The Changing Prerogatives of Civil Liberties and Free Speech Organizations
Organizations that should be at the forefront in defending free expression and open discourse are ceding ground to illiberalism or even actively abetting it.
Even as the country and the world at large appear to be straying from liberal values like free expression, some of the very organizations founded as stalwart defenders of those ideals seem at best indifferent, and at worst, leading the vanguard toward their destruction.
While it has become almost a cliche to point out how far the American Civil Liberties Union (ACLU) has come since its defense of literal Nazis in the 1970s, other prominent voices are also showing signs of weakness in standing up for basic liberties.
Recapping the “New” ACLU
This past June, New York Times journalist Michael Powell wrote more than 3,500 words on the identity crisis facing the organization. Given its storied past defending the First Amendment rights of the aforementioned American Nazi Party, as well as the Ku Klux Klan, the Nation of Islam and communist sympathizers, one paragraph in Powell’s piece seems particularly damning:
One hears markedly less from the A.C.L.U. about free speech nowadays. Its annual reports from 2017 to 2019 highlight its role as a leader in the resistance against President Donald J. Trump. But the words “First Amendment” or “free speech” cannot be found. Nor do those reports mention colleges and universities, where the most volatile speech battles often play out.
Powell also notes that despite a tripling of the organization’s budget and doubling of the number of lawyers on staff, only four of those lawyers focus on free speech.
Another New York Times article from earlier in the year contained an eyebrow-raising quote from racial justice director Rahsaan Hall of the Massachusetts chapter of the ACLU. After an investigation of an incident at Smith College showed that a campus janitor had been unjustly accused of racially profiling a student, Hall had little sympathy:
“It’s troubling that people are more offended by being called racist than by the actual racism in our society,” he said. “Allegations of being racist, even getting direct mailers in their mailbox, is not on par with the consequences of actual racism.”
Old Left journalist and provocateur Glenn Greenwald has been particularly critical of the ACLU, noting on more than one occasion the deterioration in the group’s commitment to its core principles. In April, Greenwald pointed out that the ACLU punted when asked to weigh in on Facebook’s censorship of a New York Post expose on a Black Lives Matter’s co-founder. More recently, Greenwald wrote, the ACLU actually argued that, in the case of COVID vaccine, government mandates “further civil liberties,” a sharp contrast to the organization’s present views on other issues of “bodily autonomy”.
Speaking of the ACLU’s defense of Nazi rights, Reason magazine’s NIck Gillspie posed the question in January of this year, “Would the ACLU Still Defend Nazis' Right To March in Skokie?” Gillspie interviewed former ACLU executive director Ira Glasser, and the answer was anything but certain. Glasser emphasized what used to differentiate the ACLU from being just another progressive organization:
There are a lot of progressive political groups out there. I'm glad to have more of them, because that's my politics too. But there's only one ACLU. It doesn't matter on whose behalf the immediate client is. What matters is you have to stop the government from gaining the power to decide. It's taken 100 years for the ACLU to develop from the 30 or 40 people that started it in 1920 to the powerhouse of civil liberties that it is today. If the ACLU isn't there for speech, who will be?
Fair Elections and Free Speech Center
A new center established in 2021, the Fair Elections and Free Speech Center at the University of California, Irvine School of Law, is already sending mixed signals about its core principles, warning of the potential dangers of free speech right out of the gate:
Fundamental to the Center’s work is a belief and understanding that free speech is essential to vibrant elections, fair competition, and democratic deliberation and that it also has the potential to serve as a tool for undermining fair elections and voter confidence in such elections. [Emphasis mine.]
UCI Professor Richard L. Hasen, the center’s director, recently argued in a piece at Slate that attorneys hired to represent Trump in his dubious election lawsuits should not be “welcomed back into polite society” or given opportunities to speak at legal conferences. Whatever your views on the election, a “Free Speech” center actively endorsing exile for attorneys representing the wrong clients seems suboptimal.
The Free Speech Project
The Free Speech Project of American University Washington College of Law, which collaborates with Slate on a joint project, raises concerns of its own. See its mission statement (emphasis added):
We will put the issues into a historical context, revisit the strengths of traditional free speech doctrine, look at the evolving regulation of political ads, address thorny issues of intermediary liability, examine the roles of foreign censors and foreign platforms, consider the harms speech can inflict on vulnerable communities, and ask whether the First Amendment needs an update. [Emphasis mine.]
While this project has made some positive contributions on Section 230 issues, it has also published some troubling articles. One focused on “The Conservative Disinformation Campaign Against Nikole Hannah Jones.” Rather than defending a robust debate, it writes off all criticism as “lies, moral accusations, misrepresentations and white racial appeals” that are “used to justify hate and harassment.” Though it concedes, with reservation:
Of course, it’s possible that some people repeating these talking points are doing so in good faith. But what distinguishes disinformation from its less malevolent cousin misinformation is an unwillingness to acknowledge when one is wrong; in the latter case, a newspaper printing a retraction, for instance.
The project also published a hyperbolic and alarmist article about journalist harassment online, failing to mention that journalists have led their own harassment campaigns and online pile-ons.
Ironically, Hannah-Jones herself is something of a serial offender when it comes to online attacks on her detractors. The most prominent example was Hannah-Jones’s posting of the phone number of a Washington Free Beacon reporter who had emailed requesting comment on a 2016 tweet where Hannah-Jones commented on (and spelled out) a racial slur. While the Times claimed the inclusion of the number was “inadvertent,” other tweets made it clear Hannah-Jones knew exactly what she had done.
When historian Phil Magness published a critique of the 1619 Project, Hannah-Jones reacted with undisguised contempt, lashing out with juvenile potshots at Magness rather than responding to his criticisms of the project. Writers Jesse Singal and Coleman Hughes have also found themselves targets of Hannah-Jones’s ad hominem invective. (Disclosure: Hannah-Jones blocked me on Twitter in 2020 for pointing out inconsistencies in her and the Times’s characterizations of the 1619 Project.)
Another Times journalist, Taylor Lorenz, has engaged in similar behavior aimed at shutting down her critics. (Disclosure: Lorenz also blocks me on Twitter.) And when Bari Weiss left the Times in 2020, she made clear that this type of behavior was widespread at the Old Gray Lady:
My own forays into Wrongthink have made me the subject of constant bullying by colleagues who disagree with my views. They have called me a Nazi and a racist; I have learned to brush off comments about how I’m “writing about the Jews again.”
International Network of Civil Liberties Organizations
While the International Network of Civil Liberties Organizations claims to be committed “to both equality and religious freedom,” there is reason to question their enthusiasm for the latter. While the INCLO used to issue a quarterly newsletter on “Global Developments in Religious Freedom and Equal Treatment,” in some recent years they’ve released just a single issue. Their last major report on religious freedom came more than six years ago, and concluded that governments were often correct to deny religious exemptions to laws.
Center for Constitutional Rights
Finally, the Center for Constitutional Rights (CFCR) is an interesting case. The CFCR is certainly more explicitly left-wing than some of its fellow civil liberties organizations. It's never had the imprimatur of being a staunch free speech advocate like the ACLU. But when you look at the list of "Issues" that the CFCR becomes involved with, it's clear that it is actually the Center for Some Constitutional Rights. For instance, Second Amendment rights are not part of its repertoire of concerns. Religious freedom also does not appear to be a major focus.
When you search "Free Speech" on its website, you'll see a clear trend in the types of First Amendment cases CFCR takes up. In the last year, it has defended the free speech rights of pro-Palestinian groups and pipeline protestors (even those who are facing felony trespassing charges). Whatever the merits of these particular cases, rarely do you see CFCR defend a group/individual whose expression is being suppressed that doesn't fit within a particular ideological perspective.
Where Does that Leave Us?
In short, some of the very organizations that should be at the forefront in defending free expression are themselves ceding ground to illiberalism or even actively abetting it. Fortunately, organizations like the Foundation for Individual Rights in Education (FIRE) and the newly formed Foundation Against Intolerance & Racism (FAIR) are picking up where the ACLU and others have left off.