Letter from Washington: How the left fell out of love with the First Amendment
The drift of the ACLU is symptomatic of a wider problem among American progressives
Some of the biggest winners of the Trump era were the forty-fifth president’s most vocal opponents. America’s liberal newspapers prospered. Ratings for left-leaning television news channels soared. At the American Civil Liberties Union, business boomed. According to the Wall Street Journal, the ACLU quadrupled its membership after Trump was elected in 2016. Its budget soared from $115 million in 2015 to $330 in 2020.
But, like the MSNBC and CNN executives panicking over plummeting viewing figures, the ACLU leadership is searching for its role now that Trump has gone. The answer appears to involve drifting yet further away from litigation to defend core constitutional rights – the purpose for which the organisation was founded a century ago – and towards all-purpose progressive campaigning. Last month, for instance, it launched its “systemic equality” racial justice agenda designed to “dismantle white supremacy”. As part of that effort, the organisation will push for reparations for slavery, student debt forgiveness, expanded access to high-speed broadband and child tax credits.
It is a far cry from the work on which the organisation built its reputation. Throughout the second half of the twentieth century, the ACLU was the foremost defender of American citizens’ first amendment rights. It was famous for demonstrating its commitment to those rights no matter the content of the speech, defending the rights of klansman to march about in bed sheets and, perhaps most famously, Illinois Nazis‘ rights to demonstrate in the case of National Socialist Party of America v. Village of Skokie.
Today, that defining commitment to freedom of speech has been subsumed into the policy priorities that increasingly make the ACLU indistinguishable from the many other well-funded progressive nonprofits that populate the political scene in Washington. As Ira Glasser explained to me in a conversation this week, a great deal has been lost in the process. Glasser ran the ACLU from 1978 to 2001 and is the subject of a recent documentary, Mighty Ira, which tells of his rise from a Brooklyn boy obsessed with the Dodgers and their star player Jackie Robinson (the first African American to play baseball in the major leagues) to a prominent and often unpopular defender of free expression in the United States.
“‘Progressive’ doesn’t seem to include any sort of commitment to or belief in the value of speech,” Glasser tells me on a video call from his New York home. “The disaffection towards free speech rights is now coming from liberal quarters.” Increasingly, Glasser (who would have been considered an impeccable liberal throughout his career) worries that those on the left, “seem to believe that free speech is an impediment to social justice”.
“And I think they believe that because so many advocates of free speech today seem to be on the right and seem to be opposed to social justice,” he says. “But whatever it is, it’s historically wrong and strategically stupid. The truth is that every movement for social justice in America has always depended upon and required free speech rights.”
In 2018, after an internal backlash against the Virginia ACLU chapter’s defence of white nationalists’ right to protest in Charlottesville the previous year, a leaked memo revealed that the ACLU instructed its lawyers to consider, “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 “impact of the proposed speech” when deciding what cases to take.
Glasser calls this an “unprecedented backing off” by the ACLU from its commitment to free speech and asks, “If the ACLU is not going to support speech in a vigorous and unqualified way, who was?” As Glasser points out, “if we had considered what the impact of Nazi speech would have been in the Skokie case, we would never have taken the case.”
The left-wing case for freedom of speech has become even harder to make since 6 January this year, when a mob of Trump supporters stormed the Capitol. The riot spurred a social media crackdown on the former president and many of his most vocal cheerleaders. The defence of the universal right to protest is as unfashionable as it has been for decades. Would the ACLU support the right of the Proud Boys, or some other group allegedly involved in the violence of 6 January to protest on the mall again? “If the ACLU exists for anything,” Glasser says, it is for such a case. “Disgust over what those groups did when they entered Congress and the violence they committed must not be allowed to be a justification for not protecting peaceful demonstrations,” he says.
These days, the battles over free speech are conducted on different territory to the ground Glasser is most familiar with, something we were reminded of last week when the big tech barons gave evidence to congress on “disinformation”, moderation, censorship and extremism. Tim Wu, a vocal critic of the tech giants who now sits on Joe Biden’s National Economic Council, has wondered whether the first amendment is “obsolete”.
But talking to Glasser is a reminder that however much the conversation over free expression has changed, the principles at stake remain the same. This is a dangerous time for free expression, he says: “I don’t know where the constituency for free speech is going to come from… Both the left and the right only support speech rights when it’s their own speech rights. And if people only support the rights of people they agree with, then you can’t protect speech.”
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