Where’s the ACLU When You Need It?

Its new guard reflects the left’s turn against liberal values and toward progressive politics.


By Wendy Kaminer and Alan Dershowitz



‘Health care access is a civil rights issue,” declared a recent email blast. “Tell your representative to vote NO on repealing the ACA.” It could have come from any progressive advocacy group, but what made it remarkable was its source: the American Civil Liberties Union.


The ACLU was once a nonpartisan organization focused on liberty and equality before the law. In recent years it has chosen its battles with an increasingly left-wing sensibility. In doing so, it has become considerably more equivocal and sometimes even hostile toward core civil liberties concerns of free speech and due process.


When asked, ACLU officials are still apt to critique progressive efforts to censor “hateful” or “discriminatory” speech. If you look, you can find a page on the organization’s website opposing campus speech codes. You can find instances of ACLU affiliates opposing campus “free-speech zones” and other acts of censorship. You can hear an ACLU attorney defend the speech rights of Milo Yiannopoulos and read her First Amendment critique of an incitement lawsuit against President Trump. But you will also find the ACLU attaching “trigger warnings” to blog posts.


On balance, the organization has been a quiet friend more than an active opponent of campus censorship. How often have you heard the ACLU speak out against progressive censors? How often have you seen it quoted defending speech in coverage of censorship news, like the violent protests of Charles Murray’s talk at Middlebury College? Did you hear it criticize the wrongful removal of several Jewish students from a pro-Palestinian lecture at Brooklyn College? Did you hear the ACLU condemn the vilification of former Yale instructor Erika Christakis for urging students to “think critically” about rather than demand bans on “offensive” Halloween costumes? We didn’t.


Instead, the ACLU responded to the Yale incident by chastising free-speech advocates for their “refusal to confront . . . discrimination and inequality on campus.” Local ACLU officials offered a perverse free-speech defense of Muslim students who attempted to exercise a heckler’s veto and shut down a speech by Israel’s then-ambassador to the U.S., Michael Oren, at the University of California, Irvine.


And when the Northern California ACLU belatedly conceded Ann Coulter’s right to speak at Berkeley, it did so equivocally, condemning “hate speech” and asserting that the Constitution does not protect speech that “harasses” individuals. In fact, the Constitution protects a lot of speech labeled harassment, at least by today’s campus standards. ACLU national legal director David Cole subsequently issued a stronger statement disavowing the heckler’s veto against Ms. Coulter, which we hope signals a new willingness to criticize student censors.


The ACLU even sided with the Obama administration’s crusade against due process for college students accused of sexual misconduct. “Title IX is pretty awesome because it is expansive,” declares a 2014 ACLU blog post, referring to the antidiscrimination statute. “Title IX pushes universities to do a better job of creating a campus environment that discourages and, ideally, prevents sexual violence.” The ACLU has been silent about the widely documented proliferation of campus kangaroo courts that presume guilt and deprive the accused of the most basic procedural protections. (The official who oversaw these directives for the Obama administration’s last four years was a former ACLU attorney.)


How did the ACLU end up on the wrong side—or no side—of urgent debates about free speech and due process? In part the organization’s transformation is a result of generational shifts: The old liberal guard of ACLU leaders is aging. The new guard reflects the left’s turn away from traditional liberal values toward a “progressive” politics with expansive definitions of discrimination and restrictive approaches to speech.


New generations have wrought policy changes before. The ACLU became more concerned about discrimination in the 1960s and ’70s thanks to an influx of younger leaders shaped by the civil-rights movement. But for decades that agenda focused primarily on discriminatory actions, not speech, and the ACLU managed to balance the occasional conflict between civil liberties and civil rights.


Periodically its left wing, concentrated in Southern California, proposed adoption of an economic justice agenda, and periodically the proposals were defeated. Today, however, the left is the organization’s center of gravity, and achieving economic justice is an explicit ACLU mission.


Partisanship is an obvious pitfall for this ACLU, as its comprehensive—and enormously profitable—opposition to the Trump administration makes clear. Executive director Anthony Romero has tried to pre-empt or defuse charges of political partisanship with an unusual statement defending the ACLU’s anti-Trump initiatives, like the creation of a grass-roots “people power” project led by a former adviser to Nancy Pelosi and Harry Reid.


“We will be moving further into political spaces across the country as we fight to prevent and dismantle the Trump agenda,” Mr. Romero says, vowing “to fight him at every step—both on traditional civil liberties fronts and new ones.” This is nonpartisan, he claims, because the Trump administration “poses an unprecedented threat to our civil liberties.”


That begs the question. Some of the ACLU’s objections to the administration’s policies may be well-founded. But the ACLU’s concern for the due-process rights of visitors and immigrants contrasts with its refusal to defend the due-process rights of American college students. They can’t rely on the ACLU to defend liberty and justice for all, regardless of politics or ideology. Neither can you.


Ms. Kaminer is author of “Worst Instincts: Cowardice, Conformity and the ACLU” (2009). Mr. Dershowitz is a professor emeritus at Harvard Law School. Both are former ACLU board members.