I asked Geof Stone to respond to my post defending the ACLU's exclusion of Communists from leadership roles and staff positions, and its statements that Communists, fascists, and others are unwelcome as members. (Geof is one of the scholars who criticized the exclusion, and whose criticism I was in turn criticizing.) Here's Geof's response:

Professor Volokh has, as always, offered a set of thoughtful observations on a difficult issue. As "the First Amendment scholar" referred to in the post, I thought it appropriate to add a few words.

Eugene's central point is that private organizations have no constitutional obligation to admit as members people they don't like. Of course, this is correct. The Constitution applies only to government. Yale University, Microsoft, and the Boy Scouts cannot violate anyone's constitutional rights.

Does this mean they act morally or wisely if they have a Jewish quota, or refuse to hire blacks, or exclude gay scoutmasters? Of course not. That these acts are not unconstitutional does not make them admirable, ethical, or defensible.

On the other hand, a private organization is not bound ethically to admit or employ all-comers. The Chicago Cubs don't have to let people who can't hit a baseball play shortstop (although they have long followed such a policy), and the Catholic church doesn't have to let Lutherans serve as priests.

The morality or wisdom of exclusionary decisions must turn on the nature of the private organization and the nature of the exclusion. I stand by my statement, quoted by Eugene, that the ACLU's decision to exclude "Communists" was a sign of "falter[ing]" in an "organization[] dedicated to the protection of civil liberties."

Certainly, the ACLU had every legal right to do what it did. But in doing what it did, it betrayed its own principles. The core principle it betrayed was that individuals should be judged on the basis of their actions rather than on the basis of their political or religious associations.

A fundamental problem during the anti-Communist witch hunt was defining a "Communist." Was a "Communist" someone who was currently a member of the Communist Party? Someone who had once been a member of the Communist Party? Someone who had been a member of an organization that had once been affiliated by the Communist Party? Someone who had once been a member of an organization that had once been supported by the Communist Party? Someone who had once attended a meeting of an organization that had once been affiliated with the Communist Party? Someone who had dated someone who had once been a member of the Communist Party?

Certainly, a private organization that adheres to certain core beliefs can ethically insist that its members support those beliefs. If the ACLU wished to insist on this, the proper approach for the ACLU would have been to focus on whether individuals supported the organization's core beliefs, rather than to focus on "Communism."

By allowing itself to be intimidated into sacrificing the principle that individuals should be judged on the basis of their actions rather than their political associations, the ACLU fell victim to the same hysteria of "guilt by association" that would infect the nation for the next two decades.

Perhaps other private organizations could act this way without violating their most fundamental values, but this was not the case for the ACLU. It had a responsibility to stand for a principle, and in this it faltered. Who knows, following Eugene's logic, perhaps members of the ACLU will someday soon demand that Muslims be excluded from its Board. I hope not.

I think my original post and Geof's suffice to lay out the arguments on both sides, but let me offer a brief reaction. The ACLU's rule as to the board and its staff was that the ACLU "regards it as inappropriate for any person to serve on the governing committees of the Union . . . or on its staff, who is a member of any organization which supports totalitarian dictatorship in any country, or who by his public declarations and connections indicates his support of such a principle." Its statement as to its members was that "The ACLU needs and welcomes the support of all those -- and only those -- whose devotion to civil liberties is not qualified by adherence to Communist, Fascist, KKK, or other totalitarian doctrine." The member statement thus, as I read it, doesn't focus on members' group memberships, but rather their views; the ACLU concluded, I think quite rightly, that those who adhere to Communist, Fascist, or KKK doctrine can't at the same time adequately support the organization's core beliefs.

The officers-and-staff statement did also ask whether people belong in certain organizations; but it seems to me that, where private organizations are concerned, judging people based on their political and religious associations can be quite proper. Membership in the Communist Party or the KKK doesn't tell you everything about a person's view, but it generally tells you something. We're not talking here just about past membership, or membership in a group that's supposedly allied with the bad groups; that may indeed be less telling. But if someone is currently a member of an organization that supports dictatorship (or racism), and works towards dictatorship (or greater racial prejudice), it seems to me that the ACLU can reasonably conclude that this person is pretty unlikely to be a committed ACLU officer or staffer. And outside who are judging a group may likewise think the less of the group because it has Communists or Klansmen among their officers.

I certainly hope that the ACLU won't exclude Muslims as officers, but that's because I suspect that many Muslims can be quite committed civil libertarians, much as many Jews are. The closer analogy is to the Catholic church excluding Muslims as bishops. Yes, you can imagine someone who is currently enrolled in a mosque but who would make a great Catholic bishop. It just isn't very likely. Nor is it likely that someone who is a member of the Communist Party or the Klan would do a good job of defending civil liberties.