But it is the group’s attitude toward the First Amendment, the ACLU’s bread and butter, that has been most concerning. In 2004, The New York Times revealed that Romero had consented to sign a grant agreement from his former employers at the Ford Foundation, included at the behest of pro-Israel activists, stipulating that any recipient of the foundation’s largesse “agree that your organization will not promote or engage in violence, terrorism, bigotry, or the destruction of any state,” a vaguely worded contravention of free speech principles. Not only did Romero initially refrain from informing the board about the controversial agreement, but he also neglected to mention that he had helped draft it, allegedly recommending the Patriot Act as a model. That same year, the national ACLU was silent about a case involving a San Diego high school student punished for wearing a T-shirt condemning homosexuality, in contrast to the many students it had defended who donned clothing emblazoned with pro-gay messages (or in the case of one Alaska stoner it proudly represented, the message “Bong Hits 4 Jesus”).
Of course, no discussion of the ACLU can ignore Donald Trump, whose role in its degeneration, like that of so many other people and institutions opposed to him, was seismic. It was entirely appropriate that the ACLU would be one of Trump’s loudest antagonists; he made violating the letter and spirit of the Constitution an all but explicit plank of his campaign, and his upset victory subsequently led to a dramatic spike in the ACLU’s membership rolls. Accompanying this influx of new members and money, however, were pressures for the group to become another run-of-the-mill #Resistance outfit. In 2017, the ACLU of Virginia had supported the right of white nationalists to rally in Charlottesville. But once the rally turned violent, the national ACLU circulated an internal document with new “case selection guidelines,” stipulating, “Speech that denigrates such [marginalized] groups can inflict serious harms and is intended to and often will impede progress toward equality.” Before agreeing to take a free speech case, the document continued, the ACLU would now consider “the potential effect on marginalized communities,” whether the speech advances the goals of speakers whose “views are contrary to our values,” and the “structural and power inequalities in the community in which the speech will occur.” A manifestation of the ACLU’s new approach can be seen in the decision by one chapter to intervene in a high-profile case at Smith College, where the group amplified bogus claims of racism leveled by a student against some of the school’s custodial and cafeteria staff.
Were the ACLU today confronted with a lawsuit similar to National Socialist Party of America v. Village of Skokie, Glasser doubts the group would take it. (Tellingly, in an essay collection celebrating its most important cases published on the occasion of the group’s 100th anniversary last year, the ACLU neglected to include that seminal litigation). And when other constitutional rights have come into conflict with a First Amendment freedom even more unpopular with progressives than speech—that of religion—the ACLU has made it all but official policy to consider claims of religious conscience as smokescreens for discrimination, arguing that an evangelical Christian baker must make cakes for same-sex weddings against his will (a violation of both expressive and religious freedom), and that Catholic hospitals must perform abortions.
The embrace of political partisanship, the dropping of standards, the buckling to donor demands at the expense of long-held principles—Glasser says all of these developments have rendered the ACLU unrecognizable from the group he once led. The roots of the ACLU’s evolution from principled, nonpartisan defender of civil liberties into just another cog in the progressive machine are cultural as much as generational. You might say it’s the difference between devotion to the First Amendment and devotion to oil depletion allowances.
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