The ACLU has changed.

At a celebratory lunch in 2017 Daniel Goldberger, one of its star lawyers, found the speeches disconcerting.

A law professor argued that the free speech rights of the far right were not worthy of defense by the A.C.L.U. and that Black people experienced offensive speech far more viscerally than white allies. In the hallway outside, an A.C.L.U. official argued it was perfectly legitimate for his lawyers to decline to defend hate speech.

Mr. Goldberger, a Jew who defended the free speech of those whose views he found repugnant, felt profoundly discouraged.

I find reporting and commentary on this issue frustrating, because it always (at least so it seems) evades the real issue. The issue isn’t really “offensive” speech and it isn’t really what views we find “repugnant.” It would be nice if it were, because it would make the conflict so much easier. It’s not just about bad feelings, it’s about people getting killed…or disenfranchised or deprived of rights or confined to ghettos and so on.

“I got the sense it was more important for A.C.L.U. staff to identify with clients and progressive causes than to stand on principle,” he said in a recent interview. “Liberals are leaving the First Amendment behind.”

But what is principle? Is free speech obviously more a principle than preventing racist violence (for example)?

I get the ACLU’s point, I think, but I also think there’s a real tension, much realer than mere repugnance or offense.

[T]he organization finds itself riven with internal tensions over whether it has stepped away from a founding principle — unwavering devotion to the First Amendment.

Its national and state staff members debate, often hotly, whether defense of speech conflicts with advocacy for a growing number of progressive causes, including voting rights, reparations, transgender rights and defunding the police.

Those debates mirror those of the larger culture, where a belief in the centrality of free speech to American democracy contends with ever more forceful progressive arguments that hate speech is a form of psychological and even physical violence. These conflicts are unsettling to many of the crusading lawyers who helped build the A.C.L.U.

I don’t argue that speech is physical violence, but I do say that some speech can lead to physical violence. Look at January 6 for one glaring example. Look at Charlottesville for another.

A tragedy also haunts the A.C.L.U.’s wrenching debates over free speech.

In August 2017, officials in Charlottesville, Va., rescinded a permit for far-right groups to rally downtown in support of a statue to the Confederate general Robert E. Lee. Officials instead relocated the demonstration to outside the city’s core.

The A.C.L.U. of Virginia argued that this violated the free speech rights of the far-right groups and won, preserving the right for the group to parade downtown. 

And that turned out well.

This is what I’m saying. The far right groups in Charlottesville (and in DC on January 6) weren’t just offensive and repugnant, they were murderous. People got beaten up, and some got killed. I think the ACLU’S intervention was an intervention too many.

Revulsion swelled within the A.C.L.U., and many assailed its executive director, Anthony Romero, and legal director, Mr. Cole, as privileged and clueless. The A.C.L.U. unfurled new guidelines that suggested lawyers should balance taking a free speech case representing right-wing groups whose “values are contrary to our values” against the potential such a case might give “offense to marginalized groups.”

There it is again – even the people arguing for balance are weakening their own case by making it about “giving offense.” Offense is survivable; insurrectionist violence is not.

A.C.L.U. leaders asserted that nothing substantive had changed. “We should recognize the cost to our allies but we are committed to represent those whose views we regard as repugnant,” Mr. Cole said in an interview with The New York Times.

Never mind repugnant; will the views get people killed? At least tell the truth about what you’re defending. (I think the tension is real. I don’t 100% agree with the ACLU but I don’t oppose it either. I’m conflicted.)

When Brett M. Kavanaugh was nominated for the Supreme Court, the A.C.L.U. surprised longtime supporters by entering the fray, broadcasting a commercial that strongly suggested the judge was guilty of sexual assault. When a book argued that the increase in the number of teenage girls identifying as transgender was a “craze” caused by social contagion, a transgender A.C.L.U. lawyer sent a tweet that startled traditional backers, who remembered its many fights against book censorship and banning: “Stopping the circulation of this book and these ideas is 100% a hill I will die on.”

That of course is Chase Strangio.

Mr. Romero insisted he oversaw no retreat from the fight for free speech and points to key cases to underscore that. In recent years the A.C.L.U. argued that the attempt by Gov. Andrew M. Cuomo of New York to deny the National Rifle Association access to financial services infringed on freedom of speech; defended motorists’ right to put the Confederate flag on specialty license plates; and criticized Facebook and Twitter for banning Mr. Trump.

“I recall a conversation with a Planned Parenthood leader after we defended the right of protesters to stand outside clinics,” Mr. Romero said. “She was annoyed and told me, ‘When you lie down with wolves, you wake up with fleas.’ I replied, ‘If I have fleas, I wash them off in the morning.’”

Yeah that’s cute but meanwhile women are being intimidated and bullied by those “protesters.” I think the ACLU is dead wrong on this one.

The money that flooded into the A.C.L.U. after Mr. Trump’s election allowed Mr. Romero to flex the organization’s progressive muscles and greatly increase the size of its staff. Many of the new employees, however, were not nearly as supportive of the A.C.L.U.’s traditional civil liberties work. They worked inside their policy silos, focused on issues like immigration, transgender rights and racial justice.

Not women’s rights though. I guess those are so last century. Women are Karens who deserve to be intimidated outside Planned Parenthood clinics.

[I]n interviews, several younger lawyers suggested a toll taken. Their generational cohort, they said, placed less value on free speech, making it uncomfortable for them to express views internally that diverged from progressive orthodoxy.

I bet I know what kind of views.

The A.C.L.U. has in fact often gloried in its internal contentions. It split over decisions to represent the Nazis in the 1930s, the Ku Klux Klan in the 1960s, and the Nazis in the 1970s. After Skokie, a leader of the left-wing National Lawyers Guild complained of its “poisonous evenhandedness.”

It’s a tension.

H/t Screechy Monkey