The ACLU and free speech

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THAT A BELIEF IN FREE SPEECH is rapidly eroding in the U.S.is hardly debatable. Every relevant metric demonstrates that to be the case.

Both a cause of this contamination and a result is the growing popular belief that free speech can no longer be protected as a primary right but must be “balanced” — meaning constricted — in the name of other political and social values that are purportedly in conflict with free expression.

A 2019 poll found that large percentages of Americans, in some cases majorities, believe the First Amendment goes too far in protecting free speech and its understanding should be “updated” to reflect contemporary cultural views.

Just this week, the New York Times Magazine published a cover story by the thoughtful liberal journalist Emily Bazelon which explicitly questioned — one might say rejected — the ongoing viability of the First Amendment and free speech values on the ground that the U.S., in Bazelon’s view, is “in the midst of an information crisis caused by the spread of viral disinformation, defined as falsehoods aimed at achieving a political goal.” As a result, Bazelon approvingly argues: “increasingly, scholars of constitutional law, as well as social scientists, are beginning to question the way we have come to think about the First Amendment’s guarantee of free speech.”

But perhaps the most potent and disturbing trend illustrating how rapidly this erosion is taking place is that it has even infected sectors of the organization that has, for decades, been the most stalwart, principled, and unflinching defender of free speech: the American Civil Liberties Union. Internal debates over whether the group should retreat from its long-standing free speech position have been festering for years.

One of the most intense crises in the organization’s history came in 2017 when ACLU lawyers defended a white supremacist group that was denied a permit by the city of Charlottesville, Virginia to protest in a prominent and symbolically important public square. The ACLU prevailed, and when one of the extremists in that group plowed his car into a group of counter-protesters, killing 32-year-old Heather Heyer, numerous ACLU activists and even some lawyers angrily insisted that the group should not represent the free speech rights of racist or neo-fascist groups.

The ACLU’s leadership then issued a series of confusing statements and memos that suggested at least somewhat of a retreat from their long-standing organizational posture, though Executive Director Anthony Romero insists that they were simply re-affirming what had always been the group’s policy regarding armed protesters.

But today’s SYSTEM UPDATE episode is devoted not to my views on these questions but those of Ira Glasser, who served as the Executive Director of the ACLU from 1978-2001, when he retired shortly before the 9/11 attack.

Glasser is an old-school civil libertarian in the best and most classic sense of that term. One of his first challenges upon assuming his leadership position was dealing with the fallout of the crisis the ACLU faced in that era: public and internal fury that its largely Jewish lawyers had represented a neo-Nazi group’s right in 1977 to march through the town of Skokie, Illinois, which had not only a large Jewish population but one with thousands of survivors of the Nazi death camps. Glasser steadfastly defended the nobility of that position even as donors and even some staff members left in droves, threatening the ongoing viability of the group, and he continues with great eloquence, and with great relevance to our current debates, to defend that decision today (on its site, the ACLU also continues to defend that Skokie case as one of its proudest and most important moments).

Glasser has not been shy about very vocally and vehemently criticizing what he regards as a retreat by the modern-day ACLU from the organization’s long-standing mission. He is particularly scathing about how the politicized money that has poured in has caused the group to pursue standard-issue liberal policy goals at the expense of the Constitutional rights it once uniquely and fearlessly defended.

What fascinated me most was Glasser’s recounting of the Skokie controversy was how African American civil rights leaders of the 1970s and 1980s were among his staunchest allies and supporters when it came to defending the free speech rights of white supremacists groups — because they knew they would be among the first to be targeted by successfully implemented precedents of state censorship. Equally fascinating is Glasser’s invocation of his experience, as a Jewish leftist, and how it led him to believe that defending the free speech rights of those whose views he found most repugnant was not just ethically right but a matter of self-interest.

Glasser is an important figure in the political and legal battles of the 20th Century. He remains an incredibly eloquent advocate and compelling thinker on all of these issues. Too many people are unaware of this history.