Defending Speech We Hate
aclu.org
aclu.org
The identity crisis as detailed in the NY Times article states that the majority of lawyers that are members of the ACLU do not agree with the stance that ALL free speech should be defended. They argue that the free speech rights of the far right in the January 6th Capitol Riots were not worthy of defense by the A.C.L.U, whereas the BLM free speech rights are.
That is a big departure from the ACLU historic stance of the past and it's the problem inside the ACLU right now - today free speech does not trump voting rights, reparations, transgender rights and defunding the police in the eyes of the MAJORITY of their members.
> "The First Amendment really was designed to protect a debate at the fringes. You don't need the courts to protect speech that everybody agrees with, because that speech will be tolerated. You need a First Amendment to protect speech that people regard as intolerable or outrageous or offensive — because that is when the majority will wield its power to censor or suppress, and we have a First Amendment to prevent the government from doing that.
https://www.aclu.org/blog/free-speech/rights-protesters/prot...
The ACLU has actively come out AGAINST due process rights for accused in Title IX cases on colleges.
They have come out AGAINST various other free speech that "negatively impacts" folks whose voices are less strong.
Not against any of this, but this was traditionally more in the social justice advocacy group world vs ACLU world.
Actions speak louder than words. I think they are going to carry the free speech brand, but are moving into that speech is violence so I can respond with violence world.
I'm not sure what speech you're driving at specifically, but I want to make sure we're distinguishing between "voices of minority communities" (ignoring for the moment that racial/ethnic communities aren't homogeneous blocks) and "progressive voices that purport to speak on behalf of minority communities". In the latter case, we often find that the progressive caricature of minorities differs a lot from reality--e.g., the narrative that the black community wants to abolish/defund the police, an opinion which only represents something like 20-30% of the black community.
To be clear, I don't think you're necessarily conflating anything, but this is a common point of misunderstanding and I want to make sure we clarify up front to avoid predictable misunderstandings.
They are all in on defunding police
"ACLU’s executive director says defunding police budgets will be his ‘North Star’ going forward"
https://www.fastcompany.com/90512811/alcus-executive-directo...
Simultaneously, the NYT seems to be undergoing its own shift to being more openly anti-PC and anti-woke.
I don't read cover-to-cover so I might be getting a selective view. My general impression is that the NYT is trying to satisfy it's generally older, whiter readership by weighing in against wokeness.
I don't know if the NYT generally shifted from more neutral to more progressive, just that they perceive the excesses of wokism in education and media as a real problem.
Speech they hate gets a strongly worded press release.
Speech they like gets actual litigation support.
What exactly could they do? The ACLU is an organization that checks government overreach. What government overreach was involved when twitter banned Trump? Twitter banning Trump didn't violate anyone's civil liberties.
However, I think we need to realize the physics of censorship have changed. Censure was once only available to the government, since they ostensibly controlled all public spaces and had the forces to make it so. Today, private companies control the largest forums for civic discourse, of which there is only a small handful of companies with wide reaching networks. These private companies therefore can have an undue effect on our civil government simply by exercising their rights to censor speech on their platforms.
So, we could say, that Trump's civil liberties as currently defined were not violated. But it may be in everyone's interest to update our shared obligation to free speech (for what if the shoe was on the other foot?).
I don't think this is the case, so I'm led to think there's some other flaw in this line of reasoning. Notably,
> Censure was once only available to the government, since they ostensibly controlled all public spaces and had the forces to make it so.
Is plainly false. You've never had the "right to distribution". A printing press owner didn't have to publish your pamphlet. The church never needed to let you give a sermon. The NYT didn't have to publish your article. CNN has never had an obligation to let you on air. There has always been a "best" method of distribution, and its always been private.
Twitter blocking Trump isn't functionally different than the NYT or WaPo publishing the pentagon papers. It is a private organization exercising their right to push back against government propaganda. It is first amendment protected, and it should unequivocally be defended by those who believe in civil liberties.
This argument needs to be made more often. Thanks!
What stops Twitter, Facebook, et al from silencing a political candidate with whom we agree?
Let's imagine a popular progressive candidate running on a platform of anti-monopoly / privacy reform. If these companies feel threatened they have their marketing company come up with a scandal and pull the plug on the rising candidate.
Is that acceptable? Can we trust big tech to do the right thing?
Well, why haven't they banned Sanders or Warren or Klobuchar or Markey or AoC who have all called for various things from anti-trust cases to explicitly breaking up big tech companies?
> What happens, my dear fellow never-trumpers, if the shoe is on our own foot?
Get back to me when facebook updates their acceptable use policy to disallow criticism of facebook.
If it's based on average users over a time period, do we trust the site to report it accurately? If a user gets banned from a "private" site that has not yet hit the size threshold, and the user complains to the government and alleges that the site actually is big enough, does the the government go in and audit the company's logs to make a determination over whether it should be a "public" site?
If it's based on something looser, like "percentage of people who use this site as their only news source," (which does seem more defensible, to me) how do we set up the criteria for making the determination?
Also, how would the federal rules for content moderation look? Would a call for open insurrection still be bannable? What if two roughtly equal portions of the electorate don't agree about whether it was a call for insurrection? Who decides if it was?
I think questions like these need to be thought through and answered before we can seriously talk about making a law that prevents social media companies from banning anyone they choose.
Since you're the one who wants to change the status quo, why don't you suggest a proposal for how such federal moderation regulation would work? I'm willing to acknowledge that I may just be suffering a failure of imagination.
Though, maybe not in this thread... contact in profile, or I'm sure we can discuss it next week when it comes up on HN again. :)
Either that, or what twitter did is perfectly in line with civil liberties as defined by pretty much everyone. They exercised their right to free association. What law would you create to enjoin them from having done so?
You're comparing the ban of an individual with the ban of a whole ethnicity, which are obviously not equivalent.
This is an article worth reading, if you're curious about the ACLU's identity crisis.
'When the tide goes out, you find out who's swimming naked.'
Defending speech one hates is a way to maintain and develop the integrity of the law as an institution, and I think this is the underlying mission of the ACLU. The examples of what they do protect the right of individuals and groups to say this or that, but the real work of the ACLU is to be a grinding stone to refine the law the way an official opposition party works in a parliamentary system. While hard cases make for bad precedents, it is in the hard cases that ensure the law is fit for purpose.
In this sense, the ACLU are not reliably progressive activists or allies, even if they often outwardly behave as them, because they in-effect take a fundamentalist position on the principle of the rule of law over the effects of speech. In this view, progress may only occur on a foundation of the law, and this is what offends radicals and fanatics alike. The material of the speech they choose to defend is secondary to, and even independent of, whether the parties are saying something evil or not.
What I do not think they were prepared for is the co-ordinated assault on language itself, where we have real uncertainty about whether the rule of law can withstand a cultural movement in which words have no fixed or shared meaning. Arguing the meaning of a text, and unmooring the text from meaning as a means to selectively reconstitute it are very different problems. The integrity of the ACLU to its principle maybe a useful canary for how much the culture can withstand.
Here, the ACLU is suing to prevent citizens from getting public records released by the government. From ACLU: "We have filed for an emergency Temporary Restraining Order and a Motion for Preliminary Injunction to prevent the disclosure of documents you have requested from the Department of Corrections."
This really blew my mind–I never thought I'd see the day when the ACLU filed suit to protect government secrecy against FOIA sunshine. This seems to be a clear conflict between progressive causes (in this case: letting trans-identified male people access female prisons) and supporting government transparency. Here the ACLU decided transparency could and should be denied because the information was being requested by bad people, or for bad reasons, or something.
If you only support free speech (or transparency) in cases where you agree with the actors, you don't really support free speech at all.
Privacy is also a civil liberty worth defending, and in this case, it appears the ACLU is defending that liberty where it is in conflict with transparency.
(Probably worth noting: the right to free speech is not the right to know things. On the contrary, it also includes the right to remain silent; compelled speech is also a violation of the basic freedom of speech. The ACLU is not in conflict with defense of free speech in challenging a FOIA request on privacy-violation grounds).
I think prisoners should, like everyone else, have a right to privacy. Them being under government care shouldn't give random people the right to learn private medical information, anymore than it should be acceptable for an FOIA request to determine how many medicare/medicade users are trans.
> Such a disclosure would create a serious and unacceptable risk of harm to the people identified and violate their 8th and 14th Amendment rights. In addition, the requested information is exempt from disclosure under Washington’s Public Records Act.
[0] - https://www.aclu-wa.org/cases/does-v-washington-department-c...
I suspect the reason it has received little attention is that the sponsoring organization, WoLF, is known for allying with rigorous Christian conservatives and seems to be motivated exclusively by dislike of trans people.
I agree.
Lately I've been seeing a lot of people arguing against free speech claiming that pro-free-speech people don't actually care about free speech, but rather they only want free speech for the views they care about. In other words, "we should get rid of free speech rights because people who appeal to them are insincere". Which is undoubtedly true for lots of people, and this isn't new to this cultural moment--hypocrites have been part of every movement forever.
But "some of those people are disingenuous!" doesn't seem like a good reason to deny someone their rights. Indeed, free speech has been a boon to left-wing groups in the past and it certainly will be again in the future (to the extent it survives the present moment, anyway), even though they are clearly insincere in their free speech convictions (seeking to explicitly destroy it and all that). Destroying free speech just because you happen to have the cultural power is incredibly short-sighted.
I will say that I'm happy the debate has moved beyond "but you free speech people don't get it--we're only talking about banning speech that I don't like" and "you can't support free speech and criticize my anti-free-speech advocacy" and so on.
>We filed an amicus brief
>We advocated
>We sent a public demand letter
>We filed comments
>We sent a letter
>We questioned Twitter and Facebook
Compared to the work they did in the past, this is all incredibly low effort.
If anything, going through this list highlights a lot of actual hard work being done by completely separate organizations.
As an organization with a purpose (among others) to defend all legal speech, no. Their credibility is completely undermined.
As a very bad analogy, let's pretend the ACLU also explicitly expressed the belief that all drug use is bad and immoral (even legal drugs). Do you think they could credibly claim to equally defend people's rights in drug cases? Do you think they could avoid internal bias when choosing which cases to defend?
Here is one recent extreme example https://www.aclu.org/press-releases/aclu-em-defends-kkks-rig...
- Oliver Wendell Homes on the marketplace of ideas.
Unknown to most people, our modern idea of free speech was not founded by the constitution but by a judge of the name Oliver Wendell Homes. The history and story of how our modern concept of free speech came to be what is today is very relevant to the free speech problems faced by the ACLU.
If you're interested I recommend this podcast episode: https://www.wnycstudios.org/podcasts/radiolab/articles/what-.... Really relevant and really interesting.
https://science.sciencemag.org/content/359/6380/1146
https://epjdatascience.springeropen.com/articles/10.1140/epj...
https://www.scientificamerican.com/article/information-overl...
In a nutshell, there are only 24 hours in a day and humans have limited cognitive capacity; news and factual assertions tend to propagate fastest based on perceived significance and urgency, and it's easy to fake those qualities.
Informally, consider the existence of tabloid newspapers and clickbait advertising on most news sites. I'm sure you're familiar with companies like Taboola and Outbrain that put up ads with iconic imagery and headlines like 'cure unwanted medical condition with this one weird trick' or 'Insider secret revealed: professionals hate him' etc. etc. Now, you can block ads with the help of an extension if you're technically competent, but let's face it, the web is awash in fake content. If you go to a popular news site without any adblocking software, it's absolute hot garbage, and sadly you can easily find a correlation between particular ideological tendencies and the incidence of garbage.
The bottom line here is that that dishonesty is profitable and in marketplace of ideas terms that means it's easier to sell a defective product than a reliable one, because people prioritize emotional activation over truth. So picture the marketplace of ideas a a bunch of ideologues shouting out their thoughts on everything from the right end from which to eat an egg to what humanity's overall priorities should be. Now picture that the more successful ideologues purchase megaphones, platforms, and eventually gian sound systems. A naive consumer entering this marketplace is naturally going to accord the greatest weight to the loudest signals because it requires a tremendous amount of work to do otherwise.