The Decline and Fall of the ACLU
Let's remember and honor free speech pioneers like John Stuart Mill, Robert Jackson, and Jerry Goldberger.
When I was growing up as a young idealistic liberal (having yet to calcify into the embittered centrist I am today), there was no organization I admired more than the ACLU. They drew a line in the sand and defended everyone’s right to free speech, even those who used that right to advocate abominable ideas. That a Jewish ACLU lawyer, Jerry Goldberger, went to court to defend neo-Nazis’ rights to march in Skokie in the 1970s was tremendously inspiring to me. For although I didn't actually learn specifically about the 19th-century political philosopher John Stuart Mill until many years later, I was already conceptually primed for him and his hardcore defense of free speech, made over 150 years ago. Even when—especially when—it is odious speech:
Every man who says frankly and fully what he thinks is so far doing a public service. We should be grateful to him for attacking most unsparingly our most cherished opinions.
[T]he peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.[...]
He who knows only his own side of the case, knows little of that...He must be able to hear [counterarguments] from persons who actually believe them; who defend them in earnest, and do their very utmost for them. He must know them in their most plausible and persuasive form; he must feel the whole force of the difficulty which the true view of the subject has to encounter and dispose of; else he will never really possess himself of the portion of truth which meets and removes that difficulty.
Okay, you may be thinking, but what about opinions that are so extreme, they don’t even deserve to be entertained as counterarguments? Mill had an answer for that too:
Strange it is, that men should admit the validity of the arguments for free discussion, but object to their being “pushed to an extreme;” not seeing that unless the reasons are good for an extreme case, they are not good for any case. Strange that they should imagine that they are not assuming infallibility, when they acknowledge that there should be free discussion on all subjects which can possibly be doubtful, but think that some particular principle or doctrine should be forbidden to be questioned because it is so certain, that is, because they are certain that it is certain. To call any proposition certain, while there is any one who would deny its certainty if permitted, but who is not permitted, is to assume that we ourselves, and those who agree with us, are the judges of certainty, and judges without hearing the other side.
Or as the great Supreme Court Justice Robert Jackson said, right in the middle of World War II:
We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
Stirring stuff!
Getting back to Goldberger, the ACLU lawyer who defended those Skokie Nazis: he himself is very down on the direction the ACLU has taken, and other ACLU emeritus greybeards are similarly despondent.
The young woke progressives running the organization now probably just dismiss these guys as old out of touch white dudes, which makes me want to cry—or scream. But I don’t think the current ACLU team is even doing themselves any favors, and this NYT pull quote illustrates why:
So they have devolved to being just one more generic progressive organization competing for visibility and fundraising with hundreds of others. How can they stand out if they toe the standard woke-prog line and never do anything to distinguish themselves?
Not to mention that it makes them lose all credibility with anyone in the center. Even if they only occasionally take up a case of defending someone on the far right, doing so provides them a strong talking point to wield as a cudgel against accusations of political bias—regardless of whether the accusations may be largely true on the whole.
Furthermore, as Goldberger himself pointed out in an ACLU article from only a year earlier (March 2020), which still appears on their website despite his subsequent criticism of the organization: when you fail to defend the free speech rights of “bad guys” (and they don’t get much worse than Nazis), you leave open the door for your own rights to ultimately be curtailed:
Central to the ACLU’s mission is the understanding that if the government can prevent lawful speech because it is offensive and hateful, then it can prevent any speech that it dislikes. In other words, the power to censor Nazis includes the power to censor protesters of all stripes and to prevent the press from publishing embarrassing facts and criticism that government officials label as “fake news.”
It is appalling and depressing to me that today’s ACLU progressives don’t seem to understand this very basic concept.
I commend the interested reader to check out this 1978 ACLU pamphlet, WHY THE AMERICAN CIVIL LIBERTIES UNION DEFENDS FREE SPEECH FOR RACISTS AND TOTALITARIANS, which addresses many specific objections like “group libel”, “fighting words”, “inciting a riot”, “shouting ‘fire’ in a crowded theater”, and more.
Excellent article!