Fundraising and a generational change explain its departure from free speech values.
In February, the New York Times reported on an “eating while black” scandal at Smith College: In 2018, a janitor had seen a student eating in a deserted dormitory and, as he had been encouraged to do, alerted campus security. A security officer arrived, spoke to the student, apologized for bothering her, and left. No disciplinary action was taken, even though that particular room was reserved for a children’s summer camp program and supposed to be off-limits to students.
The ACLU took the case on behalf of the student, a black woman, who accused Smith of racial profiling and demanded an apology as well as new dormitories exclusively for students of color. When an independent investigation found no evidence of wrongdoing, an ACLU lawyer interviewed by the Times “cautioned against drawing too much from the investigative report as subconscious bias is difficult to prove.” In January 2019, Carl Takei, a senior staff attorney at the ACLU, declared victory in a January 2019 blog post titled “Smith College Overhauls Policing Practices After Black Student Racially Profiled.”
It would be less troubling that the ACLU invested so much energy in this sort of case if it weren’t simultaneously pulling back from other causes. Few other organizations have the ACLU’s storied reputation of nonpartisan support of civil liberties, especially free speech. In 1925, the ACLU unsuccessfully litigated the conviction of a New York politician for writing a “Left Wing Manifesto” in the case Gitlow v. New York. In 1964, a Ku Klux Klan leader was charged under an Ohio law against advocating violence for saying, “If our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.” The ACLU took his case all the way to the Supreme Court, which in its 1969 decision Brandenburg v. Ohio established the “imminent lawless action” standard for balancing free speech against potential incitement to violence. Most famously, in 1977, the organization won a decision regarding a potential neo-Nazi march in Skokie, Illinois, which had been barred by an injunction in a local court. The Supreme Court ruled in favor of the ACLU and the neo-Nazis whom they represented.
In 2018, however, the ACLU explained in a memo that there could be “conflicts between competing values or priorities” that would affect their selection of cases in the future. Publicized in the Wall Street Journal by former board member Wendy Kaminer, the memo, in Kaminer’s words, “cite[d] as a reason to decline taking a free-speech case ‘the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values.’ In selecting speech cases to defend, the ACLU will now balance the ‘impact of the proposed speech and the impact of its suppression.’ Factors like the potential effect of the speech on ‘marginalized communities’ and even on ‘the ACLU’s credibility’ could militate against taking a case.”
Just a few weeks earlier, the New Yorker had reported that the organization was spending more than $25 million to support favored political candidates or to oppose disfavored ones. The article’s leading example of the latter was a North Carolina sheriff who had worked with Trump’s Immigration and Customs Enforcement office.
One reason the ACLU has been able to invest more in political activities since 2016 is that it has a lot more money. The organization’s income from contributions and grants almost quadrupled between its 2015 and 2016 filings, from just under $43 million to just over $155 million. The associated ACLU Foundation went from $90 million to $140 million in the same period. Financial concerns likely affected the composition of the 2018 memo; Kaminer notes that “fundraising and communications officials helped formulate the new guidelines.”
The concern that the ACLU has become too focused on its financial position predates Trump. Its executive director for the past twenty years, Anthony Romero, came to the organization from the Ford Foundation, where he managed large grants, including grants to the ACLU. Romero joined as director just before the World Trade Center attacks, and his early tenure saw an increase in membership and donations around free speech and surveillance concerns. He gained a reputation as a talented and savvy fundraiser.
American culture was different in the Bush era. Back then, when Romero was accused of compromising the ACLU’s principles, it was for signing deals (including one with the Ford Foundation, his former employer) that included anti-terrorism language that some ACLU supporters found overbroad or overly deferential to the Bush administration. One agreement seemed to require the ACLU to check whether its employees were on a list of suspected terrorists, according to a 2007 New York Magazine article, titled “Freedom to Backstab.” The man doing the backstabbing was Ira Glasser, Romero’s predecessor at the ACLU, who had picked Romero as his successor and shepherded him through the vetting process. Glasser has become an outspoken critic of the organization, along with Kaminer and Nadine Strossen, who was the ACLU’s president during the end of Glasser’s time there and the beginning of Romero’s.
Non-financial incentives have likely affected the ACLU, too. A generational change was inevitable after a flock of young new lawyers were hired en masse from elite schools. In 2017, the organization made headlines for a funny amicus brief it filed on behalf of John Oliver, then being sued by a coal executive for defamation, which included headings like “Anyone Can Legally Say ‘Eat Shit, Bob!’” and “You Can’t Sue People for Being Mean to You, Bob.” ACLU lawyer Chase Strangio received breathless treatment in the New Yorker: “As a trans lawyer, Strangio works as a representative in every sense of the word: in court, in the media, and sometimes in state legislatures, for his clients, for the trans community, and for himself.” The article went on to mention that Strangio had been Orange is the New Black star Laverne Cox’s guest at the Emmys.
For the current crop of ACLU lawyers, civil-rights litigation is thus part of a larger project of personal branding, the ubiquitous vocation of the age of social media. It is a chance to become a figure in the celebrity culture of entertainment media. Individual celebrity empowers staff to depart from the organization’s traditional positions. That same lawyer Strangio last fall advocated for “stopping the circulation” of a book titled Irreversible Damage: The Transgender Craze Seducing Our Daughters. It is hard not to see a connection between this censorious mindset and the ACLU’s broader retreat from free expression.
The ACLU faces, as other nonprofits do, the same dilemma confronting liberal magazines and newspapers and progressive college campuses. Goals like truth, accuracy, free speech, free inquiry, and civil liberties are being questioned by a cohort of attention-grabbing young activists and by corporate-savvy leaders who understand that there is little money in abstraction. As in the ACLU’s memo, all these abstractions must come to be balanced against the shared mandates of the “woke” and the “capital.” Perhaps the best an old-fashioned partisan of abstract liberal values can hope for is that they will be balanced against the questionable but concrete political projects of diversity, equity, and inclusion. The alternative is that they will be extinguished entirely.
Oliver Traldi is a graduate student in philosophy at the University of Notre Dame.