Is the Traditional ACLU View of Free Speech Still Viable?

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Today’s episode of SYSTEM UPDATE on this topic — with guest Ira Glasser, the Executive Director of the ACLU from 1978-2001 and subject of the new documentary “Mighty Ira” — can be viewed on The Intercept’s You Tube channel or on the player below.

That a belief in free speech is rapidly eroding in the U.S.is hardly debatable. Every relevant metric demonstrates that to be the case.

Opposition to the primacy of free speech has been commonplace on America’s most elite college campuses for years, but is now predictably seeping into virtually every sector of American political life — beyond academia into the corporate workplace, journalism, the legal community, culture, the arts, and entertainment. Both a cause of this contamination and a result is the growing popular belief that free speech can no longer be protected as a primary right but must be “balanced” — meaning constricted — in the name of other political and social values that are purportedly in conflict with free expression.

Pew found in 2015 that “American Millennials are far more likely than older generations to say the government should be able to prevent people from saying offensive statements about minority groups.” A 2017 University of Chicago survey similarly demonstrated that ”nearly half of the millennials say that colleges should limit freedom of speech ‘in extreme cases.’” A 2019 poll found that large percentages of Americans, in some cases majorities, believe the First Amendment goes too far in protecting free speech and its understanding should be “updated” to reflect contemporary cultural views.

Just this week, the New York Times Magazine published a cover story by the thoughtful liberal journalist Emily Bazelon which explicitly questioned — one might say rejected — the ongoing viability of the First Amendment and free speech values on the ground that the U.S., in Bazelon’s view, is “in the midst of an information crisis caused by the spread of viral disinformation, defined as falsehoods aimed at achieving a political goal.” As a result, Bazelon approvingly argues: “increasingly, scholars of constitutional law, as well as social scientists, are beginning to question the way we have come to think about the First Amendment’s guarantee of free speech.”

But perhaps the most potent and disturbing trend illustrating how rapidly this erosion is taking place is that it has even infected sectors of the organization that has, for decades, been the most stalwart, principled, and unflinching defender of free speech: the American Civil Liberties Union. Internal debates over whether the group should retreat from its long-standing free speech position have been festering for years.

There are vibrant, sometimes hostile disagreements among ACLU lawyers and activists about whether free speech should now be restricted in order to promote other political values increasingly taking center stage in liberal-left politics. One of the most intense crises in the organization’s history came in 2017 when ACLU lawyers defended a white supremacist group that was denied a permit by the city of Charlottesville, Virginia to protest in a prominent and symbolically important public square. The ACLU prevailed, and when one of the extremists in that group plowed his car into a group of counter-protesters, killing 32-year-old Heather Heyer, numerous ACLU activists and even some lawyers angrily insisted that the group should not represent the free speech rights of racist or neo-fascist groups.

The ACLU’s leadership then issued a series of confusing statements and memos that suggested at least somewhat of a retreat from their long-standing organizational posture, though Executive Director Anthony Romero insists that they were simply re-affirming what had always been the group’s policy regarding armed protesters. Meanwhile, as the ACLU (like the New York Times) has been deluged with a huge surge of Trump-era donations given by #Resistance liberals, it has also been criticized for abandoning its core identity of being a non-partisan civil liberties group that defends free speech and due process rights of everyone, and instead transforming into a standard liberal activist group (though the ACLU continues to defend groups such as the NRA against New York State’s efforts to disband it, continues to urge a pardon for Edward Snowden, and still often represents the rights of Christian students and other views associated with the right).

I have written many times about my views on all of these debates and will not repeat them here. My most comprehensive explanation for why I believe that no erosions of free speech can be tolerated — and why efforts to erode or “balance” rights of free expression are far more dangerous than whatever views are targeted for suppression — was this 2013 essay in the Guardian, where I denounced efforts by a French minister to force Twitter to censor what she regards as “hate speech.” I have reported often on why hate speech laws are so misguided (including because they often end up suppressing the views of the marginalized), and specifically defended the ACLU from its critics after Charlottesville. And last week I argued that censorship by Facebook and Twitter of a New York Post story was dangerous in the extreme.

But today’s SYSTEM UPDATE episode is devoted not to my views on these questions but those of Ira Glasser, who served as the Executive Director of the ACLU from 1978-2001, when he retired shortly before the 9/11 attack. Glasser is the star of an exceptional new documentary, which I cannot recommend highly enough, entitled “Mighty Ira,” which traces not only Glasser’s life and work at the ACLU but also the history of the last half of the 20th Century that shaped both his political outlook and the ACLU’s growth from a small and financially precarious group into a legal and political powerhouse under his leadership.

   

Glasser is an old-school civil libertarian in the best and most classic sense of that term. One of his first challenges upon assuming his leadership position was dealing with the fallout of the crisis the ACLU faced in that era: public and internal fury that its largely Jewish lawyers had represented a neo-Nazi group’s right in 1977 to march through the town of Skokie, Illinois, which had not only a large Jewish population but one with thousands of survivors of the Nazi death camps. Glasser steadfastly defended the nobility of that position even as donors and even some staff members left in droves, threatening the ongoing viability of the group, and he continues with great eloquence, and with great relevance to our current debates, to defend that decision today (on its site, the ACLU also continues to defend that Skokie case as one of its proudest and most important moments).

Glasser has not been shy about very vocally and vehemently criticizing what he regards as a retreat by the modern-day ACLU from the organization’s long-standing mission. He is particularly scathing about how the politicized money that has poured in has caused the group to pursue standard-issue liberal policy goals at the expense of the Constitutional rights it once uniquely and fearlessly defended. But he also recognizes that many of the ACLU lawyers, and its leadership, still have a commitment to those core values, and often are forced to battle their own staff in order to fulfill the group’s mission: a perverse conflict that is plaguing numerous political, journalistic and academic institutions.

The history covered by “Mighty Ira” is fascinating in its own right. But even more interesting is the way that Glasser’s life and work — including very improbable friendships he formed with Ben Stern, one of the Skokie community leaders opposing the ACLU, as well as William F. Buckley, with whom he often sparred on “Firing Line” and in countless other venues — shed so much light on the debates we are currently conducting today, particularly over free speech.

Skokie, Ill. resident and Holocaust survivor Ben Stern shows his concentration camp tattoo to Ira Glasser, in the film “Mighty Ira.”

Photo: Mighty IRA Documentary

What fascinated me most was Glasser’s recounting of the Skokie controversy was how African American civil rights leaders of the 1970s and 1980s were among his staunchest allies and supporters when it came to defending the free speech rights of white supremacists groups — because they knew they would be among the first to be targeted by successfully implemented precedents of state censorship. Equally fascinating is Glasser’s invocation of his experience, as a Jewish leftist, and how it led him to believe that defending the free speech rights of those whose views he found most repugnant was not just ethically right but a matter of self-interest.

Glasser is an important figure in the political and legal battles of the 20th Century. He remains an incredibly eloquent advocate and compelling thinker on all of these issues. Too many people are unaware of this history. As reflected by both “Mighty Ira”and my interview of him — which can be seen on The Intercept’s You Tube channel or the player below — this history is indispensable for understanding and navigating many of the most difficult and consequential political debates of today.



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Caleb Alexander

Caleb Alexander

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