Does the ACLU still believe in free speech? Maybe not any more [fs]

[Declan McCullagh <declan () well com>]

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:
http://opinionjournal.com/editorial/feature.html?id=110010111

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.[1]

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,"[2] its national board asserts that Second Amendment protects an 
individual right to keep and bear firearms.[3] 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 
policies.[4]

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 
case.

That brings us to groups like the Institute for Justice[5] and Harvey's 
organization, the Foundation for Individual Rights in Education[6], 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[7], are a step in that 
direction, if it's not too late.

-Declan

[1] http://www.commondreams.org/views06/0309-26.htm
[2] http://action.aclu.org/site/PageServer?pagename=FP_about_accomplishments
[3] http://www.aclu.org/police/gen/14523res20020304.html
[4] http://www.commondreams.org/headlines06/0524-06.htm
[5] http://ij.org/
[6] http://www.thefire.org/
[7] http://tinyurl.com/yp8z59
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