Wendy Kaminer, Wall Street Journal, June 20, 2018

{snip}

But traditional free-speech values do not appeal to the ACLU’s increasingly partisan progressive constituency — especially after the 2017 white-supremacist rally in Charlottesville. The Virginia ACLU affiliate rightly represented the rally’s organizers when the city attempted to deny them a permit to assemble. Responding to intense post-Charlottesville criticism, last year the ACLU reconsidered its obligation to represent white-supremacist protesters.

The 2018 guidelines claim that “the ACLU is committed to defending speech rights without regard to whether the views expressed are consistent with or opposed to the ACLU’s core values, priorities and goals.” But directly contradicting that assertion, they also cite as a reason to decline taking a free-speech case “the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values.”

In selecting speech cases to defend, the ACLU will now balance the “impact of the proposed speech and the impact of its suppression.” Factors like the potential effect of the speech on “marginalized communities” and even on “the ACLU’s credibility” could militate against taking a case. Fundraising and communications officials helped formulate the new guidelines.

One half of this balancing test is familiar. The “impact of suppressing speech” — the precedents that suppression might establish, the constitutional principles at stake — is a traditional factor in case selection. But, traditionally, the ACLU has not formally weighed the content of speech and its consistency with ACLU values in deciding whether to defend it.

{snip} The guidelines assert that “no civil liberties or civil rights value should automatically be privileged over any other.” But it’s clear that free speech has become second among equals. Where is the comparable set of guidelines explaining when the ACLU should decline to defend gay-rights claims that infringe on religious liberty or women’s-rights cases that infringe on due process?

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. {snip}

{snip}

{snip} The organization hasn’t yet endorsed a ban on hate speech, or a broader definition of incitement. The guidelines affirm that “speakers have a right to advocate violence.” But {snip} “the ACLU generally will not represent protesters who seek to march while armed.”

All this is the ACLU’s prerogative. Organizations are entitled to revise their values and missions. But they ought to do so openly. The ACLU leadership had apparently hoped to keep its new guidelines secret, even from ACLU members. They’re contained in an internal document deceptively marked, in all caps, “confidential attorney client work product.” I’m told it was distributed to select ACLU officials and board members, who were instructed not to share it. {snip}