Harvey Silverglate on the ACLU and Free Speech [Bumped to Include Response from ACLU’s Steve Shapiro, and Reply from ACLU Critic Wendy Kaminer]

My post last week on the ACLU led to this e-mail from Harvey Silverglate, which he kindly let me post on the blog. Silverglate is a prominent criminal defense lawyer, the liberal half of the cofounders of the Foundation for Individual Rights in Education, and until the end of last year a longtime board member of the ACLU of Massachusetts. Here’s his view on the subject:

As a loyal but often-upset member of the modern ACLU, I want to clarify for you the way the ACLU works, in light of your blog today indicating that “ACLU chapters” have been front-and-center in seeking to protect the speech of some people clearly loathed by just about 100% of ACLU members.

The ACLU is a very de-centralized organization. The national organization has a monopoly over just a few arenas of ACLU endeavor: Only the national organization can decide to take a case to the Supreme Court, even if one of the chapters litigated the case through the state high court or the federal intermediate appellate court. Only the national organization lobbies the Congress (although state chapters do speak to their local representatives and senators). But with respect to whether a state affiliate will or will not take a case that arises within its state, the state affiliate has discretion. I am, for example, a member of the ACLU of Massachusetts, and I served for decades on its board. (I had to leave the ACLUM Board last year because of a rule-change that requires a Board member to step down for one year after serving a certain number of consecutive terms.) Our state chapter never has to confer with national ACLU in deciding what cases to take, unless the case is at the Supreme Court level. ACLU state chapters are notoriously independent, even prickly over efforts by national to assert control outside of national’s assigned arenas.

National ACLU does adopt, by vote of its Board, policies to guide the national organization and, in theory, the state affiliates. But state affiliates have a tremendous amount of discretion nonetheless.

What this means is that some ACLU state affiliates are very protective of speech, even if national too often falls down in that arena (which, sadly, it does). And so it is not unusual to find a state chapter taking on a case involving very controversial and politically-incorrect speech that national would not touch. I have found this very often, for example, in the area of campus free speech. The Massachusetts affiliate (ACLUM) is very protective of the free speech rights of college students, even those with which the vast majority of ACLUM members disagree. And so ACLUM could be counted on to oppose campus speech codes. I doubt very, very much that today’s national ACLU would go to the Supreme Court to seek to invalidate a campus speech code parading as an “anti-harassment code,” because national would value the “comfort” level of members of “historically disadvantaged groups,” and their “right” to be free from insult, more than it would value the right of students to insult, or seemingly insult, such groups.

When the Mohammad cartoons imbroglio erupted, the Massachusetts affiliate posted a very strong First Amendment statement on its website, affirming the right of newspapers to insult Islam and their right to be protected, by the state, in doing so. National’s website was silent, although the executive director claimed to have given a single, unpublicized speech to some group on the subject.

So, the reason that you are sometimes surprised by “the ACLU’s” vocal support of free speech that is contrary to the national organization’s current political leanings, some state affiliate has taken a magnificently principled (and sometimes quite brave) stand in a speech case. Or let me put it this way: If you need an organization to protect the rights of some ugly right-wing, hate-spewing bigot, rely on the ACLU of Massachusetts (or some other chapter that still adheres to the traditional defense of all speech) rather than the national organization or one of the state chapters that has followed national in the direction of not jumping to the defense of certain categories of speech (I’m thinking, for example, of the ACLU of Southern California, which some time ago became very selective about the speech it will protect). Someone might find a case here and there where the national organization performed well with regard to politically disfavored (by ACLU members), but they are few and far between (and becoming more so).

I mention this to you for future guidance. I think that if you look at cases where “the ACLU” is coming to the aid of some hateful group, more often than not it will be a brave and principled state affiliate doing the heavy lifting, not the national organization. (But, I repeat, there is the occasional exception where it is just too obvious that national cannot opt to stay on the sidelines.)

ACLU remains a very important organization. Its work in the “war on terror” alone makes it an indispensable group. But, more and more, the free speech battle is being waged by local affiliates as well as other free speech organizations.

UPDATE: Steven R. Shapiro, the National Legal Director of the ACLU, responds:

I have known Harvey Silverglate for many years and we have worked together on various civil liberties battles. Harvey is correct in pointing out the work that ACLU affiliates around the country have done — and are continuing to do — defending the free speech rights of controversial speakers across the political spectrum. He is wrong to suggest that the national ACLU is less vigorous in its defense of the First Amendment. Earlier this year, for example, the ACLU filed an amicus brief successfully urging the Supreme Court to overturn a jury verdict against the Westboro Baptist Church for promoting their homophobic message during a peaceful protest at a military funeral. It may not have been a “politically correct” position but it was a principled one. To be sure, we do believe that there is a point at which speech can cross the line to unprotected harassment and discrimination. In most instances, I suspect Harvey and the ACLU would agree on where that line is. The fact that we may occasionally disagree on what is clearly a complicated issue does not mean that the ACLU has retreated in any way from its commitment to First Amendment principles. Harvey’s claim to the contrary is both unwarranted and unfair.

FURTHER UPDATE: Wendy Kaminer, a former ACLU of Massachusetts board member (until 2009) and national ACLU board member (until 2006) but now a noted critic of the ACLU, responds further:

Steve Shapiro disputes Harvey’s nuanced analysis of the ACLU’s declining commitment to free speech by citing its support for the speech rights of Fred Phelps. As Harvey observed, there are exceptions to the new rules at the ACLU, and Steve cites one. I can just as easily cite other important speech cases in which the ACLU was absent — cases like Harper v Poway (2007), involving the rights of a Christian student to wear a t-shirt condemning homosexuality. The ACLU stayed out of this case even when a 9th circuit decision denying student speech rights was appealed to the Supreme Court (which vacated the 9th circuit’s deeply flawed ruling.) Only after its absence from the case was publicized (in my 2007 Wall Street Journal op ed) did the ACLU intervene.

Or consider U.S. v Williams (2008), in which the Supreme Court upheld provisions of the PROTECT Act that criminalized falsely pandering child porn — provisions the 11th circuit rightly deemed “vague and standardless as to what may not be said.” The PROTECT Act was the successor statute to the 1996 Child Pornography Prevention Act, which the Court struck down in Free Speech Coalition v Ashcroft (2002.) The ACLU submitted an amicus brief in that case and hailed the decision as “a forceful defense of First Amendment principles.” That was then. A few years later, with a new regime firmly in place, the ACLU exercised its right to remain silent about the PROTECT Act, while the National Coalition Against Censorship and the First Amendment Project filed an amicus brief. A 7 – 2 majority upheld the Act, which, as Justice Souter observed in dissent, dramatically undermined First Amendment protections the Court had extended to virtual child porn only a few years earlier (partly at the urging of the ACLU.)

Why would the new ACLU fail to defend this important 2002 victory for freedom of speech and thought? Defending virtual child porn is probably not all that popular with donors; besides, how many people would notice or care about its absence from this case?

It’s naturally easier to know what an organization is doing (and advertising) than what it is not doing. The ACLU’s shift from civil libertarianism to liberalism, especially regarding issues that pit expanding notions of social equality against traditional free speech rights, is gradual, unacknowledged and not readily apparent, since evidence of it often lies in cases the ACLU does not take and lobbying efforts it does not make.

It would take at least a brief book to lay out the case for the ACLU’s retreat from the unbiased defense of liberty, unmitigated by financial self-interest (and I’ve written one.) But, for now, remember its go along to get along approach to post 9/11 watch lists: the ACLU volunteered to comply with government blacklists in order to boost fundraising. (It’s a long, complicated story, which I summarized here, and in Worst Instincts.) And note the ACLU’s endorsement of aggressive, recent efforts by the Department of Education to crack down on harassment, broadly defined, without regard for free speech. Lately, when the ACLU isn’t actively supporting efforts like this, it’s tacitly supporting them by failing to stand up publicly for student speech rights when Congress considers potentially repressive legislation, like the Tyler Clementi Act, or by ignoring speech rights even in its own, model anti-bullying policies.

Finally, consider the ACLU’s gleeful reaction to King & Spalding’s withdrawal from the DOMA case, under pressure. As former ACLU Executive Director Ira Glasser observes, “The ACLU has historically for over 90 years relied more than any other organization on volunteer law firms to handle unpopular cases. Imagine how it would be howling if Ted Olson’s firm had, under homophobic pressure, withdrawn from the court challenge to the Act.” Sometimes, to apprehend the ACLU’s devolution, you have to listen for the sound of its silence.