Leaked Internal Memo Reveals the ACLU Is Wavering on Free Speech

[mahatmakanejeeves]

This is big enough to be in LBN. If it gets shut down there, as I suspect, at least it will still be here.

ThisIsNotNormalHat Retweeted:

Leaked memo: the ACLU will consider "effect on marginalized communities" when deciding to take free speech cases

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Leaked Internal Memo Reveals the ACLU Is Wavering on Free Speech

"Our defense of speech may have a greater or lesser harmful impact on the equality and justice work to which we are also committed."

Robby Soave|Jun. 21, 2018 8:25 am

The American Civil Liberties Union will weigh its interest in protecting the First Amendment against its other commitments to social justice, racial equality, and women's rights, given the possibility that offensive speech might undermine ACLU goals.

"Our defense of speech may have a greater or lesser harmful impact on the equality and justice work to which we are also committed," wrote ACLU staffers in a confidential memo obtained by former board member Wendy Kaminer.

It's hard to see this as anything other than a cowardly retreat from a full-throated defense of the First Amendment. Moving forward, when deciding whether to take a free speech case, the organization will consider "factors such as the (present and historical) context of the proposed speech; the potential effect on marginalized communities; the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values; and the structural and power inequalities in the community in which the speech will occur."

The memo also makes clear that the ACLU has zero interest in defending First Amendment rights in conjunction with Second Amendment rights. If controversial speakers intend to carry weapons, the ACLU "will generally not represent them."

[cilla4progress]

1. Finally.

Context is everything.

How we got here, in part. I remember ACLU defending Nazis marching near Chicago in 1970s. I get it - in theory. But no moral equivalency. Can’t yell fire in a crowded theater...

[mahatmakanejeeves]

2. Justice Holmes' Full-Throated Approval For Suppression of Wartime Dissent

Three Generations of a Hackneyed Apologia for Censorship Are Enough

SEPTEMBER 19, 2012 BY KEN WHITE

In her Los Angeles Times opinion piece justifying prosecution of the author of the "Innocence of Muslims" video on YouTube, Sarah Chayes opens exactly the way I've come to expect:

In one of the most famous 1st Amendment cases in U.S. history, Schenck vs. United States, Supreme Court Justice Oliver Wendell Holmes Jr. established that the right to free speech in the United States is not unlimited. "The most stringent protection," he wrote on behalf of a unanimous court, "would not protect a man in falsely shouting fire in a theater and causing a panic."

Holmes' famous quote is the go-to argument by appeal to authority for anyone who wants to suggest that some particular utterance is not protected by the First Amendment. Its relentless overuse is annoying and unpersuasive to most people concerned with the actual history and progress of free speech jurisprudence. People tend to cite the "fire in a crowded theater" quote for two reasons, both bolstered by Holmes' fame. First, they trot out the Holmes quote for the proposition that not all speech is protected by the First Amendment. But this is not in dispute. Saying it is not an apt or persuasive argument for the proposition that some particular speech is unprotected, any more than saying "well, some speech is protected by the First Amendment" is a persuasive argument to the contrary. Second, people tend to cite Holmes to imply that there is some undisclosed legal authority showing that the speech they are criticizing is not protected by the First Amendment. This is dishonest at worst and unconvincing at best. If you have a pertinent case showing that particular speech falls outside the First Amendment, you don't have to rely on a 90-year-old rhetorical flourish to support your argument.

Holmes' quote is the most famous and pervasive lazy cheat in American dialogue about free speech. This post is not about fisking Sarah Chayes; her column deserves it, but I will leave it to another time. This post is about putting the Holmes quote in context, and explaining why it adds nothing to a First Amendment debate.

Holmes' Full-Throated Approval For Suppression of Wartime Dissent
....

[X_Digger]

4. You certainly CAN yell fire in a crowded theater.

https://www.theatlantic.com/national/archive/2012/11/its-time-to-stop-using-the-fire-in-a-crowded-theater-quote/264449/

[mahatmakanejeeves]

3. Responding to replies in the now-closed thread in LBN:

Leaked Internal Memo Reveals the ACLU Is Wavering on Free Speech

yallerdawg (15,364 posts)

18. Two clicks to "Godwin's Law!"

Reminder: Godwin has officially suspended Godwin's Law. 10 months ago, in fact.

Jim Lane (10,712 posts)

19. The comment about the Second Amendment is clearly wrong.

From the OP:

The memo also makes clear that the ACLU has zero interest in defending First Amendment rights in conjunction with Second Amendment rights. If controversial speakers intend to carry weapons, the ACLU "will generally not represent them."

The First Amendment protects "the right of the people peaceably to assemble...." (see text helpfully provided in #3). Some of the Second Amendment absolutists say that people must have guns so that they can resist (and therefore deter) government tyranny. I personally don't buy the argument about an aroused and armed citizenry shooting back at oppressive police officers, but even if it were to happen, it wouldn't be peaceable assembly. It's no contravention of the Second Amendment for the ACLU to decide that people who carry weapons are going beyond the scope of the First Amendment.

Members of the Seattle chapter stage protest at the Washington State capitol in Olympia, February 28, 1969 (photo: Washington State Archives)

[X_Digger]

5. Principles have to apply under the worst imaginable circumstances, or they're just preferences.

Popular speech needs no protection- it's popular.

Ah well, I'll be rethinking my donations.