How the ACLU Lost Its Bearings
By Wendy Kaminer
A version of this article first appeared in the Los Angeles Times on July 2, 2006
In 1940, THE American Civil Liberties Union expelled well-known radical leader Elizabeth Gurley Flynn from its board of directors for being a member of the Communist Party. Her expulsion proved predictably embarrassing and has long been considered a nadir for the organization. Flynn was kicked off the ACLU board for exercising 1st Amendment rights that the ACLU had been created to defend. She was posthumously reinstated in 1976.
But apologizing for sins of the past doesn't stop people from repeating them in the present. In 2006, thirty years after Gurley Flynn’s reinstatement, the ACLU once again considered censoring its board members, with new rules that would prohibit them from criticizing the ACLU publicly. This startling proposal was the culmination of a bitter internal battle over the organization's integrity and fidelity to principle that had spilled out into the press. According to ACLU leaders, some board members had been abusing their right to speak.
They were referring mainly to me and my former colleague on the ACLU board, Michael Meyers, so I don't approach this subject as an observer. Meyers and I had already been threatened with removal or suspension, in 2005, after we publicly criticized the ACLU's reported use of data-mining practices to gather information on members and donors. The effort to punish us was aborted only after New York Times reporter Stephanie Strom inquired into it. The board then established a committee on the fiduciary rights and responsibilities of its members in an apparent effort to pass rules that would keep us in line.
The committee's proposal, issued in May 2006, was a stunning repudiation of the ACLU's core principles. It included provisions that prohibited board members from criticizing the ACLU board or staff publicly and disparaged whistle-blowing (conduct the ACLU often applauds when it occurs in other institutions). Individual board members were admonished not to "call into question the integrity of the process in arriving at the board's decision." In other words, individual directors who had reason to believe that the board had acted unethically were said to have a fiduciary duty to conceal their concerns, not disclose them.
ACLU Executive Director Anthony Romero, then president Nadine Strossen, and the entire executive committee reviewed this proposal and approved its presentation to the board. (No one demurred when committee member Rob Remar characterized it as ”excellent.”) It was derailed by exposure in the New York Times. ACLU members and supporters reacted to news of the no dissent proposal with dismay; the New York attorney general's office privately expressed concerns about it to the ACLU’s counsel; and the organization's leaders quickly distanced themselves from this too obviously hypocritical effort to squelch dissent.
But this embarrassing episode was part of a pattern. Since 2001, under the leadership of Romero, Strossen, and her successor Susan Herman, the ACLU has repeatedly been caught practicing the opposite of what it preaches.
In July 2004, the board learned that Romero had quietly agreed to screen the organization's employees against terrorist "watch lists" — the same lists the ACLU has condemned — in order to qualify as an officially approved charity for federal employees. Strossen characterized Romero's action as "clever," but it was quickly rescinded after exposure in the Times.
This report was followed by Romero's admission that early in his tenure at the ACLU, he had privately advised the Ford Foundation to "parrot" the Patriot Act in formulating controversial new restrictions on the speech of its grantees — restrictions Romero then quietly accepted on the ACLU's behalf. (After a protracted debate, the board approved the Ford restrictions and then narrowly reversed itself, after embarrassing publicity about the ACLU’s watch list agreement with the government.)
A year later, in 2005, Romero was caught trying to impose very broad confidentiality agreements and technology rules on ACLU employees, similar to workplace rules that the ACLU officially opposes. Like the proposal governing board members' rights to speak, the agreements nearly imposed on the staff (but withdrawn after they became public) included a virtual gag rule; they also would have required the staff to acknowledge that all their communications on ACLU systems were subject to surveillance. Nadine Strossen defended these proposals in an email to the board, cheerfully noting her bizarre "presumption" that they "facilitate the ACLU’s commitment to both privacy and free speech."
In keeping with its perverse new notion of free speech, the ACLU leadership took aim at internal board critics, particularly Michael Meyers and me. We were derided as "egocentric assholes," "diva's," and even "psychotics." One board member, subsequently elected to the board’s executive committee, suggested that we "fuck off and die" and referenced me as a "fucked out boozy bitch." ACLU leaders also obscured the facts, spreading misinformation among board members and supporters. Romero responded to the damaging revelation that he had approved a government watch list agreement, for example, by misrepresenting his lawyers’ advice regarding the responsibilities and liabilities that the agreement imposed. Everyone makes mistakes, of course; what turns mistakes into misconduct are efforts to cover them up.
This is how an organization loses its moral bearings: Its members are caught between loyalty to the institution and loyalty to the institution's ideals. Supporters of the Romero/Strossen administration blamed the ACLU's internal critics for lending comfort to its enemies on the right during a civil liberties emergency, echoing the Bush administration’s charge that its critics were aiding terrorists during a national security emergency.
When the ACLU acts like the government, it risks undermining its credibility in criticizing the government. When it elevates public relations over policy, it loses its brashness and its proclivity to take risks to preserve civil liberty. Of course, the ACLU still challenges governmental abuses, especially in high-profile, national security cases that facilitate fund-raising. It sued the Bush Administration for its warrant-less spying program, for example, and filed Freedom of Information Act claims that helped reveal grievous post 9/11 abuses. But, as the ACLU cracked down on its own internal dissenters, it became a less reliable defender of a free press and controversial or politically incorrect speech, even in the most compelling cases:
When the U.S. State Department condemned publication of the notorious Muhammad cartoons in 2005, and newspapers in the U.S. declined to publish them, the ACLU was virtually silent. In fact, talking points issued by the press office addressing torture at Abu Ghraib while the cartoon controversy was raging recommended ducking questions about the cartoons, by exhorting the U.S. government to "take the Abu Ghraib images seriously." This was predictably defended as an effort to "stay on message." Three years later, in 2008, despite a new focus on international human rights, the ACLU declined to join a free speech coalition opposing a U.N. defamation of religion resolution that targeted criticism of Islam.
The ACLU also had little to say about the 2005 jailing of New York Times reporter Judith Miller during the investigation of the Valerie Plame leak. We "were not very out front on commenting" on the Miller case, talking points from the press office acknowledged, attributing the ACLU's silence to the presence of "many eloquent advocates in this case." Civil libertarians accustomed to viewing the ACLU as the leading "eloquent advocate" for a free press and free speech should be prepared for more moments of silence.
Copyright 2006 Wendy Kaminer
The American Liberal Liberties Union
By Wendy Kaminer
A nearly identical version of this article was first published in the Wall Street Journal on May 23, 2007
"ACLU Defends Nazi's Right to Burn Down ACLU Headquarters," the humor magazine The Onion announced in 1999. Those of us who loved the ACLU, and celebrated its willingness to defend the rights of Nazis and others who had no regard for our rights, considered the joke a compliment. Today it's more like a reproach. Once the nation's leading civil liberties group and a reliable defender of everyone's speech rights, the ACLU is being transformed into just another liberal human-rights group that reliably defends the rights of liberal speakers.
This transformation is gradual, unacknowledged and not readily apparent, since evidence of it lies mainly in cases the ACLU does not take. It's naturally easier to know what an organization is doing (and advertising) than what it is not doing. But a review of recent free-speech press releases turns up only a handful of cases in which ACLU state affiliates defended the rights of conservative, anti-gay or otherwise politically incorrect speakers. And lately the national organization has been remarkably quiet in several important free-speech cases and controversies.
One of the clearest indications of a retreat from defending all speech regardless of content was the ACLU's virtual silence in Harper v. Poway, a recent federal case involving a high-school student's right to wear a T-shirt condemning homosexuality. Of course, the ACLU doesn't speak out on every case, but historically it has vigorously defended student speech rights, as its Web site stresses. In fact, while it avoided intervening in the Harper case, the ACLU was boasting of its representation of a student in a no more compelling free speech case, Morse v. Frederick, involving the right of a student to carry a nonsensical "Bong Hits 4 Jesus" banner at an off-campus event. The ACLU pays particular attention to the right to wear T-shirts with pro-gay messages in school, proudly citing cases in which it represented students wearing pro-gay (as well as anti-Bush) T-shirts. In 2007, the ACLU awarded a Youth Activist Scholarship to a student who fought the efforts of her school to bar students from wearing T-shirts that said "Gay, Fine by me."
So, in 2004, when Tyler Chase Harper was disciplined for wearing a T-shirt declaring his religious objections to homosexuality, civil libertarians might have expected the ACLU to protest loudly. Harper was barred from attending classes when he wore the anti-gay T-shirt to school on an official "Day of Silence," when gay students taped their mouths to symbolize the silencing effect of intolerance. Represented by the Alliance Defense Fund, he sued the school district. Less than a year later, the ACLU sued a Missouri school that punished students for wearing "gay supportive T-shirts," eventually securing a promise from the school to "stop censoring," the ACLU Web site boasts. Harper, however, was unsuccessful in his quest to stop school censorship. In a patronizing, anti-libertarian decision in which Judge Stephen Reinhardt stressed the imagined feelings of gay students, the Ninth Circuit rejected Harper's First Amendment claims. (There was a sharp dissent from Judge Alex Kozinski.)
Perhaps the ACLU was observing its own prolonged Day of Silence, because, while it pays close attention to federal appellate court decisions on civil liberties, it effectively ignored this terrible precedent, even when Harper appealed to the Supreme Court. The Court dismissed the case as moot because Harper had graduated but took the unusual step of vacating the decision so that it no longer exists as precedent (no thanks to the ACLU). Harper's younger sister, still in school, continued pressing his claims and finally, after its prolonged silence in the Harper case was publicly criticized, [by this op ed in the Wall Street Journal] the ACLU filed an amicus brief in her case.
The Harpers didn't need representation from the ACLU. But the organization frequently speaks up for the rights of people it does not represent, like Guantanamo detainees, and often files amicus briefs in important civil liberties cases. Given its focus on student rights and religious liberty (one of the ACLU's priorities), it's hard to explain the ACLU's apparent equanimity about the violation of Harper's First Amendment rights -- unless you consider the content of his speech.
This case does not appear to be anomalous. Despite its professed commitment to religious liberty, for example, the ACLU tends to absent itself from cases on college campuses involving the associational rights of Christian student groups to discriminate against gay students, in accordance with their religious beliefs. But conservative students might be grateful for the ACLU's absence. Consider its intervention in a successful federal court challenge to an unconstitutional speech code at Georgia Tech, brought by the Alliance Defense Fund in 2006 on behalf of two conservative religious students. The ACLU of Georgia filed an amicus brief proposing a substitute but still overbroad "anti-harassment" policy that included a prohibition on "injurious communications . . . directed toward an individual because of their characteristics or beliefs." In other words: Students should be punished for sharply criticizing or satirizing each other's beliefs if their remarks are deemed "injurious." Occasionally an ACLU affiliate does intervene in defense of politically incorrect speech and vigorous debate on campus. But the Foundation for Individual Rights In Education (FIRE) has become a much more reliable advocate for the rights of all college students, regardless of ideology or religion. (I serve on both FIRE's advisory board and the board of the Massachusetts ACLU affiliate.)
The ACLU was even AWOL in one of the most visible and frightening free-speech controversies in recent years -- the Muhammad cartoons, which many condemned as "hate speech." When Muslim groups violently protested the cartoons (first published in the Danish press), when American newspapers declined to publish them for fear of reprisals, and when the U.S. State Department condemned their publication -- the ACLU exercised its right to remain silent. In fact, its press office actually advised ducking questions about the cartoons that might arise during discussions of torture at Abu Ghraib. Not until an ACLU donor complained about this silence on the cartoon controversy, and questions about it were raised before the ACLU board, did Executive Director Anthony Romero speak up -- quietly. He mentioned the controversy in a relatively obscure dinner speech to the National Association of Hispanic Journalists. He sent a letter to the University of Illinois urging it not to discipline student editors who published the cartoons in a campus paper. In a letter circulated to the ACLU board, Romero both denied and defended the ACLU's relative silence: "With regard to the cartoons, rather than put out a hortatory statement that no one would read (except insiders) but might make us feel good about ourselves, we have tried to engage in thoughtful forums and discussions that relate to the issue. Speaking out on an issue involves more than slapping a paragraph together and posting it on a website."
Perhaps. But, like other advocacy groups, the ACLU routinely circulates hortatory statements to insiders that herald the organization's important work. And it regularly posts slapped-together paragraphs on the ACLU Web site (and in emails) about the abuses of the Bush administration, among other subjects. In fact, much of the ACLU's post 9/11 work, and its budget priorities, involve public education. Whatever Romero's reasons for staying out of the cartoon controversy, they did not include disdain for paying lip service to free speech.
Why did the ACLU avoid issuing a loud and clear public statement decrying violent efforts to suppress the Muhammad cartoons? Its silence may have reflected growing sympathy among ACLU leaders and supporters for restricting what many liberals condemn as hate speech. "Take hate speech," Romero remarked to the New York Times in May 2006. "While believing in free speech, we do not believe in or condone speech that attacks minorities." (He was commenting on a proposal to bar board members from criticizing the ACLU -- a proposal that was amended only after being exposed in the Times.)
Liberal sympathy for restricting hate speech may also explain the failure of the New York Civil Liberties Union to oppose the New York City Council's symbolic moratorium on use of the n-word. NYCLU Executive Director Donna Lieberman justified her silence to the New York Times, explaining that, "The Council is entitled to a point of view. It would be an entirely different matter if the Council was considering a law to ban use of the n-word." But this ignores the natural tendency of an official, symbolic ban on speech to encourage support for an actual ban. If the City Council passed a symbolic resolution denouncing flag burning or criticizing the president, I'd bet my yearly contribution to the ACLU that Lieberman would oppose it vociferously.
Finally, the ACLU has affirmatively supported legislative restrictions on speech it does not like. In March, 2006, the ACLU announced its support for a bill introduced by Rep. Carolyn Maloney (D., N.Y.) aimed at barring anti-abortion centers from advertising "abortion counseling" services. While some crisis pregnancy centers that offer abortion counseling can fairly be accused of engaging in a bait and switch (trying to lure women seeking abortions into counseling sessions with anti-abortion advocates), they're also engaged in political speech at the core of First Amendment protections. Not surprisingly, the ACLU's endorsement of legislation restricting this speech generated controversy when it was reported in the New York Sun. How did ACLU leaders respond? The press release announcing support for the Maloney bill was deleted from the ACLU Web site. One year later, the national board was seriously considering adopting a policy on commercial speech that would support restrictions on advertising by nonprofit anti-abortion clinics.
This is not the same organization that once took pride in its costly, principled decision to defend the rights of Neo-Nazis to march in a community of Holocaust survivors in Skokie, Ill. Of course the ACLU hasn't definitively abandoned its defense of speech: Large, national organizations change incrementally. But people should no longer depend on the ACLU to defend what they preach (especially at a cost), if it disapproves of what they practice.