Defending Speech We Hate

This blog was updated on Apr. 18, 2024.

Has the ACLU lost its way? This appears to be a perennial question — perhaps because “ACLU Has Not Lost Its Way” is not exactly a catchy headline.

Almost a half century ago, in 1978, J. Anthony Lukas wrote a feature for The New York Times Magazine detailing the controversy around the ACLU’s decision to defend the free speech rights of a group of neo-Nazis who sought to march in Skokie, Illinois. The article was entitled, “The ACLU Against Itself.” Even then, as the ACLU was defending neo-Nazis, critics charged it had lost its way.

Thirty years ago, in 1994, the same questions led then-ACLU president Nadine Strossen to write a 17-page article rebutting charges that the ACLU had abandoned “its traditional commitment to free speech and other classic civil liberties and is becoming a ‘trendy’ liberal organization primarily concerned with equality and civil rights.” Today, the ACLU continues to confront claims that it has abandoned its free speech values in favor of advocating for progressive causes.

Now, as then, the facts simply don’t support the charge. The ACLU remains committed to defending the principle of free speech, just as it was in the 1990s, the 1970s, and at its founding in the 1920s. Just last year, our free speech work included opposing book bans; representing educators fighting classroom censorship aimed at suppressing important perspectives on race; defending protesters responding to police shootings and overseas wars; protecting the ability of Indigenous students to wear tribal regalia at their graduation ceremonies; protecting the rights of students to speak freely online and off-campus; defending advocacy groups against viewpoint-based government censorship; opposing government efforts to control speech on the internet; and fighting against retaliatory arrests for protected speech.

We have defended many liberal and progressive groups and individuals from censorship, including: Deray Mckesson, a Black Lives Matter activist sued for injuries caused by someone else in a protest that McKesson allegedly led; protesters tear gassed outside the White House to clear the way for a then-President Trump photo opportunity during protests provoked by the killing of George Floyd; and individuals who opposed signing a pledge not to boycott Israel as a condition of obtaining government contracts. We also represented individuals who engaged in speech that was not political at all, including a Supreme Court case involving a high school freshman suspended from the high school cheerleading team for saying “fuck cheer” on her personal Snapchat on the weekend. In short, we fight censorship wherever it arises.

Allegations that the ACLU no longer defends the speech rights of those with whom we disagree are unfounded. Since our inception in 1920, we have defended the speech rights of neo-Nazis, white supremacists, religious fundamentalists, anti-LGBTQ individuals, and more. In the past decade, we have supported the constitutional rights of the NRA, the Koch-funded Americans for Prosperity Foundation, antisemitic protesters, conservative and anti-gay student groups, Trump supporters, and Trump himself, to name but a few. We have filed multiple Supreme Court briefs with the Cato Institute, the American Conservative Union, and the Institute for Justice.

Being a multi-issue organization has its challenges, to be sure. In 2017, I led a committee representing a wide range of divergent views within the ACLU in developing guidelines for considering cases that present conflicts between the many values the ACLU defends. The purpose of the guidelines was to reaffirm our longstanding commitment to defending speech with which we disagree, and to establish procedures to ensure that we take on cases with our eyes wide open. In particular, the guidelines emphasize that: “As human rights, these rights extend to all, even to the most repugnant speakers — including white supremacists — and pursuant to ACLU policy, we will continue our longstanding practice of representing such groups in appropriate circumstances to prevent unlawful government censorship of speech.”

At the same time, we acknowledged the costs that can come with that representation, including to other interests and work of the organization, and outlined ways to mitigate those costs when we embark on such representation. That can mean making clear in public statements that we abhor the speakers’ views even as we defend their right to express them, supporting counter-protesters, doubling down on other ACLU work that the speakers oppose, explaining our principles to our allies, and investing attorneys’ fees we obtain in connection with the work to advance the views that the speaker opposes. What the guidelines do not say is that we should avoid taking such cases.

But the real test of the guidelines is in our conduct. Judge us by what we do. Since the guidelines were adopted in 2017, we have repeatedly defended the speech rights of those with whom we disagree. For the record, here is but a small sample of that work for each year since the guidelines’ adoption in 2017:

• We challenged the Washington Metropolitan Area Transit Authority’s (WMATA) refusal to post an advertisement for alt-right provocateur Milo Yiannopoulos’ book;
• We defended Donald Trump’s speech rights when he was charged with inciting violence at a Trump campaign rally;
• We filed an amicus brief in the Supreme Court in support of a Tea Party supporter challenging a ban on wearing political insignia or apparel at polling places;
• With the NRA, we supported a federal law that reduced obstacles to people with mental illness to buy guns, which we viewed as harming people with disabilities;
• We advocated in defense of the First Amendment rights of a Columbus City Schools employee who posted an anti-gay slur on Facebook, and who faced being fired for doing so.

• We filed an amicus brief supporting the NRA’s First Amendment challenge to Gov. Andrew Cuomo’s directive to New York financial services organizations to reconsider the “reputational risks” of doing business with the NRA and other gun rights groups;
• We filed an amicus brief supporting Republican voters’ constitutional challenge in the Supreme Court to a Maryland partisan gerrymander that created a Democratic district for which one of our biggest donors, David Trone, was running and ultimately won; and
• We sent a public demand letter to the Vermont governor, asking that he stop banning gun-rights activists who posted negative comments, almost entirely political, on his official page.

• We challenged Arkansas State University’s “free speech” zones as applied to a homophobic and racist student organization;
• In Koala v. Khosla, we won an appeal in the U.S. Court of Appeals for the Ninth Circuit on behalf of a conservative student magazine denied funding by the University of California at San Diego after they published a story mocking “trigger warnings” and “safe spaces”; and
• We filed comments on Education Secretary Betsy DeVos’ Title IX rule that supported fair process requirements for live hearings, cross-examination, access to all the evidence, and delays in proceedings if the student accused of wrongdoing also faced a student criminal investigation, even as we criticized the rule for reducing the obligations of schools to respond to reports of sexual harassment.

• We filed a brief in Michigan supporting antisemitic protesters picketing in front of a synagogue on the Sabbath;
• We filed an amicus brief in the Supreme Court with the conservative Americans for Prosperity Foundation and the Institute for Justice in support of a case challenging a free speech zone by an evangelical Christian, represented by Alliance Defending Freedom;
• We represented a number of voters, including a Republican, to defend drive-thru voting, which was set up in Houston in November to enable safe voting during the pandemic;
• We filed an amicus brief in the Supreme Court supporting a Catholic school’s religious right to discriminate in the hiring and firing of a teacher with significant religious responsibilities;
• We sent a letter on behalf of a Trump supporter in Georgia who was being criminally prosecuted for flying a flag on his own property that said, “Trump 2020: Fuck Your Feelings.” Charges were dropped after the prosecutor received our letter;
• We protested New York Attorney General Letitia James’ effort to shut down the NRA based on the wrongdoing of some of its leaders as a violation of the right of association; and
• We filed an amicus brief in Esshaki v. Whitmer in support of a conservative Republican candidate for Congress who was challenging a signature collection requirement in the midst of the pandemic. The ballot access restriction favored the incumbent, a Democrat, in a toss-up congressional district.

• We filed a Supreme Court brief supporting the conservative nonprofits Americans for Prosperity and the Thomas More Society in a challenge to California’s donor disclosure rule as violating the First Amendment;
• We sent a letter after the Capitol insurrection to the U.S. Department of Interior opposing D.C. Mayor Muriel Bowser’s suggestion to cancel all permits through President Biden’s inauguration;
• We questioned Twitter and Facebook’s bans of President Trump’s account;
• We filed an amicus brief in the U.S. Court of Appeals for the 10th Circuit arguing offensive antisemitic statement made on his Snapchat outside of school;
• We defended New Jersey and Kansas residents’ First Amendment right to hang up “Fuck Biden” signs outside their homes. The First Amendment protects our right to express our opinions on political issues without fear of punishment by the government;
• We filed an amicus brief in the U.S. Supreme Court in support of a conservative Christian group’s claim that the city of Boston violated its First Amendment rights by refusing to fly a Christian flag, featuring the Latin cross, from a flagpole in front of City Hall; and
• We issued a statement expressing concerns about the FBI’s raid of Project Veritas founder James O’Keefe’s home, urging the court to appoint a special master to supervise law enforcement review of seized materials.

• We filed an amicus brief on behalf of Craigslist in litigation brought against it by victims of sex trafficking;
• In an op-ed in The New York Review of Books, we defended the free speech rights of Ilya Shapiro, who had published an offensive tweet about President Biden’s promise to appoint a Black woman to the Supreme Court;
• We supported Elon Musk’s suggestion to re-platform President Trump on Twitter; and
• We sent letters to two Pennsylvania school districts on behalf of students who wanted to wear “Let’s Go Brandon” shirts to school, defending their right to freedom of expression.

• We filed a brief with the New Hampshire Supreme Court arguing that a restraining order imposed on the defendant in a stalking case violated the First Amendment;
• We filed an amicus brief in United States v. Trump, arguing that a gag order in former President Trump’s ongoing election fraud case violated the First Amendment unless narrowed to prohibit imminent threats against individuals or conduct that would interfere with the impartial administration of justice;
• We filed an amicus brief in the Supreme Court in Counterman v. Colorado, arguing that the First Amendment requires subjective intent to threaten in order to convict a stalker of making a “true threat”;
• We challenged the WMATA’s advertising restrictions on behalf of WallBuilders, a Texas-based fundamentalist Christian organization that argues America is a Christian nation and there should not be separation of church or state; and
• We joined Young Americans for Freedom, the Cato Institute, and other unlikely partners in filing an amicus brief on behalf of the Foundation for Individual Rights and Expression in its challenge to New York’s new law regulating “hateful conduct” in social media.

• We represented the NRA in the Supreme Court, arguing that a New York state regulator’s attempts to use her power over banks and insurance companies to coerce them into denying basic financial services to the NRA and “other gun promotion” groups violated the First Amendment.