The Volokh Conspiracy

One of the great things about blogging is that you don't need a news hook; you can write about whatever catches your eye. This post is about one such item, which I think is emblematic of three not uncommon errors in some liberal circles: A tendency to overextend constitutional norms from government action to private action; a tendency to overlabel action as McCarthyism or close to it; and a tendency to miss the real threat that Communism posed in its heyday.

It turns out (I didn't know this until last year) that in 1940, the ACLU formally barred Communists from leadership or staff positions, and either then or later took the position that it didn't even want them as members. And it also turns out that many people, including at least one First Amendment scholar whose work I much admire, have since then faulted the ACLU for this, calling it a sign of "falter[ing]" in an "organization[] dedicated to the protection of civil liberties." (In the late 1960s, there was even a strong internal ACLU movement to remove this bar, on the grounds that it was wrong from the outset.) Here are a few thoughts about this.

1. To begin with, an organization genuinely devoted to civil liberties shouldn't want its policy to be guided, even in part, by people who are committed to philosophies that are antithetical to those liberties, such as Communism and fascism. You can be dedicated to protecting Communists' right to speak, even though Communist doctrine dismisses free speech as bourgeois folly. But that doesn't mean that you should want them to help run your group.

2. What's more, this theoretical objection was amply borne out in the ACLU's then fresh history. In the 1930s, there were indeed some Communists, and more Communist sympathizers, in important positions at the ACLU. As one might expect, the Communists tried to bend the ACLU to the party line, for instance by making the ACLU soften its criticism of Communist attempts to violently suppress speech in the U.S.

And why not? Communists really weren't interested in protecting free speech; they were interested in defending Communism and the Soviets. (Joining groups and then influencing them to serve the Party's ends was standard procedure for the Communists, and they were apparently quite good at it.) And on top of that, with the Molotov-Ribbentrop pact, and the U.S. Communist Party's lockstep move away towards support for Nazi Germany — a position that was rightly anathema even to those who had been blind to Communism's many other sins — the dangers of influence by Communists were even clearer.

3A. On top of that, the ACLU was an organization that sought to change public opinion in favor of civil liberties. It's hard to do that when the public sees you as being under the influence of notorious enemies of liberty. The ACLU had been heavily criticized in the 1930s for this in the press, and a Congressional committee was preparing to criticize them for it further.

Of course, one can condemn organizations that surrender ethical principles for the sake of public relations — that bow to the unjust criticism of outsiders instead of explaining why the criticism was unjust. But here the criticism was in large measure well-founded, both ethically and factually. Ethically, the ACLU had no constitutional, legal, or moral obligation to keep people who adhered to anti-liberty creeds in its councils.

3B. And factually, there had indeed been Communists on the ACLU's board. There were also solid Communist sympathizers: The chairman of its board of directors was thought, even by many in the ACLU, to be in the Communist camp (whether or not he was a party member).

The ACLU's founding director and likely most influential official, Roger Baldwin, had long been an admitted supporter of communism as an economic system, and on balance an apologist for the Soviet Union. Though he criticized the Soviets at times, he had also praised the USSR as on balance a haven for liberty. His true break with the Soviets (which ultimately brought him around to pretty vociferous anti-Communism) came not with Stalin's ascent, not with the Ukrainian famine, not with the Terror and the show trials — he defended the Soviets even after that — but only in 1939, with the Molotov-Ribbentrop pact.

On top of that, Baldwin was on the record as having said that his commitment to civil liberties for supposed reactionaries was sheerly instrumental, just a tool for advancing the cause of communism. His struggle for free speech, he said, was just incidental to the class struggle, a useful tactic for furthering communist goals. When the working class took over, the resulting regime should be supported by any means necessary, including dictatorship. Dictatorship and suppression of civil liberties would be necessary to get to a socialist society, so such suppression is justified. That was the position of the founding director of the ACLU.

If you were an impartial observer of the ACLU in the 1930s, would you have trusted its commitment to genuine civil liberties, in the face of such evidence? Even if you accepted that Baldwin had changed his mind in 1939, wouldn't you expect at least some assurance that the ACLU would try to keep Communists from influencing its policy to meet their ends (which in 1940 were pro-Nazi ends as well as pro-Soviet ends)? If you were considering donating money, time, or effort to the ACLU, wouldn't you want to make sure that your donation wasn't diverted (and perverted) into serving the ends of totalitarianism, rather than liberty? It seems to me quite proper for the ACLU, a private ideological organization that had every constitutional, legal, and ethical right to pick and choose its leaders and administrators, to try to offer the public some such assurance.

Here's what I take away from this case study: First, we should remember that free speech principles affect private groups, especially private ideological groups, differently from the government. The government must hire people without regard to religion, but the Catholic Church may insist that its cardinals not be Protestants. The NAACP need not admit Klansmen. Such groups are entitled to exclude officials and members based on their ideology, in order to protect themselves both from internal subversion — in the sense of undercover diversion of a group to ends that diverge from its underlying purposes — and from justifiable public opprobrium.

Second, we must avoid the Reverse Mussolini Fallacy. That Mussolini made the trains run on time (if he did) isn't reason to like Mussolini; but that you dislike Mussolini isn't reason to dislike trains running on time. That McCarthy condemned Communism (which he often did through wrongful means) doesn't mean that there's McCarthyism — or even a violation of civil libertarian principles — whenever a group condemns Communists, or seeks to exclude them from its councils.

Third, the Communists really were a menace back then, and not just through espionage or plans for violent revolution. They also undermined legitimate groups, trying to turn them into fronts that would serve the Communists' (and to a large extent Stalin's) ends. That would be bad for the country, but it was also bad for the groups, including liberal or socialist groups. The ACLU majority of 1940 deserves praise, not condemnation, for recognizing this threat.