said in an interview with The New York Times.
But Floyd Abrams, one of the leading private First Amendment attorneys in the country, thinks the ACLU has compromised itself.
“The last thing they should be thinking about in a case is which ideological side profits,” he said. “The A.C.L.U. that used to exist would have said exactly the opposite.”
From my perspective this is an interesting debate. Then again, there is blood on everyone’s hands. Turley can point to the NY Times. I would also point out that the same people up in arms over Trump being banned by Twitter have no problem when Colin Kaepernick is blacklisted by the NFL, or are all too happy to boycott the NFL and others over allegations of “Cancel Culture.”
This debate is healthy, but we live in times of turmoil that are upsetting traditional norms and values. Check in again in a few years and see where we are.
—David M. Greenwald reporting
To sign up for our new newsletter – Everyday Injustice – https://tinyurl.com/yyultcf9
Support our work – to become a sustaining at $5 – $10- $25 per month hit the link:
This is not your grandfather’s ACLU. Not even your dad’s. This ACLU was taken over by woke activists in the pursuit of big bucks from leftist donors. This ACLU is now actually the combat operation of the leftmost wing of the Democratic Party. ACLU old guard have condemned them. Do not be fooled by the name.
This is just one person’s opinion
Make that two since I agree with you. The left has no problem with Trump’s free speech being banned by left leaning companies like Twitter and Facebook. Imagine though if the same happened to Biden?
The ACLU opposed the banning.
“We understand the desire to permanently suspend him now, but it should concern everyone when companies like Facebook and Twitter wield the unchecked power to remove people from platforms that have become indispensable for the speech of billions.”
That would seem to contradict your comment.
Out of curiosity, if a private company wishes to exclude Trump, what are you proposing to do to stop them?
Not at all, I wrote the “left”, not the ACLU.
Social media companies like Twitter and Facebook are already being looked into over their anti-trust laws. But a question for you David, what if an Internet provider decided not to let you use their platform like what happened to Parler? What are you proposing to do to stop them if that was ever a possibility?
The subject of this is the ACLU not the left. You in fact agreed with Chris and his view on the ACLU and then seem to conflate the ACLU and the left.
You didn’t answer what recourse anyone has? If an internet company wouldn’t let us use their platform, I’m not sure we would have any recourse. Again, what are you proposing?
Here, read it again, what I actually wrote:
You seem to be misreading what I actually wrote.
Actually I kind of did, Congress needs to look into these company’s anti-trust laws.
In the end, that won’t prevent a company from denying service to someone.
The “only” part of your comment that I disagree with.
This is a non issue because digital platforms can offer filters. A user may choose whether to filter “demonstrably false content” regardless who makes that judgment.
It was not justified to ban a user based on their content. It is justified to mark them as “bad user” and let other users choose whether to hide them.
Like the Wuhan lab leak “lie” ?
Not “the same people”; that is your creation/perception. I consistently support the right of all to speak, be it BS or not.
I know amazing isn’t it? We’ve never had times that did THAT before 😐
Same place, more dug in.
The real question is – do we accept these as private companies, or as utilities that are today at the core of how open society communicates?
Exactly, we’re now finding out more and more everyday that a Wuhan lab leak was the likely scenario that was squelched by anyone who presented that as a possibility on Twitter and Facebook.
Here’s a classic test:
New text messages show toxic culture in CA police squad | The Sacramento Bee (sacbee.com)
You will reveal yourself if you answer the questions, “Did the officers exercise ‘free speech’?” ; “should they be sanctioned (loss of job, pay, more?”; “should the ACLU speak up to defend or excoriate them?”
No need to respond… just think about those questions, and grade yourself…
Censorship is ethically proper if it is done based on reciprocation.
For example, if a person puts “hate speech” saying they want to evict or keep out all people of a certain race from living in town, then the reciprocation is that they may be evicted or keep out of town.
This is called reciprocation. You may serve people the law that they apparently wish to impose on others. Therefore, if a person dehumanize others, it reasons that they may be treated as non-humans. If they want to stay in the police force, they may re-apply in the K-9 unit.
So, Edgar… it appear, under your posit of reciprocity, that those who want to restrict/attacked voting rights, should have their right to vote restricted/attacked…
Or perhaps “attack the Capitol, take whatever means (which results in deaths perhaps) to overturn an election result!”… or, “kill the person who said that!”… both free speech, and reciprocity, right, at least hypothetically? [never would happen, but it is just hypothetical]
Famous quote (paraphrased)… an eye for an eye will only make the whole world blind (variously attributed, but mainly, to Ghandi)…
Have a great week and year Edgar, and we value your input.
The principle of reciprocation does not mean a society or an individual shall or is obligated to reciprocate. It just means that it is justifiable if an individual or the society does choose to reciprocate.
The concept “An eye for an eye makes the whole world blind” can be exploited by bullies. (They hit you and guilt trip you saying you can’t hit them back.)
The principle says it is okay to hit back. A society that does not encourage or award such behavior can still allow it. It doesn’t mean that if someone hit you, the only thing you are allowed to do is to hit them back.
A society can reward non escalating behavior without banning consensual exchanges. (If someone tries to hit you you are allowed to hit back, the situation becomes a consensual fight. It is not the government’s business to interfere a consensual duel given that he duel is not endangering anyone else.)
If you start with the principle that freedom of speech is about letting people speak so that others may judge them directly (instead of censoring them and force people to believe the judgment of an authority), then protection of freedom of speech means protect any individual from being censored, including in private platform if the platform is “large”.
The decision is not “As long as the company is private, it can censor how ever it what”. That would be the same as saying “As long as a utility company is private, it can choose not to serve any resident within their power grid.” I think you could consider these considerations as a type of anti-trust policy. A media that is “sufficiently large” may not censor users.
I am quite surprised that no one has mentioned breeches of the terms of service. I wonder if anyone thinks it is right for favored individuals to be allowed to break the terms of service repeatedly? On a much smaller scale, the Vanguard has been accused many times of “playing favorites” although no one has actually demonstrated that there is prejudice in the removal of comments due to breaking the rules. I speak as someone who, even though on the editorial board, have had my comments rightfully pulled when I got a little overenthusiastic and stepped out of bounds.
The monopoly issue is a separate matter, and IMO should be dealt with separately. But seriously, how does one justify allowing one or a handful of very powerful individuals to continually operate outside the rules that are both clearly stated and frequently imposed on those who do not wield such power?
What terms of service is in question?
The protection of freedom of speech includes declaring what terms of services are illegal. It is not the case that as long as a company is private and it has a set of terms of service that the users agree to, then everything is good. The terms of service can be made illegal.
I understand that the “Tia Rule” ensures favorites (David, in particular). It’s therefore up to him to exhibit self-restraint.
And of course, no mention of the other unnamed-blog allowed – even without the name, depending on the (mood? context?)?
Has the ACLU Lost Its Way in Protecting Speech They Hate?
Facebook, Twitter and alike while private has S.230 protections, closer to being a public beach. Except there a public beach that can be racist. (I love the word racist)
Right now, they have the best of both worlds; they can arbitrarily censor, and simultaneously claim immunity for posts that would otherwise violate the law. The trouble is that they are moderating out what they disagree with, under S.230, while not moderating out violations.
90% of the post that I have made that the Davis Vanguard has deleted I believe we’re justifiably deleted there might be 10% that I questioned but that’s part of the game overall I think the Davis Vanguard does a darn good job a herding cats ?