From now on, it looks like the ACLU will sort of kind of defend free speech, as long as that speech doesn’t piss off the wrong people. From Robby Soave at reason.com:
The American Civil Liberties Union will weigh its interest in protecting the First Amendment against its other commitments to social justice, racial equality, and women’s rights, given the possibility that offensive speech might undermine ACLU goals.
“Our defense of speech may have a greater or lesser harmful impact on the equality and justice work to which we are also committed,” wrote ACLU staffers in a confidential memoobtained by former board member Wendy Kaminer.
It’s hard to see this as anything other than a cowardly retreat from a full-throated defense of the First Amendment. Moving forward, when deciding whether to take a free speech case, the organization will consider “factors such as the (present and historical) context of the proposed speech; the potential effect on marginalized communities; the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values; and the structural and power inequalities in the community in which the speech will occur.”
The memo’s authors assert that this does not amount to a formal change in policy, and is merely intended as guidelines that will assist ACLU affiliates in deciding which cases to take.
Kaminer, though, sees the memo as yet more evidence that the ACLU “has already lost its zeal for vigorously defending the speech it hates.” As she writes in The Wall Street Journal:
The speech-case guidelines reflect a demotion of free speech in the ACLU’s hierarchy of values. Their vague references to the “serious harm” to “marginalized” people occasioned by speech can easily include the presumed psychological effects of racist or otherwise hateful speech, which is constitutionally protected but contrary to ACLU values. Faced with perceived conflicts between freedom of speech and “progress toward equality,” the ACLU is likely to choose equality. If the Supreme Court adopted the ACLU’s balancing test, it would greatly expand government power to restrict speech.
To continue reading: Leaked Internal Memo Reveals the ACLU Is Wavering on Free Speech