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Friday, June 22, 2018

ACLU's competing values and principles (Multiple Updates)

On Thursday, a memo leaked showing the national* ACLU's new policies on undertaking representation where the litigated issue conflicts with the organization's other values and principles, notably equality and the rights of historically disadvantaged groups. The memo lists general case-selection criteria. It then identifies five considerations specific to free-speech cases--whether the speaker seeks to engage in or promote violence, whether the speaker seeks to carry weapons, the impact of the proposed speech and its suppression (including how the speech advances white supremacy or negatively affects oppressed communities or historic social inequalities), the extent to which the ACLU can represent the speaker while publicly denouncing the speech, and the extent to which it can mitigate the conflict (such as by earmarking recovered attorney's fees to groups the speaker attacks).

[*] The memo states that the policy binds the national office, but does not and cannot bind local affiliates.

The memo is being read and garnering attention as the ACLU backing away from its historic protection for free speech, especially its paradigmatic protection of Nazis marching past a village full of Shoah survivors. It seems to make unlikely (if not outright preclude) that the national office will represent Nazis or white supremacists in the future. The memo purports to demand a balance--how much the speech will attack certain groups compared with how much the speech restriction, left unchallenged, will harm free speech generally (presumably by also being used against pro-equality speakers). This tries to read as a balancing test, a "stop-and-think" policy that requires the group to "make every effort to consider the consequences of our actions" before taking or declining representation. But it is hard to envision a case in which that balance is going to weigh towards representing a racist, sexist, anti-Semitic, anti-whatever group, when that representation is certain in every case to anger those oppressed groups that the ACLU wants to maintain as allies.

Like any vesting of discretion, we must await application. But it does not bode well.

[Update: CoOp publishes remarks by ACLU President Legal Director David Cole responding to some criticisms of the policy, insisting these are guidelines and that the organization will continue to represent "even the most repugnant speakers."]

[Further Update: CoOp followed with statements from two former ACLU Presidents: One from Ira Glasser arguing that the ACLU has never before required that the content of speech be considered as part of the representation decision and two statement Nadine Strossen taking a more sanguine approach to the effect the guidelines are likely to have, arguing that the ACLU has always considered the potential harm of speech in deciding how to undertake representation, distinct from whether to undertake representation.]

Posted by Howard Wasserman on June 22, 2018 at 04:24 PM in First Amendment, Howard Wasserman | Permalink

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