Even the ACLU struggles to care about unpopular free speech.
Soupcoff, A11
The ACLU’s decision to stick up for the National Rifle Association (NRA)’s First Amendment rights can best be described as a surprising but logically coherent move.
It’s sad that “surprising” is an accurate adjective in this context. Civil liberties advocates — and free speech advocates in particular — ought to stick up for the rights of everyone, including those with whom they disagree. To do so is consistent, principled, sensible. It’s the reason the ACLU famously defended a Neo-Nazi group that wanted to march through Skokie, Illinois — a Chicago suburb home to many Holocaust survivors — in 1978.
The idea was that no one should countenance the government silencing political opponents because at some point, anyone could become a political opponent. As such, it was only logical that the ACLU offered up as vigorous a defence of the Neo-Nazis’ free speech rights as it had previously offered for the rights of Communists, and civil rights advocates in the South. The ACLU lawyer in the Skokie case was a Jewish man named David Goldberger. He obviously understood the value of keeping speech free, even speech we hate.
My sense, though, is that it is surprising that the ACLU has filed an amicus brief (similar to an intervention in Canadian law) in support of the NRA, as there is far less appreciation today for the notion that basic freedoms ought to be morally unconditional, not predicated on a value judgment about a person or group’s worthiness.
Many progressives are furious that the ACLU has sided with the NRA in its dispute with New York State regulators, who have tried to intimidate banks and insurance companies into dropping their business with the gun rights group.
But it is of greater significance that many ACLU lawyers are equally unhappy.
In a National Review piece this week, Theodore Kupfer writes that “in response to (ACLU) legal director (David) Cole’s fairly rudimentary point that if a state could target the NRA with this activity, it could also target a group such as Black Lives Matter, one (ACLU) litigator emailed that it is 'deeply problematic ... to use BLM as a shield for actions that support white supremacy,' and an ACLU attorney told (Slate writer Michael Joseph) Stern that he is 'wary of any suggestion that somehow a principled defence of the powerful will benefit the disempowered.'” Social status, wealth, race, power, privilege, gender, class, political affiliation — for many in the ACLU, all these factors must now be weighed before deciding if someone’s expression deserves constitutional protection. Indeed, an ACLU memo leaked in June suggested that such considerations may be official policy.
If that’s depressing — equality before the law being abandoned by so many members of the United States’ premier civil liberties organization — the Canadian scene is downright distressing.
The equal application of freedom of speech is at least still a relevant concept for United States non-profits; it has been all but ditched by many civil liberties groups here.
Take the Canadian Civil Liberties Association (CCLA).
Once steered by the late Alan Borovoy, a true civil libertarian who defended the speech rights of Holocaust denier Ernst Zundel, the organization is now busy suing Ontario over its sex-ed curriculum because the CCLA considers the province’s dropping of the 2015 curriculum “censorship” in the classroom.
Then there is Canadian Journalists for Free Expression, which seems to be too distracted by the politics of the conflict in the Middle East to have time for meaningful work on censorship. The group has managed to alienate all sides by first issuing an alert heavily criticizing Israel, then backtracking and apparently firing the staff member who wrote the alert. (It also seems to be in desperate need of a proofreader and/or translator given that its website currently features a post about an “irruption” into Vice Quebec’s newsroom, which “caused ruckus.”)
The ACLU’s brief in the NRA case says, “Although public officials are free to express their opinions and may condemn viewpoints or groups they view as inimical to public welfare, they cannot abuse their regulatory authority to retaliate against disfavoured advocacy organizations and to impose burdens on those organizations’ ability to conduct lawful business.”
It would be wise for all advocacy organizations to get behind this statement — which applies equally to, for example, pro-choice Planned Parenthood and pro-life Family Research Council — because you never do know who tomorrow’s public officials may be. Or what they will consider inimical to public welfare.
When it comes to speech rights, the principle of neutrality is key. Let’s hope the ACLU is strong and smart enough to remain one of the few North American advocacy groups that gets this.
WHEN IT COMES TO SPEECH RIGHTS THE PRINCIPLE OF NEUTRALITY IS KEY.