We need a true defender of the First Amendment, and it isn’t the ACLU

I have a confession to make, which is sure to set the teeth gnashing of my conservative brethren.

I was once a proverbial “card carrying member” of the American Civil Liberties Union. Not something you hear a lot of Republicans admit, I grant you.

I was supportive of the ACLU because, despite taking a number of troubling stances on political issues that I very much disagreed with, I still saw a fair amount of political bravery in the organization defending the First Amendment — the amendment I most value — even when the people and groups they were standing up for were abhorrent.

White supremacists march the night before the “Unite the Right” rally, on Aug. 11, 2017 in Charlottesville, Virginia. (Zach D Roberts/NurPhoto/Zuma Press/TNS)

Nowhere was that more apparent than in the landmark Supreme Court case of Brandenburg v. Ohio.

Clarence Brandenburg was a leader in a rural Ohio chapter of the Ku Klux Klan. In the summer of 1964, Brandenburg gave an inflammatory speech, after which he was arrested and charged with advocating violence under Ohio’s criminal syndicalism statute.

This was a law that made it illegal to advocate “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”

The ACLU of Ohio approached Brandenburg, offering to represent him and fund his case all the way to the U.S. Supreme Court.

In June 1969, the court held that the state of Ohio could not punish inflammatory speech, unless that speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Clearly, no one at the ACLU, including his attorney Allen Brown, approved of Brandenburg’s speech. In fact, they were likely disgusted by it. No one likes defending terrible people with horrifying opinions like Brandenburg. Even being in the same room with him was probably difficult.

But the ACLU’s work on that case established free speech protections for everyone. And thank God it did, because the moment we turn the government into the arbiter of things we are allowed to say, or not allowed to say based on the acceptability of the sentiment and content, we will be in very dangerous territory.

Unfortunately, the ACLU’s bravery and commitment to defending liberty is over.

In June, a leaked memo on case selection guidelines from the ACLU was obtained by former board member Wendy Kaminer, and made public. In the memo, staffers outright state that the organization’s defense of free speech “may have a greater or lesser harmful impact on the equality and justice work to which we are also committed.”

As the organization considers which cases to take, it will now consider “factors such as the (present and historical) context of the proposed speech; the potential effect on marginalized communities; the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values; and the structural and power inequalities in the community in which the speech will occur.”

The new guidelines also note, “the ACLU generally will not represent protesters who seek to march while armed.”

In other words, if your speech doesn’t meet the standards of a “social justice” agenda, and liberal, identitarian politics, we won’t defend your right to speak.

Obviously, I have a a problem with this shift in philosophy, but I’m not alone. Said former executive director of the ACLU, Ira Glasser: “That is a balance never before recognized by the ACLU as legitimate in deciding whether to take a free speech case.”

Agreed. Shame it is changing.

Thomas Paine, in “A Dissertation on the First Principles of Government,” famously wrote, “He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.”

This was the philosophy that the ACLU once believed in. It was one of the reasons that, despite its often loony agenda, I defended the organization and called myself a member of it.

By pulling back on cases that are “contrary to our values,” the organization will also be pulling back on protections that can and should be extended to the entire population.

Free speech is under assault from all sides in modern America, and there are few times in our history where we needed a vibrant, politically agnostic advocate for our most cherished freedom as much as we need it now.

But if the ACLU thinks that defending liberty means only doing so when it is convenient, easy, and fits neatly into a certain political agenda, than they have truly lost their way, and we are all worse off for it.

Matthew Gagnon

About Matthew Gagnon

Matthew Gagnon, of Yarmouth, is the Chief Executive Officer of the Maine Heritage Policy Center, a free market policy think tank based in Portland. Prior to Maine Heritage, he served as a senior strategist for the Republican Governors Association in Washington, D.C. Originally from Hampden, he has been involved with Maine politics for more than a decade.