The ACLU Has Lost Its Way

The organization now seems largely unable or unwilling to uphold its core values.

Illustration of a bull horn with a cork stuck in it
The Atlantic; Getty

Updated at 2:40 p.m. ET on May 11, 2022

The lurid spectacle that is Johnny Depp’s $50 million defamation lawsuit against his ex-wife Amber Heard hasn’t just tarnished his star and hers with allegations that he beat her and violated her with a bottle or that she severed part of his finger and emptied her bowels in the marital bed. (Both deny wrongdoing, and Heard has countersued for $100 million.) Amid this grotesquerie, it might be possible to overlook the bizarre involvement of the ACLU. But the civil-rights organization’s cringeworthy role deserves closer scrutiny because of its centrality to the case, and because it exemplifies the degree to which the ACLU has lost its way in recent years.

The heart of Depp’s claim is that Heard ruined his acting career when she published a 2018 op-ed in The Washington Post describing herself as “a public figure representing domestic abuse”—a thinly veiled reference to much-publicized accusations of assault she made against Depp in court filings toward the end of their short-lived marriage. But Heard hadn’t pitched the idea to the Post—the ACLU had. Terence Dougherty, the organization’s general counsel, testified via video deposition that after Heard promised to donate $3.5 million to the organization, the ACLU named her an “ambassador on women’s rights with a focus on gender-based violence.” The ACLU had also spearheaded the effort to place the op-ed, and served as Heard’s ghostwriter. When Heard failed to pay up, Dougherty said, the ACLU collected $100,000 from Depp himself, and another $500,000 from a fund connected to Elon Musk, whom Heard dated after the divorce. (The ACLU denies that it would ever request or solicit donations in exchange for ambassadorships or op-eds.)

The ACLU’s bestowal of an ambassadorship and scribe-for-hire services upon a scandal-plagued actor willing to pay seven figures to transform herself into a victims’ advocate and advance her acting career—Heard pushed for a publication date that coincided with the release of her film Aquaman—is part of the group’s continuing decline. Once a bastion of free speech and high-minded ideals, the ACLU has become in many respects a caricature of its former self.

Over the organization’s 100-year history, the ACLU’s unique value has been its apolitical willingness to stand up for all speech, regardless of the speaker’s identity, and to stand up for those accused, no matter what the accusation. This content-neutral, take-all-comers stance is based on the premise that the silencing of one side will inevitably lead to a collective hush irreconcilable with the free marketplace of ideas and the commitment to due process that are the hallmarks of our democracy. Doing this often-unpopular work turns on the belief that having an informed and independent-minded citizenry requires the ability to countenance, analyze, and, yes, at times defend opposing points of view.

In 1978, the ACLU successfully defended the right of neo-Nazis to march in Skokie, Illinois, a community populated by Holocaust survivors. But in 2018, following the ACLU’s successful litigation to obtain a permit for white supremacists to march in Charlottesville, Virginia, which ended in death and disaster, the ACLU issued new guidelines. Citing concerns about “limited resources” and “the potential effect on marginalized groups,” the organization cautioned its lawyers to take special care when considering whether to represent groups whose “values are contrary to our values.”

By “our values,” the ACLU was referring to the progressive causes it has championed with fervor and great fundraising success since the election of Donald Trump: immigrant rights, LGBTQ rights, reproductive freedom, and racial justice. Should its lawyers decide to take on a client espousing opposing views, the organization instructed them to engage in a public campaign “denouncing those views in press statements, op-eds, social media, and other available fora,” and “participating in counter-protests.” How, exactly, loudly disavowing their clients is consistent with lawyers’ duty to zealously represent them was not explained. Speaking as a criminal-defense lawyer, I don’t think it can be.

I don’t look to the ACLU to affirm my beliefs or those of my allies. On the contrary, I look to the ACLU to defend everyone, including my ideological enemies. To do that work, it cannot be beholden to any political party or ideology. Yet in 2018, the ACLU spent $800,000 on a campaign ad for Stacey Abrams during her run for governor in Georgia and $1 million in an attack-ad campaign against Brett Kavanaugh during his Supreme Court confirmation hearings. When the Trump administration proposed in 2018 a new regulatory scheme for schools to follow in Title IX campus-sexual-assault cases that offered more protections to students defending themselves against these allegations, the ACLU responded in an angry tweet thread: “It promotes an unfair process, inappropriately favoring the accused.” (The following year, the ACLU declared its support for new Title IX regulations’ “fair process requirements for live hearings, cross-examination, [and] access to all the evidence,” but it has never taken down the tweets or walked them back.)

The ACLU now seems largely unable or unwilling to uphold its core values. To be fair, the organization still goes to bat for some causes that are associated with conservatives and free-speech absolutists, including the right to bear arms, of anti-Semites to protest, and of parochial schools to discriminate in hiring based on religion. And yet since Trump’s election, according to The New York Times, the organization’s annual budget has grown threefold and its lawyer staff has doubled—but only four of its attorneys specialize in free-speech issues, a number that has not changed in a decade. Instead, the ACLU has expanded its services—and filled its coffers—as it takes partisan stances or embraces dubious causes. Meanwhile, when it comes to the red-hot culture-war issues squarely within its wheelhouse, such as the right to free, albeit hateful, speech on campus, the ACLU has stayed largely on the sidelines.

Progressive causes are near and dear to my heart. I am a feminist and staunch Democrat. As a federal public defender turned law professor, I have spent my career trying to make change in a criminal legal system that is riven with racism and fundamentally unfair to those without status and financial resources. Yet, as someone who understands firsthand that the fundamental rights to free speech and due process exist only as long as competent lawyers are willing to vigorously defend extreme positions and people, I view the ACLU’s hard-left turn with alarm. It smacks of intolerance and choosing sides, precisely what a civil-liberties organization designed to defend the Bill of Rights is meant to oppose.

I used to be a proud card-carrying member of the ACLU. Today, when its fundraising mailers and pleas to reenroll arrive in my mailbox, I toss them in the recycling.

This article has been updated to clarify the details of Terence Dougherty's testimony.