Earlier this month the ACLU argued before the US Court of Appeals for the 10th Circuit in defense of a high school student expelled for temporarily posting to Snapchat a picture of his friends dressed in World War II–era clothes at a thrift store with the caption: “Me and the boys bout to exterminate the Jews.” He took it down shortly thereafter—and apologized for what was a stupid and deeply offensive joke—but the school expelled him nonetheless. We argued that while the anti-Semitic message was deeply offensive, it was also protected by the First Amendment when uttered outside of the school, and could not be the basis for punishment. In doing so, we were only doing what we have always done—defending speech rights for all, even those with whom we disagree.
The ACLU has long been criticized for taking such stands. Think Skokie, where we defended the right of neo-Nazis to march though a largely Jewish suburb of Chicago. But these days, the criticism has changed, as commentators in The New York Times, The Wall Street Journal, The Atlantic, and The Hill, have charged that we have abandoned such work, and no longer defend those with whom we disagree. Even Bill Maher has jumped on the bandwagon. If the charges were true, that would be deeply concerning, given the ACLU’s historic role in the development and enforcement of First Amendment rights. But they aren’t true. Despite the many articles repeating this accusation, no one has yet identified a single client or cause we turned away because they were too controversial.
We continue to believe that the First Amendment is the foundation of our democracy, and we defend it for precisely that reason. It remains the best protection for those who lack power, and for those pressing for equal treatment. It protects our ability to speak out, to organize, to associate with like-minded others, to march in the streets, and to demand change from our government. It’s the lifeblood of Black Lives Matter, #MeToo, and the LGBTQ movement—and of anti-abortion activists, gun rights advocates, and libertarians. Yes, it extends to the powerful and hateful as well as the marginalized. That’s the thing about rights. They apply universally. But if you are in the minority, whatever side you are on, there is no more important safeguard. None.
Critics contend that after Charlottesville—in which the ACLU represented the alt-right activist Jason Kessler when the city sought to revoke his permit for a demonstration protesting its decision to remove a Confederate monument—the ACLU got cold feet and stopped representing those with whom we disagree. Some claim that our central role in resisting President Trump’s many incursions on civil rights and civil liberties rendered us too partisan, and that we are no longer willing to take on cases that might make our progressive supporters uncomfortable. Others point to “case selection guidelines” we adopted after Charlottesville as the source of this change.
Here are the facts.
It’s true that we filed over 400 legal actions against Donald Trump, some staff were unhappy with our representation in Charlottesville, and that in 2018 we adopted guidelines to address how we take on cases that pose tensions between the many values the ACLU champions—for example, racial justice and free speech, religious freedom and nondiscrimination, or privacy and protection from domestic violence. But none of these developments has led us to shy away from defending those who espouse positions that progressives oppose.
I drafted our case selection guidelines precisely to reaffirm our commitment to free speech, not to abandon it, after some within and outside the organization began to question the defense of hate speech. The guidelines could not be more unequivocal: they expressly proclaim that free speech rights “extend to all, even to the most repugnant speakers—including white supremacists—and pursuant to ACLU policy, we will continue our longstanding practice of representing such groups.” They also acknowledge that free speech, like many rights, has costs, but explain that those costs do not furnish a reason to abandon its defense. Instead, the guidelines set out a process for honestly confronting the costs, and recommend ways to mitigate the harm when we take on cases that present tensions between our values. One can, for example, defend the speaker even as one condemns his views—as we did with the Nazis in Skokie, or when we represented Milo Yiannopoulos in a suit against the Washington, D.C., Metro for refusing to display an advertisement for his book.
But actions speak louder than words. Since Charlottesville and the guidelines, we have defended the First Amendment rights of countless individuals and groups whose views we do not share. They include: Trump lawyer Michael Cohen, the NRA, anti-Semitic protesters outside a synagogue, racist and homophobic college students, and the Koch-funded Americans for Prosperity. Most recently, we called on Georgetown Law not to fire conservative scholar Ilya Shapiro for his “lesser Black woman” tweet about Biden’s promise to name a Black woman to the Supreme Court; criticized the FBI’s tactics in investigating the conservative group Project Veritas; and hailed Elon Musk’s decision to re-platform Donald Trump. We didn’t agree with the speech of any of these individuals or groups—but that didn’t stop us from defending their First Amendment rights.
Why, given this record, do people continue to maintain, without evidence, that the ACLU no longer defends those with whom it disagrees? It may be a matter of cognitive dissonance. In standing up for free speech regardless of the views of the speaker, the ACLU is out of step with many in our country today. There is no question that some on the left are less committed to free speech than they once were. Students shout down speakers, self-appointed regulators of discourse condemn even unintentional slights, and tolerance for opposing points of view seems out of fashion. The right criticizes the left on this score, but it is no more forgiving of those who dare to question its orthodoxies, as Liz Cheney, Mitt Romney, Chief Justice John Roberts, and all who seek to teach critical race theory have learned. There is a “cancel culture” on both sides of the aisle.
It has definitely become more challenging to maintain a principled defense of free speech for all in our increasingly polarized society, where everyone is called upon to choose sides and take aim. But we have continued to do so, and will not stop doing so.
We believe that even if free speech and equality can appear to be in tension in particular contexts—such as the regulation of hate speech or campaign finance—at a deeper level speech rights and equality are mutually reinforcing. Those who stand with us for racial justice, women’s rights, equal dignity for LGBTQ individuals, immigrants’ rights, and the rights of people with disabilities can achieve those ends only by exercising the freedoms that the First Amendment guarantees. Free speech and association undergird every social justice movement in this country. When Martin Luther King Jr. reminded us that “there is no gain without struggle,” he was talking as much about the First Amendment as the 14th. Those who would sacrifice speech to attain equality will achieve neither.
The critics, in short, are wrong. We remain committed to the principled defense of speakers with whom we fundamentally disagree. If that commitment seems quaint in today’s world, call us old-fashioned. We’ll be there to defend your right to do so.