ACLU’s Free-Speech Defense Depends on Who’s Speaking
Many people believe that the American Civil Liberties Union no longer cares much about free-speech cases. Now, the organization is thinking of curbing the speech of its own officers. It has drawn up standards, not yet promulgated, that would discourage public dissent on ACLU policies and forbid open criticism of anyone on the board or the staff. Nat Hentoff, a former board member who writes frequently about the ACLU, called it a “gag order.”
The organization said it feared that internal criticism might harm its fund-raising and public support. Yes, dissent can affect a group’s reputation, but not as much as the squelching of dissent by alleged advocates of free speech.
One trigger for the no-criticism standards was the loud, open dissent by board member Wendy Kaminer on the ACLU’s backing of a bill calling for federal regulation of ads placed by anti-abortion counseling centers. The bill, introduced in Congress by Rep. Carolyn Maloney, D.-N.Y., would instruct the Federal Trade Commission to ban ads, under headings like “abortion” and “clinics,” by centers that oppose abortion and try to convince women to keep their child. Kaminer, a Boston attorney who is “very strongly pro-choice,” said, “I don’t believe the pro-choice movement has the copyright on the term ‘abortion services.’ That seems to me a very clear example of government being the language police.”
The ACLU applauded Maloney’s bill and urged lawmakers to pass it, but after some resistance inside the group, the message disappeared from the ACLU Web site. A spokeswoman said the issue had not been fully vetted.
Kaminer and another board member, Michael Meyers, said the ACLU was ready to take action against them last year for criticizing ACLU stances, but the leadership decided against disciplinary action after the news media reported the story. Meyers, founder of the New York Civil Rights Coalition, has since been removed from the ACLU board. Kaminer and Meyers complained that Anthony Romero, executive director of the ACLU, had authorized extensive research on the organization’s donors and members, without explaining what data would be collected and who would do the collecting. The ACLU has opposed similar data mining when government or corporations do the collecting.
Meyers leveled many criticisms at Romero, among them: that he is intolerant of dissent, withholds financial information from the board, and cuts funding of ACLU affiliates if they are critical of him. He also says Romero instructed Nadine Strossen, president of the ACLU, to create a policy restricting board members’ rights to speak directly to staff. Meyers said that policy was twice changed. Now questions by board members have to be voted on and agreed to by a majority of the executive committee before Romero will agree to answer.
Meyers thinks the ACLU’s backing of the Maloney bill is an indication that the organization has strayed from its “traditional free-speech roots” and turned to “identity politics.” It’s hard to imagine the ACLU of 10 or 20 years ago asking government to monitor advertising.
But the ACLU now has issue-oriented lobbies inside it. They are called “projects” and include the “Reproductive Freedom Project,” the “Women’s Rights Project” and the “Lesbian and Gay Rights Project.” The influence of the projects, and the money they bring in, often tend to sway the ACLU away from its once primary concern about free speech.
For instance, the ACLU came out early against the 1970 Racketeer Influenced and Corrupt Organizations Act (RICO), a conspiracy statute aimed at the Mafia. RICO always had the potential to be used to curb political dissent, and when defenders of abortion started to use it against anti-abortion protesters, the ACLU waffled and looked the other way. Harvey Silverglate, of the Massachusetts ACLU, said sympathy of abortion rights caused the national ACLU to drop its guard on a serious violation of political freedom.
In 2003, after 17 years of litigation, the Supreme Court ruled that abortion protesters couldn’t be punished as racketeers under RICO. No thanks to the ACLU. The organization still defends free speech, but not always when that speech is directed against a group or an interest it cares about.