ACLU faltering on free speech

They seem to have virtually given up on free speech at universities and colleges so defending only "nice" speech could well be their next retreat

Since the violence in Charlottesville, Va., set off by alt-right demonstrations, the American Civil Liberties Union has been weighing whether it should provide legal support to groups that engage in violence. Credit Edu Bayer for The New York Times
Howard Simon has been leading chapters of the American Civil Liberties Union longer than anyone else, a career that has spanned 43 years and countless controversies.

He has helped the Ku Klux Klan rally at a state capitol and defended the right of a Florida pastor to burn a Quran, an affront that led to a deadly riot halfway around the world. And in the late 1970s, he recalls appearing in just about “every synagogue in Michigan,” where he was then based, to explain why the A.C.L.U. was defending a planned neo-Nazi march in Skokie, in neighboring Illinois.

But he cannot recall any case that has provoked as much soul-searching within the A.C.L.U. as the organization’s decision in August to sue on behalf of a man organizing a white supremacist rally in Charlottesville, Va. That rally ended not in a memorable First Amendment victory, but a violent melee that left one woman dead and dozens injured, provoking horror around the country.

“I just think the emotion and depth of agonizing was deeper than I can remember,” said Mr. Simon late last month, after returning from an A.C.L.U. conference in Denver. Within the A.C.L.U., many people were taken aback by “this rise of the armed alt-right,” Mr. Simon said, referring to the size and aggressiveness of the white supremacist turnout in Charlottesville, as well as the presence of people openly carrying guns.

Since then, a question has hung over the organization: What will it do the next time the alt-right seeks the A.C.L.U.’s help?

That question that has cut fault lines though the A.C.L.U., with a group of staff members sending an open letter taking issue with the organization’s longstanding work of defending white supremacists in free speech cases. “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,” says the letter, which a former member of the A.C.L.U.’s board, Michael Meyers, provided to The Times. About 200 staff members — the A.C.L.U. has about 1,300 full-time employees — signed onto the letter, according to a spokeswoman.

“This letter has to be seen for what it is — a repudiation of free-speech principles,” Mr. Meyers said.

The A.C.L.U.’s executive director, Anthony Romero, said in an interview that the organization was not, after Charlottesville, retreating from its longstanding defense of free speech, even hate speech — a tradition that goes back to the organization’s earliest years.

It is in the A.C.L.U.’s “DNA to defend speech from government censorship including, and especially, hateful speech in times when it is being shut down,” he said.

Still, after Charlottesville, the organization has been evaluating its criteria for accepting new free speech cases, Mr. Romero said.

One issue is how the A.C.L.U. should evaluate the potential for violence when representing groups seeking to hold demonstrations. “How do we balance a concern for public safety with freedom of speech?” Mr. Romero asked. Another question under consideration, he said, relates to how the A.C.L.U. should evaluate the credibility of organizers pledging a peaceful demonstration.

Mr. Romero also indicated that the organization is not inclined to represent groups seeking to hold armed rallies. This, he said, was not “a change in approach,” but a principle the A.C.L.U. espoused as far back as 1934.

An A.C.L.U. pamphlet issued that year defended the right of Nazis to hold meetings. But the pamphlet laid out the A.C.L.U.’s opposition to permitting Nazis to engage in “drilling with arms” — that is, wielding them in public.

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