14 votes

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

17 comments

  1. [12]
    JXM
    Link
    This quote really hits at the issue I see: “Content-neutral” is the key phrase here. That really says it all. To be a free speech absolutist is to come from a place of privilege. It means not...

    This quote really hits at the issue I see:

    “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.”

    Content-neutral” is the key phrase here.

    “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.

    That really says it all. To be a free speech absolutist is to come from a place of privilege. It means not considering the larger societal context of free speech beyond saying, “I support free speech, consequences be damned!”

    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.”

    A group of Nazis holding a rally in Illinois in the late 1970s would reach maybe a few hundred people? Now, they can reach millions of people instantly by live-streaming their rallies. That changes things. The world, as well as the consequences of defending such people, have changed.

    There has to be a balance between the right of people to say whatever they want and the right of others to not live in constant fear of being killed by right-wing, conservative extremists. I think the ACLU as an organization taking the time to think about that and how some of their work has been extremely vital and admirable, it has had some negative repercussions.

    21 votes
    1. [4]
      psi
      Link Parent
      I think this is the kernel of the problem. For some types, free speech absolutism is seen as a bedrock issue -- its importance is accepted almost dogmatically. But free speech, by itself, won't...
      • Exemplary

      To be a free speech absolutist is to come from a place of privilege. It means not considering the larger societal context of free speech beyond saying, “I support free speech, consequences be damned!”

      I think this is the kernel of the problem. For some types, free speech absolutism is seen as a bedrock issue -- its importance is accepted almost dogmatically. But free speech, by itself, won't provide life, liberty, and happiness. So why do people act as though free speech is the foundation for civilization?

      Let's dig a little deeper. Some free speech absolutists argue that free speech is necessary for the free exchange of ideas. But if your goal is to promote the free exchange of ideas, then why aren't you a free idea absolutist? After all, free speech works both ways: if you can use free speech to promote an idea, you can also use free speech to bully someone else from espousing theirs. Bullying impedes the free exchange of ideas.

      Others will argue that free speech is necessary for the function of democracy. Obviously it would be unacceptable for one political party to restrict speech they disagree with for purely political reasons (eg, imagine Republicans passed a law banning "Black lives matter" at rallies due to its "subversive nature"). But again, if this is your concern, then why isn't your foremost concern on maintaining a healthy democracy?

      So I propose an alternative ideal: democratic absolutism. I believe free speech is important insofar that it promotes public discourse and a more perfect union. Free speech, by itself, can't do that (what's the value of racial slurs, for example?). And unlike free speech absolutism, democratic absolutism encourages more than just talking -- it encourages action. People should play an active role in their government, and we should implement policy towards that end.

      19 votes
      1. [3]
        petrichor
        Link Parent
        That seems much more difficult to define than our current "free speech with these enumerated exceptions", though. I'm not even sure if I fully understand what would constitute as protected under...

        That seems much more difficult to define than our current "free speech with these enumerated exceptions", though. I'm not even sure if I fully understand what would constitute as protected under those terms.

        But with regard to democratic absolutism: would that mean that say, monarchists would be barred from expressing their views? With a more concrete example - what about communists? Advocating for seizing the means of production could be considered a threat to a healthy democracy - and has, historically in the US.

        My big worry is that something like democratic absolutism (or anything that isn't free speech, really) could be easily construed into "support this government or else". The reason why I'm such a fan of the First Amendment is that it's a very good and simple way of indirectly supporting democracy, even with the warts it can bring in.

        19 votes
        1. [2]
          psi
          (edited )
          Link Parent
          Maybe, maybe not. As you note, free speech absolutism is already unworkable since numerous types of speech have already been deemed illegal (let's not even start on obscenity), making free speech...

          That seems much more difficult to define than our current "free speech with these enumerated exceptions", though.

          Maybe, maybe not.

          As you note, free speech absolutism is already unworkable since numerous types of speech have already been deemed illegal (let's not even start on obscenity), making free speech absolutism incompatible with our current understanding of the first amendment. In that respect, I'm proposing an alternative framework for understanding the first amendment, one that displaces the problematic narrative free speech is axiomatically good with something more goal-oriented.

          Admittedly I'm not a lawyer, so democratic absolutism is only a half-baked judicial philosophy. Nevertheless, I think it's instructive for a colloquial understanding of what free speech should entail. Rather than focus on whether certain speech is legal, we should focus on whether that speech is useful. As Randall Munroe once wrote, appealing to free speech is about the worse argument you can make, as you're only contending that your speech isn't technically illegal.

          Previously I mentioned racial epithets being an example of particularly harmful speech that should be censured. But what of fact-free conspiracies like Q-anon? Free speech absolutists will defend these conspiracy theorists for their right to exist on social media, but free speech absolutists will overlook the tremendous harm these conspiracy theorists do to our democracy.

          Consider that public discourse is built on two pillars:

          1. facts, upon which arguments are based; and

          2. deductive/inductive arguments, which appeal to values.

          We can spend all day arguing about values -- do we, for example, believe that democracy is a laudable goal? -- but what we should never need to argue about are facts. And yet, we allowed Trump to promulgate baseless lies for months (consider that Rudy Giuliani, Sidney Powell, Fox News, etc have each been sued for $1+ billion by Dominion Voting Systems for defamation), eventuating in the first invasion of the US Capitol building since the war of 1812. Consider that most Republicans believe the election was stolen, and a forth of them still believe that "the government, media, and financial worlds in the U.S. are controlled by a group of Satan-worshiping pedophiles who run a global child sex trafficking operation".

          It's not just that free speech absolutism is ambivalent to improving public discourse; the movement actively undermines the effort.


          Now to address your specific inquiries.

          would that mean that say, monarchists would be barred from expressing their views?

          Monarchists (at least, the non-figurehead kinds) absolutely should be shunned from democracies, in my opinion. I mean, maybe we should have a dialogue with Putin to the extent it's necessary, but we should absolutely think less of him for being a monarchist.

          what about communists?

          Personally I'm not sure that democracy and communism are incompatible. Obviously one is reminded of the red scare as an example of government overreach. I can see how differ people might interpret democratic absolutism differently in these circumstances, but it's worth remembering that the first amendment didn't prevent the red scare, either.

          But I suppose that's a point for free speech absolutism. Still, given free speech absolutism's other drawbacks, I'd prefer to hone the definition of democratic absolutism instead.

          My big worry is that something like democratic absolutism (or anything that isn't free speech, really) could be easily construed into "support this government or else".

          I understand this concern, but if you can't trust your government, you also can't trust your constitution to protect you. If your government is equating a political party with the government, eg, then it's already behaving in a way that's undemocratic. A democratic absolutist would stand oppose this measure as much as a free speech absolutist.


          I assume the real issue here is that whenever one restricts free speech, the dividing line feels arbitrary and therefore exploitable. But there are only two options: either you have a dividing line or you don't. And almost nobody believes there shouldn't be a dividing line (if I were to write a book on this subject, I'd title it I'm Not a Free Speech Absolutist and Neither are You). The question, therefore, becomes by what principle should we draw that line? I propose democratic absolutism. What about you?

          9 votes
          1. Gaywallet
            Link Parent
            First off, I want to thank you for taking the time to share your thoughts on free speech. I wanted to take a second to pose a few questions to the reader who thinks free speech is an ultimate good...

            First off, I want to thank you for taking the time to share your thoughts on free speech. I wanted to take a second to pose a few questions to the reader who thinks free speech is an ultimate good to society and the backbone of the American spirit.

            How many times have you gone to an online community with clearly written rules, only to find a bad actor subverting them all and causing problems? How many times have you seen powerful legal entities in the news successfully get someone rich or powerful or a large company off from doing something that you know you would never be able to get away with yourself?

            Laws in America exist to be infinitely interpreted by language. There is no law that cannot be read multiple ways, and thus having a law which says 'all speech is allowed' will be interpreted in every possible way and every possible way will reach the court system and a group of individuals will have to weigh in on whether this makes sense or not. This latter part, I like to refer to as the 'spirit' of the law, and I think is an important part that often gets overlooked or not included when we talk about creating and enforcing laws.

            I personally believe that in a world that exists in shades of gray, that the spirit of a law is vastly more important and an integral part of framing how we enforce laws. I believe that the idea being posed here - democratic absolutism, exists more in the realm of the spirit of law, rather than what is written. I believe we need to move beyond the idea that words can ever perfectly capture an idea, and instead move towards a system designed to involve enough trained people at the important times to enforce the spirit of the law, rather than the word.

            You see, when we create any law, we're trying to apply it to circumstances that make sense in our head at the time - but we are limited by our own creative capacity. When we create a law to stop something we find morally reprehensible such as murder, we think in a defined space - we imagine someone attacking and killing someone and may forget to think about people defending themselves and of those who defend themselves may not be considering the difference between someone who intends to kill their attacker and escalates or those who are doing everything in their capacity to prevent a death. We can spend ages revising the law to try and accommodate (see, stand your ground laws), or we can move beyond the words to an understanding of spirit and design laws to accommodate the spirit of the law. When we allow a group of educated humans to weigh in, it takes almost no time for nearly everyone to recognize that there is a distinct difference between premeditated murder, and someone killing someone in self defense. If we exist in a system which supports interpretations of spirit, these humans can weigh in on and help to define what the law is attempting to capture (very similar to how we use case law) without having to amend the wording itself.

            I think we can all agree that there are situations in which free speech is damaging. We can probably all agree that there are certain ideas that we may not agree with which we think are damaging, but we may not have the expertise to assess whether they are actually damaging. We need to evolve beyond the letter of the law to reach a society in which we can have experts weigh in on how damaging this speech actually is to society, and can create systems which scale punishment and allowance based on these factors. If we get enough experts in a room together, we can surely set reasonable boundaries on hate speech of various kinds so as not to set precedence for all other kinds of speech (perhaps it shall be extremely limited and apply only to specific nazi points, or perhaps it shall be a bit more broad and classify what hate speech entails) but through interpretation, rather than specific word of law. But in order to do this, we need to abandon the idea that any written word can be perfect and that we need to get it 100% right the first time. We need to be okay with the idea that laws can evolve over time to match our current society and that threats today may not be threats tomorrow and that threats will emerge over time and we will need to adapt the spirit to fit them.

            7 votes
    2. nukeman
      Link Parent
      I don’t think that being a free speech absolutist (in a government legislation context) has to be considered a privileged position. Many of these same laws applied against far-right hate groups...

      I don’t think that being a free speech absolutist (in a government legislation context) has to be considered a privileged position. Many of these same laws applied against far-right hate groups also are used against BLM marchers. Indeed, the first Supreme Court case involving hate crimes legislation (Wisconsin v. Mitchell) had a white victim and a black perpetrator. Toward the end of the article, there is discussion about then-NYC mayor Rudy Giuliani’s attempt to block a Klan rally:

      Such reticence sounded like terra incognita to Norman Siegel, who led the New York group when Mayor Rudolph W. Giuliani tried to block the Ku Klux Klan from rallying downtown in 1999.

      The Klan was anathema to Mr. Siegel, but he fought like a cornered cat for its First Amendment rights. “Did I give anyone else a veto? No way,” he said. “I would have compromised my integrity.”

      Mr. Siegel, who is white, drew support from the Black publisher of The Amsterdam News and from the Rev. Al Sharpton, a Black activist, who filed suit in support of the N.Y.C.L.U. Mr. Siegel recalled receiving a standing ovation from a Black audience.

      “A woman came up and said: ‘You did the right thing. If Giuliani could shut down the Klan, he would do it to us,’” he recalled.

      16 votes
    3. [6]
      petrichor
      Link Parent
      Whether or not this is true, it shouldn't diminish the ACLU's presence. First Amendment protections are not disproportionately used by people of power because of the ACLU. Diminishing a civil...

      “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.

      Whether or not this is true, it shouldn't diminish the ACLU's presence. First Amendment protections are not disproportionately used by people of power because of the ACLU. Diminishing a civil liberty just because the more powerful use it more seems like an asinine proposition.

      Now, they can reach millions of people instantly by live-streaming their rallies.

      I don't agree that that changes things, though. News media has already accomplished this for hundreds of years.

      The underlying issue here is that whatever will be used to restrict speech against groups you don't like, will be used to quash political dissent, full stop. This is particularly evident in places like Russia - where a broader interpretation of "threats" has led to members of the opposition party being unjustly arrested.

      Extending our restrictions on free speech means trusting all future governments to always use these for good, which is something I can't do.

      10 votes
      1. [5]
        JXM
        Link Parent
        I agree in theory but I do think that groups like the ACLU should consider whether or not taking on a case defending a hate group will cause more harm to others than it will help by defending free...

        First Amendment protections are not disproportionately used by people of power because of the ACLU. Diminishing a civil liberty just because the more powerful use it more seems like an asinine proposition.

        I agree in theory but I do think that groups like the ACLU should consider whether or not taking on a case defending a hate group will cause more harm to others than it will help by defending free speech…these cases don’t happen in a vacuum. Just look at the Charlottesville case. Their actions in defending that case lead to that car plowing through a crowd and killing someone.

        The underlying issue here is that whatever will be used to restrict speech against groups you don't like, will be used to quash political dissent, full stop.

        You’re absolutely right. But there are also places around the world where that balance is struck in (to me) a much better way than it is in the US. Look at places in the EU that have more limited free speech. There’s a balance to be found.

        News media has already accomplished this for hundreds of years.

        I intensely disagree with that. 200 years ago, it took weeks for news to make it around the globe. 100 years ago, it took days. Now it takes literal seconds. You can click the “GO LIVE” button in Facebook and instantly be broadcasting to billions of users. And there isn’t anyone who can stop it. At least the news media like CNN could cut away if things went sideways and someone started killing people on live TV. Now, that doesn’t happen. The whole thing gets broadcast.

        I think that does change things.

        10 votes
        1. [4]
          petrichor
          Link Parent
          Hmm. What do you think the instantaneous nature and broader scope of modern media enables that makes it more dangerous than the slow or restricted media of days old? I think I just struggle to see...

          Hmm. What do you think the instantaneous nature and broader scope of modern media enables that makes it more dangerous than the slow or restricted media of days old?

          I think I just struggle to see the difference in terms of radicalization (?) between watching a live stream of someone, say, storming the Capitol and reading about it in the paper. Is it a role model thing? Does it make the rioter seem more sympathetic?

          2 votes
          1. [2]
            eladnarra
            Link Parent
            The person who is framing the event and getting their message out changes. Someone in the process of storming the capital can yell slogans and give speeches directly to a huge audience through a...

            I think I just struggle to see the difference in terms of radicalization (?) between watching a live stream of someone, say, storming the Capitol and reading about it in the paper.

            The person who is framing the event and getting their message out changes. Someone in the process of storming the capital can yell slogans and give speeches directly to a huge audience through a livestream. "Look what we can do when we stand strong against the communists! Go to my website at __. Join the fight!" People like that deliberately use events as recruitment.

            That seems a lot more potentially radicalizing than a newspaper article a week later explaining some people stormed the capital.

            3 votes
            1. AugustusFerdinand
              Link Parent
              Which is precisely the point I've made prior, just from a different angle which solves both sides of the issue.

              The person who is framing the event and getting their message out changes. Someone in the process of storming the capital can yell slogans and give speeches directly to a huge audience through a livestream. "Look what we can do when we stand strong against the communists! Go to my website at __. Join the fight!" People like that deliberately use events as recruitment.

              That seems a lot more potentially radicalizing than a newspaper article a week later explaining some people stormed the capital.

              Which is precisely the point I've made prior, just from a different angle which solves both sides of the issue.

              1 vote
          2. JXM
            Link Parent
            As @eladnarra said, the lack of context is a big difference. Before, people would hear about things either through live news coverage, in which case there are professional newspeople providing...

            As @eladnarra said, the lack of context is a big difference. Before, people would hear about things either through live news coverage, in which case there are professional newspeople providing context and commentary as the event happens.

            That comes with its own drawbacks, such as setting the historical narrative and having it be largely incorrect (see the live coverage as Columbine for an example of that). But I think overall, having that extra commentary can be helpful and is an overall positive.

            Now, with someone streaming live to Facebook from some white power rally, there is no one there to explain the context of the situation and give additional facts. Without that context, it is a lot easier for vulnerable people to be drawn into their cause.

            3 votes
  2. [2]
    Deimos
    Link
    The ACLU published a response (scroll down to it): Defending Speech We Hate

    The ACLU published a response (scroll down to it): Defending Speech We Hate

    14 votes
    1. grahamiam
      Link Parent
      Yeah, the NYT's article is based on the tweets of ACLU employees and not the actual work of the ACLU. It's disappointing. https://twitter.com/mjs_DC/status/1401653503228006400

      Yeah, the NYT's article is based on the tweets of ACLU employees and not the actual work of the ACLU. It's disappointing. https://twitter.com/mjs_DC/status/1401653503228006400

      4 votes
  3. knocklessmonster
    Link
    I honestly think the ACLU can still safely carry out its mission, and should be encouraged to. There's a video by Three Arrows, "The Marketplace of Ideas" that describes a narrow definition of...

    I honestly think the ACLU can still safely carry out its mission, and should be encouraged to. There's a video by Three Arrows, "The Marketplace of Ideas" that describes a narrow definition of political extremism used by the German government, which is any movement that seeks to destabilize German democracy. Considering the fractured state of American politics, and how intense people are becoming in their beliefs, we, or at least the ACLU, should revisit this sort of definition.

    Really, it's two questions to ask:

    1. "Does this speech threaten to harm American democracy?"

    2. "Does this speech exist to harm, or incite harm, against a segment of the population?"

    There may be more to build an iron-clad checklist, but for most things I know of these two should work.

    The ACLU, or at least parts of it, is dealing with the reckoning of being free-speech absolutists in an ever-changing world where some forms of speech have been shown to be actively harmful, and large swaths have been shown to inflict some minimum of harm. Really, they need to figure out how to change their position in a non-partisan way. It may make them look more "progressive," but if not enabling harm to others doesn't align with one's personal ideology, they should change their thinking.

    I don't like them campaigning politically, even if I agree with the campaign in question. it sort of ruins their whole non-partisan activist existence. At least if they take a politically neutral stance and accidentally alienate part of the population, they aren't causing harm to themselves or their cause.

    11 votes
  4. mrbig
    Link
    Maybe social media is the great differentiator here. Misinformation became such a powerful weapon that the indiscriminate defense of free speech can be utterly dangerous.

    Maybe social media is the great differentiator here. Misinformation became such a powerful weapon that the indiscriminate defense of free speech can be utterly dangerous.

    7 votes