May 24, 2006


A.C.L.U. May Block Criticism by Its Board (STEPHANIE STROM, 5/24/06, NY Times)

The American Civil Liberties Union is weighing new standards that would discourage its board members from publicly criticizing the organization's policies and internal administration.

"Where an individual director disagrees with a board position on matters of civil liberties policy, the director should refrain from publicly highlighting the fact of such disagreement," the committee that compiled the standards wrote in its proposals.

"Directors should remember that there is always a material prospect that public airing of the disagreement will affect the A.C.L.U. adversely in terms of public support and fund-raising," the proposals state.

Given the organization's longtime commitment to defending free speech, some former board members were shocked by the proposals.

"The problem for anyone writing satire today is competing with the front page."
-Christopher Buckley

Posted by Orrin Judd at May 24, 2006 7:53 PM

Given the organization's longtime commitment to defending free speech, some former board members were shocked by the proposals.

Given the organization's post-9/11 bent to put politically motivated actions above everything else, those former board members shouldn't be surprised a proposal to muffle any internal dissent would come down the pike sooner or later.

Posted by: John at May 24, 2006 9:36 PM

Interesting to see what Ruth Bader Ginsburg might say about this.

Posted by: jim hamlen at May 24, 2006 10:48 PM

You're right John, but there's something fishy about that deal concerning present members. One would think the current board members would be the movers and shakers in maintaining public support, and bringing in the cash. Must be a rift developed somewhere. Maybe one coverted to Christianity or something equally harmful.

Posted by: Tom Wall at May 24, 2006 10:54 PM

Well, the ACLU is made up of numerous chapters, some of which are a less politically oriented in one direction than others. The one everyone likes to point out when they say the group isn't a doctrinare liberal organization is their support of the Nazi march in the Jewish neighborhood of Skokie, Ill. in 1977, but two years ago the Florida chapter came out on the side of Rush Limbaugh in his battle against the Palm Beach County DA over access to medical records.

That action also went against the normal ACLU sterotype, but I wouldn't be surprised if there were other executives of the group around the country who were none-too-happy about who the South Florida chapter sided with in that case. If so, they're probably the same ones supporting this anti-free speech edict.

Posted by: John at May 25, 2006 12:43 AM

The irony is that of course the ACLU is entitled to and should put boundaries around dissent. Any organization or community or nation that doesn't won't last. These former board members should be shocked at the inane things the ACLU promotes, not at this.

It reminds me a bit of our M.P.'s who put cutting-edged labour entitlements into law for the civil service but exempted the staff at the House of Commons.

Posted by: Peter B at May 25, 2006 9:00 AM

The ACLU, self-proclaimed champion of free speech, is being hypocritical. The ACLU doesn’t believe in free speech when it’s aimed at the ACLU itself, even though it believes that other private organizations should be compelled by law to tolerate dissent in their ranks or face a lawsuit.

The Supreme Court has ruled that the First Amendment and the Equal Protection Clause of the Constitution only restrict the conduct of state actors. Private associations are thus free to condition membership on not publicly criticizing the association’s positions or leaders, and to require that members share a common religion or other characteristic (unless the characteristic is prohibited by an antidiscrimination statute that does not intrude too deeply on the association’s First Amendment freedom of association). This is called the “state action” doctrine. It greatly limits federal courts’ control over private institutions, promoting freedom of association and a free market economy.

The ACLU, however, opposes the state action doctrine. It believes that private institutions, such as shopping centers and private colleges, should be subject to restrictions under the First Amendment, and that even the smallest businesses or associations should be subject to the Equal Protection Clause. For example, it argued in a Connecticut case that the Klan should be able to demonstrate in a private shopping center, overriding the property and free association rights of its owners, and recently persuaded the New Jersey courts to use the New Jersey State Constitution to force private housing developments and shopping centers to host political advocacy groups. Similarly, the ACLU argued that the boy scouts should not be able to dictate membership criteria, a position the U.S. Supreme Court rejected in 2000 on First Amendment freedom of association grounds. And it unsuccessfully urged the Oregon Supreme Court to hold that the owner of a small business violates the Constitution’s Establishment Clause, not just state law, by engaging in workplace religious proselytizing, in the 1995 Meltebeke case.

However, there is one special private organization that the ACLU believes should be exempt from judicial oversight so that it can restrict its members’ speech: the ACLU itself.

The ACLU’s leader, Anthony Romero, has apparently created files on dissident members of the ACLU’s national board, who have criticized the ACLU for failing to oppose restrictions on politically incorrect speech, like anti-abortion ads.

And according to a May 24, 2006 New York Times story, he is pushing to forbid board members from criticizing the ACLU’s board or its staff, arguing that such criticism makes “fund-raising” harder for the ACLU. This is a very ironic position for an organization that claims to be a champion of free speech to take.

It is especially ironic given that the ACLU has repudiated far more limited speech restrictions it endorsed in the past. The ACLU continually depicts as a shameful cave-in to McCarthyism the ACLU’s own Post-World War II policy of excluding supporters of totalitarian movements from its board. That prohibition had the effect of excluding several communist ACLU board members who had backed Stalin’s dictatorship and previously supported the Hitler-Stalin nonaggression pact. Apparently, the ACLU believes in free speech for totalitarians, but not for First Amendment advocates.

Romero justifies the proposed speech restriction by pointing to a supposed need to balance “conflicting” rights. "Take hate speech," he said. "While believing in free speech, we do not believe in or condone speech that attacks minorities."

This is a frequent ACLU tactic, to argue that free speech is overridden by a competing “right” when the speech becomes inconvenient. The ACLU’s “balancing” is applied in an inconsistent and unprincipled manner, based on how much it sympathizes with the target of the speech.

For example, the ACLU successfully argued that Nazis advocating genocide should be allowed to march through the town of Skokie, home to many Holocaust survivors, saying that the Nazis’ free speech rights outweighed the interests of the Holocaust survivors. And it later sued a private restaurant for refusing to serve neo-Nazis because they insisted on wearing swastikas while dining, trampling on the restaurant owners’ freedom of conscience and their private property rights.

But in another case, Aguilar v. Avis Rent-A-Car System, it filed an amicus brief supporting a state court’s gag order banning an employee from uttering even a single racial slur, based on racial harassment that was found to have occurred years earlier, even if no other employee ever heard the slur. The ACLU argued that such slurs could be banned because they were just “verbal acts” of “discrimination” against Hispanics, rather than “pure speech.” The state court accepted the “discrimination” rationale for restricting speech, even though federal courts have consistently held that a single slur does not constitute discriminatory harassment, either by itself or in conjunction with harassment that occurred long ago, and is irrelevant if other employees are not aware of it (and even though the employee accused of harassment was himself married to a Hispanic and the soccer coach of the very employees who accused him of harassment).

“Balancing rights” enables the ACLU to foresake principle to reach whatever pre-ordained politically correct result it wants.

Links to the cases discussed above can be found at the Open Market Blog at

Posted by: Hans Bader at May 25, 2006 5:02 PM