Letter: Free Speech for All Is Still Our Mission

The American Civil Liberties Union, writes its senior litigator, has not abandoned that historic vocation.

Illustration of a megaphone with a cork removed from the bell.
The Atlantic; Getty

The ACLU Has Lost Its Way

“The ACLU now seems largely unable or unwilling to uphold its core values,” wrote Lara Bazelon earlier this month, arguing that the civil-liberties organization has neglected its central purpose of defending freedom of speech without partisanship in favor of a broad embrace of progressive causes.

Lara Bazelon accuses the American Civil Liberties Union of having lost its way. We have not.

Bazelon first says the ACLU “bestow[ed] an ambassadorship and scribe-for-hire services” on Amber Heard after the actress pledged $3.5 million to our organization, implying that this was some sort of quid pro quo. In fact, Ms. Heard made the pledge in 2016; it wasn’t until two years later, in 2018, that we asked her to sign an op-ed and become an artist ambassador. We did so to help bring attention to the issue of gender violence, not as a reward for a donation. Celebrity ambassadors are an important way for the ACLU to communicate with mainstream audiences about crucial issues. The positions have nothing to do with donations.

Next, Bazelon suggests that we have abandoned our historic commitment to defending the speech rights of all in favor of advocacy for progressive causes, and cites as evidence “case selection guidelines” drafted in 2018. But the guidelines, which I drafted with a committee, expressly proclaim that free-speech rights “extend to all, even to the most repugnant speakers—including white supremacists—and pursuant to ACLU policy, we will continue our longstanding practice of representing such groups.” And we have continued to do just that, representing and supporting organizations and individuals with whom we vehemently disagree, including: Trump supporters, the Trump lawyer Michael Cohen, Donald Trump himself, the NRA, the anti-trans provocateur Milo Yiannopoulos, anti-Semitic protesters, racist and homophobic students, and the Koch-supported Americans for Prosperity. Most recently, we called on Georgetown University not to fire Ilya Shapiro over his “lesser Black woman” tweet about President Biden’s commitment to name a Black woman to the Supreme Court, and hailed Elon Musk’s pledge, should his purchase of Twitter go through, to re-platform Trump. Bazelon cites not a single case we declined to take up as too controversial.

Bazelon also criticizes us for opposing the Supreme Court nomination of Brett Kavanaugh, implying that we did so for partisan reasons. But she fails to note that because of our commitment to take no position on nominees generally, we remained neutral as to fellow Trump appointees Neil Gorsuch and Amy Coney Barrett, and indeed as to Kavanaugh himself—until the last minute, when the hearings disclosed the sexual-assault allegations made by Christine Blasey Ford. Our opposition, which required a special board meeting to invoke an exception to our customary position of neutrality, was based on the serious questions raised by the sexual-assault allegations, not partisanship. Bazelon herself took this position. In a 2019 article she wrote for Politico, she said: “My objections weren’t about his ideology; they were about his lack of judicial temperament and what I believed to be credible allegations of sexual assault.” How can she criticize the ACLU for doing the same thing, for the same reason?

Finally, Bazelon misrepresents our position on former Education Secretary Betsy DeVos’s Title IX sexual-harassment regulations, citing a tweet thread to imply that the ACLU favored the interests of those who claim they were harassed over those accused of harassment. In fact, as Bazelon concedes only in parentheses, the ACLU expressly supported increased fairness for the accused, including requirements for live hearings and cross-examination, and criticized changes that let universities off the hook for investigating complaints. We also criticized DeVos’s imposition of an evidentiary standard that unfairly tips the scales against complainants, and that without justification imposes a heavier burden on those alleging sexual harassment than those alleging racial or disability-based harassment. In short, our Title IX response reflected a careful balance of competing values, and in no way an abandonment of principle.

We defend Bazelon’s right to express her view, no matter how much we disagree. But bending the facts to further that opinion has no justification.

David Cole
National Legal Director
American Civil Liberties Union

Lara Bazelon replies:

David Cole claims that I am guilty of “bending the facts” in my critique of the ACLU. But I am not the truth-twister here.  

In his opening salvo, Cole claims that the ACLU’s decision to ghostwrite Amber Heard’s Washington Post op-ed and grant her an ambassadorship as the face of gender violence had “nothing to do with” the $3.5 million she promised to pour into the organization’s coffers (but never did in full). Cole’s assertion is disingenuous and insults the intelligence of Atlantic readers.  

Cole also makes the apples-to-oranges claim that because I opposed Brett Kavanaugh’s Supreme Court confirmation, I cannot criticize the ACLU’s decision to spend $1 million on attack ads against him. What Cole fails to note is that I am a private citizen and the ACLU is a $300-million-per-year behemoth with a nonpartisan, apolitical mission statement.  

Cole’s claim that I misrepresented the ACLU on Title IX is similarly unconvincing. I quoted the ACLU’s stridently anti–due process tweets and its subsequent position supporting due process. The contortions and failure to grapple honestly with them are the organization’s.

Cole concludes by declaring that despite everything, the ACLU will stand up for my right to speak out. Apparently, this means I fall within the class of people who, according to the ACLU’s 2018 guidelines, must be defended on free-speech principles and who, at the same time, must be loudly and publicly denounced.

To that unasked-for representation, I say, no thank you. I am going to hold out for a zealous advocate.