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Sunday, July 15, 2018

ACLU in the NYT (Updated)

I was traveling last week, so I was unable to read and comment on last week's New York Times Magazine feature on the ACLU. The story emphasizes two themes--its litigation against the Trump Administration across a range of issues and the way it has looked to the NRA's political and electoral strategies for guidance.*

[*] The headline on the article in the print edition was A.C.L.U. v. Trump. The headline in the online article was Can the A.C.L.U. Become the N.R.A. for the Left.

The article does not get into the controversy over the ACLU's First Amendment work, its role in Charlottesville, or the recent controversy over its policies on representing certain speakers in First Amendment cases. None of the political and litigation effects discussed in the piece involve the First Amendment. The article downplays the degree to which this reflects major changes to ACLU activities. It states this is "not the first time the A.C.L.U's mission has shifted," pointing to its birth in the 1920s to protect radicals and unionists and the slow discovery of the benefits of litigation in those efforts. But that was a shift in tactics, not a shift in mission. The print article describes the ACLU has having become a "rapid legal assault force against the Trump Administration." But the Administration's many sins have not involved limiting speech rights, so that role has required less work on free speech and more on immigration, due process, equal protection, and voting rights. All of which is important. But it is different than what the group has historically focused on.

Update: Marin Cogan in The New Republic explores how the ACLU's competing agendas and roles conflict in the Age of Trump. No mention of the Times Magazine story or of the representation guidelines, although it discusses the negative reaction by many affiliates to the organization's representation of Milo Yiannopoulos or the Charlottesville Nazis. Cogan offers an interesting conclusion--the NRA succeeded because of political polarization, in which certain issues (e.g., gun rights) are entirely associated with one political party. But resistance to sharp ideological boundaries is part of the ACLU's (First Amendment) DNA, so its continued desire to appear (and perhaps remain) non-partisan will frustrate and disappoint liberals hoping it will become the single organization to promote their interests.

I cannot tell if Cogan believes this is a good or bad thing.

Posted by Howard Wasserman on July 15, 2018 at 07:28 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


I did not mean to suggest that the ACLU was a single-issue organization; I know they have been fighting these issues for years. I nevertheless think it is telling how little core First Amendment stuff (voting is only tangentially related to the First Amendment, at least under current doctrine) was discussed in the story. And, we could add, how strong a left-wing political valence the group's work now explicitly has.

Posted by: Howard Wasserman | Jul 16, 2018 8:24:36 AM

Interesting and correct observation indeed . Typically , when fighting for human rights , it may result in restraint of free speech ( effective free speech , differentiated from the content of the expression ) . And indeed , in Masterpiece cakeshop , they were in favor of the gay couple of course ( and even filed brief amicus in the Supreme court , see hereby a link ) . And why is that ?? Typically , when you fight for human rights , you try to fight excessive stigmatization ( emphasizing the right of individuals and minorities , typically stigmatized ) . As such , it may result in restraining of free speech , like in the case of Masterpiece indeed .

Here :



Posted by: El roam | Jul 16, 2018 6:07:04 AM

The ACLU as I understand started as a free speech / conscientious objector group but the second comment is correct that it now has a broad mandate.

The "‘we are a group of left leaning lawyers that take whatever random cases we feel like taking’?" is sort of specious. Discrimination cases is standard stuff for them and that is a significant part of their anti-Trump cases.

"None of the political and litigation effects discussed in the piece involve the First Amendment."

Reference is made to voting rights in the article, including gerrymandering. The ACLU hasn't done that before? Kagan in her concurrence in that big gerrymandering case flagged the First Amendment argument that Kennedy favored (perhaps a senator or two can bring that up during the hearing).

The most controversial thing in the article might be direct involvement in political races. But, the issues are long term issues of there, including policing issues.

Posted by: Joe | Jul 15, 2018 11:28:38 PM

Areas like due process, voting rights, and equal protection have been central to ACLU's docket and mission for a long time, haven't they? I'm sure they've ramped up the immigration-related work lately for obvious reasons, but I don't think there was ever a time when the ACLU was just a First Amendment group...

Posted by: Joey Fishkin | Jul 15, 2018 10:45:27 PM

I fail to see a viable long term strategy here. After the Trump Administration is history, who is going to want to donate money to an organization whose new mission statement appears to be ‘we are a group of left leaning lawyers that take whatever random cases we feel like taking’?

Posted by: Brad | Jul 15, 2018 9:59:07 PM

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