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Thursday, February 26, 2015

Declaring victory?

At CoOp, Ron Collins discusses the ACLU's new 2015 Workplan: An Urgent Plan to Protect Our Rights, which listed 11 "major civil liberties battles" that the organization plans to focus on--none of which have anything directly to do with the freedom of speech or of the press. Ron wonders why, given the ACLU's history and founding purpose. He emailed ACLU Executive Director Anthony Romero about this and was told Romero intends to respond.

I look forward to hearing Collins report on Romero's response. But let me offer one possible (if not entirely accurate) answer: We won. There are no "major civil liberties battles" to be fought or won with respect to the freedom of speech. Yes, we still have situations in which government passes laws or does other things that violate the First Amendment and those must be fought in court. But the First Amendment claimant wins most of those cases and much of the doctrine seems pretty stable at this point; it simply is a matter of having to litigate. Importantly, these do not (or at least do not appear to) reflect a systematic assault on free speech rights across wide areas of the country on a particular matter. There is no overwhelmingly adverse legal precedent that must be changed (compare surveillance), no overwhelming series of incidents highlighting the problems (compare police misconduct), and no systematic assault on a right by political branches or other majoritiarian institutions (compare Hobby Lobby; reproductive rights; voter ID).

The only "major battle" arguably to be fought on the First Amendment is over campaign finance. But the ACLU is famously divided over that issue, with past leaders fighting among themselves and divisions within the current leadership. The rules governing public protest have evolved to overvalue security at the expense of the right to assemble and speak in public spaces, especially at singularly important events (political conventions, meetings, etc.). But there are so many variables at work there, it is hard to see how to create a battle plan on that.

That's it. Police still seem unsure about what to do with people filming them in public, but that is not because the doctrine is not clear. The student-speech doctrine is a horror show, but that is not an issue on which you hinge your fundraising. Campus speech codes are a pervasive and systematic problem (but see Eric Posner), but the ACLU may be divided on that issue as well (since much of the targeted speech is deemed racist, sexist, etc.). And anyway, other organizations (notably FIRE) have made this their specialty. Not every challenged trademark involves a racial slur. Am I missing something else?

Note that I do not mean to suggest that we won and that there are, in fact, no more systematic threats to free expression. Yes, I feel a lot better about my right to burn a flag, defame the President, or watch "Fifty Shades of Grey" than I do about my daughter's future right to control her body. But it would be a mistake for the ACLU (or anyone else) to declare victory on free speech and drop the mic.

Posted by Howard Wasserman on February 26, 2015 at 09:31 AM in First Amendment, Howard Wasserman | Permalink


I'm not sure it's fair to say the organization has "given up" on freedom of speech. The campaign finance question is complicated and one can develop a First Amendment vision (not one I share, but still) under which some regulation is acceptable in furtherance of expressive values such as public debate. Frankly, I continue to favor the contribution/expenditure divide first created in Buckley. The fact that other issues are more urgent does not mean the organization is entirely done fighting First Amendment battles. It was, after all, the Missouri ACLU doing all the litigating--on issues of recording and public protest--during Ferguson.

Posted by: Howard Wasserman | Feb 27, 2015 4:52:41 PM

Just noting that the rot is spreading, Brad. You used to be able to count on the ACLU being good on freedom of speech. As you say, largely a 1st amendment organization, even if they insisted they defended all civil liberties.

If they're going to give up on freedom of speech, what is left?

Posted by: Brett Bellmore | Feb 27, 2015 2:22:40 PM

It appears you've been upset about the direction the ACLU has taken for at least a decade and a half now, maybe it is time to decide they aren't the organization for you and move on?


Posted by: brad | Feb 27, 2015 12:10:45 PM

"it is called the American Civil Liberties Union, in practice it has largely been a first amendment organization."

But, all along, it has claimed to have been your one stop shop for defending civil liberties, explicitly denied being limited to freedom of speech. Which is why Strossen had to give the "not co-extensive" speech to explain why they weren't defending some of the civil liberties in the Bill of Rights.

Posted by: Brett Bellmore | Feb 27, 2015 11:15:37 AM

But it IS a partisan issue. It's simply a brute fact that these campaign finance laws only have significant support from one end of the political spectrum, while the opposition comes from the other. The political salience is unavoidable, both ends of the political spectrum view them as a weapon used by one particular party against the other.

And the ACLU has, regrettably, hitched it's waggon to one particular political party, deliberately derives it's support only from one end of the political spectrum. It is inevitable that this leads to heavy pressure to avoid cases where upholding civil liberties is opposed by it's political allies.

If the ACLU had made a serious effort to have a base of support in both major parties, it might have had the independence to take on fights one or the other party didn't like. With its support restricted to one party, it is losing that independence.

Posted by: Brett Bellmore | Feb 27, 2015 11:00:00 AM

I don't see the argument that abstaining from the 2nd amendment debate is some sort of original sin. Though it is called the American Civil Liberties Union, in practice it has largely been a first amendment organization. It didn't get much involved in the civil rights litigation of the 50s and 60s, or the crimial rights revolution of the 60s and 70s.

Abstaining there was IMO the correct thing to do, and should be a model for other non-free speech controversies.

Posted by: brad | Feb 27, 2015 10:37:39 AM

"didn't *really* mean"

Mr. Bellmore doesn't think Heller "really" honors the text of the 2A, something that was greatly debated for quite some time. As to "biggest," it might be open to debate that free speech, racial equality etc. was as "big" as gun rights on the ground, particularly if we are not talking about ensuring blacks and other groups were equally obtaining them.

It is true that ACLU focused on other issues -- they began as a free speech organization. Likewise, true that some (SOME) members are not fans of guns, including those who supported non-violence. It is duly noted Democrats like John McCain support campaign regulation, as people like Professor Zephyr Teachout argue is necessary to promote republican values and deal with corruption. The proper path here is open to some debate.

Making this a partisan issue is not really a great strategy to convince since there is a bipartisan concern here for regulation, which is allowed by the Supreme Court even today. (e.g., Citizen United upheld disclosure and disclaimer; the SC upheld "control" of foreign money etc.). Regulation ("control" to some people) is the difference between liberty and license.

I'm unclear though that allowing regulations that determine for profit corporations need to form PACs, e.g., something that study has shown reflected originalist thinking of the power to regulate them, will lead to support of the "disappeared" here. Though one party seems somewhat more concerned about such things. It does depend on what sort of "liberty" you are concerned about.

Posted by: Joe | Feb 27, 2015 9:45:04 AM

"The only "major battle" arguably to be fought on the First Amendment is over campaign finance. But the ACLU is famously divided over that issue"

This is just exactly the problem. The ACLU is divided between two factions: Those who want a principled defense of civil liberties, no matter how that cuts in any given case, and those who only want civil liberties defended when the outcome is beneficial to, or at least not contrary to, the interests of the Democratic party. The latter faction is gradually winning.

Their big early win was when the ACLU decided that the 2nd amendment didn't *really* mean what it said, because too many ACLU donors liked gun control. The cost of that 'victory' was that the ACLU retired from one of the biggest civil liberties battles of the 20th century, and the NRA wound up the 800 pound gorrilla the ACLU might have become.

The new front in the war is campaign 'reform', where the Democratic party has decided that, since it now gets to pick who the censors will be, censorship isn't so bad. And now demands that the ACLU stop defending freedom of political speech.

If they win that fight, what's next? Agreeing to not defend people who get 'disappeared' in Rahm Emanuel's Chicago?

Posted by: Brett Bellmore | Feb 27, 2015 9:16:43 AM

I wrote a short book called Freedom From Speech on some of the free speech threats that worry me the most. I'd be happy to send you a copy if you want one. As far as legal threats, I am most worried about the international scene. My overall thinking is that if we do not lead a reasoned fight against anti-blasphemy, hate speech, overzealous national security laws and polices like the "right to be forgotten" censorship abroad is going to have a powerful effect here, First Amendment or not. And, of course, what I see on campuses, as you mention has not precisely filled me with hope.

Posted by: Greg Lukianoff | Feb 26, 2015 5:21:58 PM

I agree with your last sentence that the ACLU ought not to declare victory as disband, as arguably the March of Dimes should have, because free speech is the type of thing that requires continuing vigilance.

But is expanding into all kinds of other areas the right move? Is that a good strategy for keeping it viable for future free speech challenges, or is it instead a strategy that will leave it with a different base of supporters and employees/volunteers, those who are passionate about its new missions? Would it instead be better to shrink somewhat but stay true to the original mission (from the point of view of a free speech supporter, the answer is obvious from the point of view of the current managers of the organization)?

Posted by: brad | Feb 26, 2015 12:50:19 PM

Howard -- Thanks for this. In addition to the campus-speech-code issue (over which, as you say, the ACLU seems divided -- although, in my view, they should not be), I think there's the CLS v. Martinez-type problem. I think there's a lot of confusion about the public forum / freedom of association / unconstitutional conditions nexus and (in my view) it would be good if the ACLU and similar organizations came around to the CLS / John-Inazu-esque position.

Posted by: Rick Garnett | Feb 26, 2015 10:13:11 AM

Speech and press might do be doing fairly well, but freedom to protest in public places might need some work.

Posted by: Joe | Feb 26, 2015 9:39:04 AM

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