Posted on June 10, 2021

Once a Bastion of Free Speech, the A.C.L.U. Faces an Identity Crisis

Michael Powell, New York Times, June 6, 2021

It was supposed to be the celebration of a grand career, as the American Civil Liberties Union presented a prestigious award to the longtime lawyer David Goldberger. He had argued one of its most famous cases, defending the free speech rights of Nazis in the 1970s to march in Skokie, Ill., home to many Holocaust survivors.

Mr. Goldberger, now 79, adored the A.C.L.U. But at his celebratory luncheon in 2017, he listened to one speaker after another and felt a growing unease.

A law professor argued that the free speech rights of the far right were not worthy of defense by the A.C.L.U. and that Black people experienced offensive speech far more viscerally than white allies. In the hallway outside, an A.C.L.U. official argued it was perfectly legitimate for his lawyers to decline to defend hate speech.

Mr. Goldberger, a Jew who defended the free speech of those whose views he found repugnant, felt profoundly discouraged.

“I got the sense it was more important for A.C.L.U. staff to identify with clients and progressive causes than to stand on principle,” he said in a recent interview. “Liberals are leaving the First Amendment behind.”

The A.C.L.U., America’s high temple of free speech and civil liberties, has emerged as a muscular and richly funded progressive powerhouse in recent years, taking on the Trump administration in more than 400 lawsuits. But the organization finds itself riven with internal tensions over whether it has stepped away from a founding principle — unwavering devotion to the First Amendment.

Its national and state staff members debate, often hotly, whether defense of speech conflicts with advocacy for a growing number of progressive causes, including voting rights, reparations, transgender rights and defunding the police.

Those debates mirror those of the larger culture, where a belief in the centrality of free speech to American democracy contends with ever more forceful progressive arguments that hate speech is a form of psychological and even physical violence. These conflicts are unsettling to many of the crusading lawyers who helped build the A.C.L.U.

The organization, said its former director Ira Glasser, risks surrendering its original and unique mission in pursuit of progressive glory.

“There are a lot of organizations fighting eloquently for racial justice and immigrant rights,” Mr. Glasser said. “But there’s only one A.C.L.U. that is a content-neutral defender of free speech. I fear we’re in danger of losing that.”

Founded a century ago, the A.C.L.U. took root in the defense of conscientious objectors to World War I and Americans accused of Communist sympathies after the Russian Revolution. Its lawyers made their bones by defending the free speech rights of labor organizers and civil rights activists, the Nation of Islam and the Ku Klux Klan. Their willingness to advocate for speech no matter how offensive was central to their shared identity.

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.

Since Mr. Trump’s election, the A.C.L.U. budget has nearly tripled to more than $300 million as its corps of lawyers doubled. The same number of lawyers — four — specialize in free speech as a decade ago.

Some A.C.L.U. lawyers and staff members argue that the First Amendment, which guarantees freedom of speech and the press — as well as freedom of religion, assembly and petitioning the government — is more often a tool of the powerful than the oppressed.

“First Amendment protections are disproportionately enjoyed by people of power and privilege,” said Dennis Parker, who directed the organization’s Racial Justice Program until he left in late 2018.

To which David Cole, the national legal director of the A.C.L.U., rejoined in an interview: “Everything that Black Lives Matter does is possible because of the First Amendment.”

A tragedy also haunts the A.C.L.U.’s wrenching debates over free speech.

In August 2017, officials in Charlottesville, Va., rescinded a permit for far-right groups to rally downtown in support of a statue to the Confederate general Robert E. Lee. Officials instead relocated the demonstration to outside the city’s core.

The A.C.L.U. of Virginia argued that this violated the free speech rights of the far-right groups and won, preserving the right for the group to parade downtown. With too few police officers who reacted too passively, the demonstration turned ugly and violent; in addition to fistfights, the far right loosed anti-Semitic and racist chants and a right-wing demonstrator plowed his car into counterprotesters, killing a woman. Dozens were injured in the tumult.

Revulsion swelled within the A.C.L.U., and many assailed its executive director, Anthony Romero, and legal director, Mr. Cole, as privileged and clueless. The A.C.L.U. unfurled new guidelines that suggested lawyers should balance taking a free speech case representing right-wing groups whose “values are contrary to our values” against the potential such a case might give “offense to marginalized groups.”

A.C.L.U. leaders asserted that nothing substantive had changed. {snip}

But longtime free speech advocates like Floyd Abrams, perhaps the nation’s leading private First Amendment lawyer, disagreed. The new guidelines left him aghast.

“The last thing they should be thinking about in a case is which ideological side profits,” he said. “The A.C.L.U. that used to exist would have said exactly the opposite.”


The A.C.L.U. became an embodiment of anti-Trump resistance. More than $1 million in donations sluiced into its coffers within 24 hours and tens of millions of dollars followed in 2017, making the organization better funded than ever before. Salaries reflected that — Mr. Romero now makes $650,000 and some lawyers in senior management $400,000. Its 2017 annual report came with “RESIST” superimposed on an image of the Statue of Liberty.


The A.C.L.U. embraced dormitories set aside for Black and Latino students and argued that police forces were inherently white supremacist. “We need to defund the budgets,” Mr. Romero said last year. “It’s the only way we’re going to take power back.”


“Am I sorry I leaned into our opposition to Trump? Hell no,” Mr. Romero said. “I’m asked, ‘Are we a free speech or racial justice organization?’ and I answer, ‘Yes.’ We are a domestic human rights organization.”


The money that flooded into the A.C.L.U. after Mr. Trump’s election allowed Mr. Romero to flex the organization’s progressive muscles and greatly increase the size of its staff. Many of the new employees, however, were not nearly as supportive of the A.C.L.U.’s traditional civil liberties work. They worked inside their policy silos, focused on issues like immigration, transgender rights and racial justice.


Less than two months after that terrible day in Charlottesville, Claire Gastanaga, then the executive director of the A.C.L.U. chapter in Virginia, drove to the College of William & Mary to talk about free speech. One of her board members had resigned after Charlottesville, tweeting, “When a free speech claim is the only thing standing in the way of Nazis killing people, maybe don’t take the case.”

Ms. Gastanaga planned to argue that by defending the rights of the objectionable, the A.C.L.U. preserved the rights of all. She walked onstage and dozens of students who proclaimed themselves allied with Black Lives Matter approached with signs.

“Good, I like this,” Ms. Gastanaga said. “This illustrates very well ——”

Those were the last of her words that could be heard.

“A.C.L.U., you protect Hitler, too!” the students chanted, setting up a line that stretched the width of the stage.

They stood in front of the stage and Ms. Gastanaga and for half an hour blocked anyone in the audience from approaching and talking with her. She eventually left.

“The revolution,” the students chanted, “will not uphold the Constitution.”

The debate inside the A.C.L.U. proved scarcely less charged. “People were rubbed raw,” said Mr. Parker, who directed its racial justice project and took part in these impassioned discussions. “I’ve never seen anything like it.”

A decade earlier, Mr. Parker, who is Black, debated before taking a job at the A.C.L.U. He had worried about representing white fascists of the sort who paraded about in Charlottesville. “I have a predisposition to be less concerned about the rights of people who would like to see me dead, and that did complicate my decision.”

After Charlottesville, Mr. Cole wrote an essay in The New York Review of Books that defended the decision. “We protect the First Amendment not only because it is the lifeblood of democracy and an indispensable element of freedom, but because it is the guarantor of civil society itself,” he wrote.

That ignited anger among some 200 staff members, who signed a letter stating the essay was “oblivious” to the A.C.L.U.’s institutional racism. The A.C.L.U.’s upper ranks are diverse; 12 of the top 21 leaders are either Black, Latino or Asian. Fourteen are women.

“David’s approach fails to consider how our broader mission — which includes advancing the racial justice guarantees in the Constitution and elsewhere, not just the First Amendment — continues to be undermined by our rigid stance,” they wrote.


Traditionally, the A.C.L.U.’s state affiliates monitor and argue free speech cases, but in recent years some shied from such fights. Here are a few examples:

In 2015, University of Missouri students protested racism and established an encampment in a campus quad. When a student journalist tried to take photos and talk to protesters, students and a communications professor physically blocked the reporter from doing so. The A.C.L.U. of Missouri applauded the “courageous” leadership of student activists and faculty members, and two national A.C.L.U. officials wrote columns about the protests. They did not mention First Amendment rights.

Four years later at the University of Connecticut, two white students walking home late at night loudly repeated a racial slur. In the ensuing uproar, the university police arrested and charged the students with ridicule on account of race.

The A.C.L.U. of Connecticut demanded that the university hire 10 Black faculty and staff members and require a freshman course on ending racism on campus. It made no mention of the arrests, other than to opine that the police force is “an inherently white supremacist institution.”

Two days later, Mr. Cole issued a corrective: The students’ conduct “is not criminal,” he stated. “The First Amendment protects even offensive and hateful speech.”