Once a bastion of free speech, the ACLU faces an identity crisis

The American Civil Liberties Union office in Washington. Photo / Ting Shen, The New York Times

It was supposed to be the celebration of a grand career as the American Civil Liberties Union presented a prestigious award to 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, Illinois, home to many Holocaust survivors.

Goldberger, now 79, adored the ACLU. 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 defence by the ACLU and that black people experienced offensive speech far more viscerally than white allies. In the hallway outside, an ACLU official argued it was perfectly legitimate for his lawyers to decline to defend hate speech.

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 ACLU 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."

David Goldberger, a Jewish lawyer who defended the free speech rights of Nazis in the 1970s, in Silver Spring, Maryland. Photo / Shuran Huang, The New York Times

The ACLU, 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 organisation 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 defence 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 ACLU.

The organisation, said its former director Ira Glasser, risks surrendering its original and unique mission in pursuit of progressive glory. "There are a lot of organisations fighting eloquently for racial justice and immigrant rights," Glasser said. "But there's only one ACLU that is a content-neutral defender of free speech. I fear we're in danger of losing that."

Ira Glasser, former executive director of the American Civil Liberties Union. Photo / Jeenah Moon, The New York Times

Founded a century ago, the ACLU took root in the defence 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 labour organisers 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 ACLU about free speech nowadays. Its annual reports from 2016 to 2019 highlight its role as a leader in the resistance against former President Donald Trump. But the words "First Amendment" or "free speech" cannot be found.

Since Trump's election, the ACLU budget has nearly tripled to more than US$300 million as its corps of lawyers doubled. The same number of lawyers — four — specialise in free speech as a decade ago.

Some ACLU 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.

A tragedy also haunts the ACLU's wrenching debates over free speech.

In August 2017, officials in Charlottesville, Virginia, rescinded a permit for far-right groups to rally downtown in support of a statue to Confederate general Robert E Lee.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

The ACLU 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 ACLU, and many assailed its executive director, Anthony Romero, and its national legal director, David Cole, as privileged and clueless. The ACLU 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 marginalised groups".

White nationalists march at the 'Unite the Right' rally in Charlottesville, Virginia. Photo / Getty Images

ACLU leaders asserted that nothing substantive had changed. "We should recognise the cost to our allies, but we are committed to represent those whose views we regard as repugnant," Cole said in an interview with The New York Times.

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 ACLU that used to exist would have said exactly the opposite."

A Common Enemy

The 2016 election blew like a hurricane over the ACLU.

Romero, who is Latino and the organisation's first nonwhite and openly gay executive director, arrived at the office just past dawn the next day. He crafted a letter to Trump and ran it as a full-page ad in the Times, attacking the President-elect on such issues as immigration and abortion rights. "If you do not reverse course and instead endeavour to make these campaign promises a reality," he warned, "you will have to contend with the full firepower of the ACLU."

The ACLU became an embodiment of anti-Trump resistance. More than US$1 million in donations sluiced into its coffers within 24 hours, and tens of millions of dollars followed in 2017, making the organisation better funded than ever before.

When Brett Kavanaugh was nominated for the Supreme Court, the ACLU surprised longtime supporters by entering the fray, broadcasting a commercial that strongly suggested the judge was guilty of sexual assault. When a book argued that the increase in the number of teenage girls identifying as transgender was a "craze" caused by social contagion, a transgender ACLU lawyer sent a tweet that startled traditional backers, who remembered its many fights against book censorship and banning: "Stopping the circulation of this book and these ideas is 100 per cent a hill I will die on."

The ACLU embraced dormitories set aside for black and Latino students and argued that police forces were inherently white supremacist.

The ACLU became an embodiment of anti-Trump resistance following the 2016 election. Photo / AP

Romero insisted he oversaw no retreat from the fight for free speech and points to key cases to underscore that. In recent years, the ACLU argued that the attempt by Governor Andrew Cuomo of New York to deny the National Rifle Association access to financial services infringed on freedom of speech, defended motorists' right to put the Confederate flag on specialty license plates, and criticised Facebook and Twitter for banning Trump.

"Am I sorry I leaned into our opposition to Trump? Hell no," Romero said. "I'm asked, 'Are we a free speech or racial justice organisation?' and I answer, 'Yes.' We are a domestic human rights organisation."

Dissent From Within

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

In interviews, several younger lawyers suggested a toll taken. Their generational cohort, they said, placed less value on free speech, making it uncomfortable for them to express views internally that diverged from progressive orthodoxy.

"A dogmatism descends sometimes" inside the ACLU, noted Alejandro Agustin Ortiz, a lawyer with the racial justice project. "You hesitate before you question a belief that is ascendant among your peer group."

A decade earlier, Dennis Parker, who is black and who directed the organisation's Racial Justice Programme until he left in late 2018, debated before taking a job at the ACLU. 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."

Groups protest in Freedom Plaza on the one year anniversary of Charlottesville's 'Unite the Right' rally. Photo / AP

After Charlottesville, 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 ACLU's institutional racism. The ACLU'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.

The ACLU held wide-ranging discussions with its staff, and summary sheets of those gatherings captured the raw feelings within. One group demanded that the ACLU "no longer defend white supremacists". Another said top leaders "are not to be trusted alone with making decisions on these delicate" questions.

The ACLU lawyers who defend speech acknowledged tension. "I don't sleep or eat well when I take cases defending such clients, but this is who we are," said Emerson Sykes, a black lawyer who previously worked to represent those who struggle for free speech and assembly across Africa. "I have worked in countries where the government locks you up for speech."

Other senior officials, however, pointedly distanced themselves from the Virginia affiliate, saying it failed to recognise the nature of its client.

"They got snookered," said a longtime senior leader with the ACLU involved with many decisions over the years. "We don't want to be in-house counsel for the NRA or the alt-right."

Written by: Michael Powell
Photographs by: Ting Shen, Jeenah Moon and Shuran Huang
© 2021 THE NEW YORK TIMES