Is It Time to Set the First Amendment on FIRE? | Opinion

I miss the old ACLU.

You know the one I'm talking about: The American Civil Liberties Union that defended the First Amendment right of Nazis to march at Skokie, Illinois. The one that sided with homophobic pastor Fred Phelps and his church when it protested the funerals of dead American servicemen.

The ACLU's cases have sometimes involved terrible people with terrible causes saying terrible things. Nobody with good taste or decent morals — and certainly no one on the left side of America's political spectrum — would ordinarily choose to associate themselves with the infamous scoundrels and bigots the organization has occasionally aided over the years. Even so, it has usually been comforting to know that the ACLU is on the case. If Fred Phelps is protected by the Constitution, after all, then the rest of us are, too.

The ACLU Fought for Westboro Baptist Church
The ACLU fought for the right of the anti-gay Westboro Baptist Church to demonstrate where they wished. Their leader, Fred Phelps, above, is seen here at a demonstration in Wyoming. Kevin Moloney/Getty Images

It's not always like that, anymore.

Oh, the ACLU still takes on free speech cases and unpopular clients: Last month it argued an appeals case on behalf of a high school student who made a Holocaust joke. "In doing so, we were only doing what we have always done—defending speech rights for all, even those with whom we disagree," David Cole, the group's national legal director, wrote recently in The Nation.

But reporting in recent years suggests the ACLU has drifted away from its moorings as the nation's premiere defender of the First Amendment, struggling instead to balance its commitment to free expression with progressive stances on behalf of racial and sexual minorities. That would reflect a growing notion on the left that perhaps the Trumpist Age of Disinformation has revealed the limits of unfettered expression as a democratic virtue.

The ACLU's old guard worries something is being lost. Take David Goldberger, the attorney who argued on behalf of the Skokie Nazis. "Liberals," he warned last year, "are leaving the First Amendment behind."

So it's interesting — and maybe even encouraging — to see another group step forward to claim the mantle. The Foundation for Individual Rights in Education (FIRE), a group that's waged free speech battles on university campuses around the country, announced this week that it is rebranding itself. FIRE is now the Foundation for Individual Rights and Expression, a name change that brings with it a broader mandate and a plan to spend $75 million over the next three years on free speech education and litigation.

"Once the ACLU backs off its traditional role, who else is there?" said Ira Glasser, who ran the organization for more than two decades and now sits on FIRE's advisory board. (Former ACLU president Nadine Strossen is also on FIRE's board.)

Let's backtrack a bit, and acknowledge that the progressive reconsideration of free speech is nothing if not understandable. The ACLU's own evolution was sparked by its 2017 efforts on behalf of neo-Nazis whose angry "Unite the Right" protests at Charlottesville culminated in the death of Heather Heyer and gave us then-President Donald Trump's ugly "very fine people on both sides" equivocation between the racist and anti-racist demonstrators. Maybe there's something to the idea that "First Amendment protections are disproportionately enjoyed by people of power and privilege," as one former ACLU staffer put it. And maybe there's something to the idea that the Internet-fueled explosion of lies and conspiracy theories means we're no longer competing in a "marketplace of ideas," but instead collectively being forced to slog through an exhausting swamp of falsehood. Even for its most committed adherents, there can be days when the First Amendment doesn't look so wonderful.

That's not the whole story, though.

Yes, the First Amendment protected the marchers at Skokie in 1978 — but it was also a "crucial tool" for protesters during the Civil Rights Era. Maybe Westboro Baptist Church was protected in shouting its vile anti-gay slurs in public, but so were gay and lesbian demonstrations and newspapers that were the targets of would-be censors. In America, marginalized groups have been able to advance their cause because of our country's legal commitment to free speech.

"Especially for groups that are minorities, whether political dissidents or racial or other demographic minorities, (they) absolutely depend on robust free speech and are smothered by censorship," Strossen told me last year.

Indeed, the latest government-sponsored efforts to stifle speech — the "Don't Say Gay" bill in Florida, any number of state bills intended to limit young people's access to books about racism and sexual identity — are aimed directly at the the ability of those minority groups to tell their story. If those laws are defeated in court, it probably will happen because the First Amendment doesn't just protect people of power and privilege.

That makes free expression an idea worth continued defense by the progressives, even in these confusing and dangerous times. David Goldberger worries the left is leaving the First Amendment behind. It's not too late to come back.

Joel Mathis is a writer based in Lawrence, Kansas. His work has appeared in The Week, Philadelphia Magazine, the Kansas City Star, Vice and other publications. His honors include awards for best online commentary from the Online News Association and (twice) from the City and Regional Magazine Association.

The views expressed in this article are the writer's own.