Is The ACLU Reconsidering Its Role?

The disclosure of an internal memo at The American Civil Liberties Union has questioned whether the ACLU, long the standard bearer for the protection of free speech at all costs, the First Amendment, is considering modifying their position.

“Our defense of speech may have a greater or lesser harmful impact on the equality and justice work to which we are also committed,” wrote ACLU staffers in a confidential memo obtained by former board member Wendy Kaminer. The issue being brought to the fore in a nut shell is whether the ACLU in its defense of free speech should remain objective, defending all forms of speech, no matter how vile, or move to a more subjective position, no longer representing clients who are by their views and speech reprehensible, contributing to hate and discord in society.

Many, over the years, have been horrified by the ACLU’s protection of the speech of universally recognized hate organizations such as the KKK and the American Nazi Party.  In fact I personally was involved in just such a situation as a guest on the Oprah Winfey television show a number of years ago.

The neo-Nazis wanted to produce a program on free access T.V. in Kansas City. In order to avoid this possibility, the City Council, unable to find another approach, voted to close down public access T.V.  The Nazis claimed this act violated their free speech rights.  The ACLU took up their cause. The representative of the ACLU, the attorney appointed to represent the Nazis, an African American, was on the panel as were the Nazis, a Kansas City Black clergyman who was targeted by the Nazis with a cross burning on his lawn, and a City Council member, who later became a Congressman and for a time chaired the Congressional Black Caucus..  I took the position that our legal system should be more dynamic in the prosecution of group defamation and libel in the same manner in which it prosecutes defamation and libel of an individual.  I referred to the fact that defamation and or libel against a group had recently been made part of Canadian law and had passed muster in their courts. The ACLU attorney representing the Nazis took the traditional position of the ACLU that protecting the worst hate speech ensured free speech for all.

This revelation that ACLU staffers are reconsidering their classical position on free speech forced me to consider the matter further.  Here is what I found out by merely searching the web in an article in Wikipedia. In fact American jurisprudence has in the past already dealt with the issue of group defamation and libel. And while subsequent more liberal Supreme Courts have never overturned this decision, they have been more inclined to place greater emphasis upon free speech rather than its potential negative consequences for our society. Perhaps the answer to the quandary now facing the ACLU, given the explosion of hate speech and its consequent deleterious effects upon American society, might be more litigation against group libel while the ACLU maintains it traditional position

“Beauharnais v. Illinois, 343 U.S. 250 (1952), is one of the better known cases of group libel in the United States judicial system. Joseph Beauharnais was arrested in 1950 for distributing leaflets in Chicago. Within these leaflets, Beauharnais called upon the Chicago government to take action to address “the constant and continuous invasion, harassment and encroachment by the Negro”. An Illinois law outlawed the distribution of any material which “portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which said publication or exhibition exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots”, § 224a of Division 1 of the Illinois Criminal Code, Ill.Rev.Stat.1949, c. 38, § 471. Beauharnais disagreed with this law, and believed that his publications should be viewed as protected speech rather than group libel.

In a 5–4 decision, the court found Beauharnais guilty of libel. In his majority opinion, Justice Frankfurter wrote that Beauharnais’ comments provoked hostility, and, given Illinois’ history of racial tensions, should be outlawed.

Justice Black, in his dissent, stated that he believed that the statute could be abused to protect speech that otherwise should not be protected. However Frankfurt disagreed and said that “Every power may be abused, but the possibility of abuse is a poor reason for denying Illinois the power to adopt measures against criminal libels sanctioned by centuries of Anglo-American law.” Group libel laws, according to Frankfurt, played an important role in the history of common law, and its existence prevents speech that could lead to violence from being recognized as protected speech.”

What do you think?


About the Author
Retired and residing in Jackson, New Jersey, Rabbi Philip Lefkowitz was the rav of Agudas Achim North Shore Congregation in Chicago. During his nearly five decades in the rabbinate he led congregations in the U.S., Canada and the United Kingdom. He served as an officer, Executive Committee member and chair of the Legislative Committee of the Chicago Rabbinical Council.
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