The ACLU’s roots reach back to the National Civil Liberties Bureau, founded in 1917 to assist American conscientious objectors in World War I, which the organization definitely opposed. It also defended people charged under the Espionage Act of 1917, and the more draconian Sedition Act of 1918, which neutered the First Amendment and was repealed in 1920. So the ACLU’s roots are in its leftist orientation and, from its inception, in defending the Bill of Rights when it badly needed its own counsel.
Among the Liberty Bureau’s founders was Roger Nash Baldwin, who served a year in prison for draft resistance himself in 1918 (and would go on to write an approving travel book in 1927, “Liberty Under the Soviets”). Baldwin did not think the Bureau was sufficiently vigorous or militant, so 100 years ago, on Jan. 19, 1920, he reconstituted it as the American Civil Liberties Union.
In the 1920s, the ACLU stood with the NAACP in fighting racial discrimination and, setting a pattern, it defended the Ku Klux Klan’s right to assemble, in 1923. One of its most frequent clients was the Communist Party USA, although that was a bumpy relationship: The CPUSA also attacked the ACLU for defending the free speech of conservatives, and of critics of the USSR, one of whom Baldwin became. In the 1940s, Baldwin purged the ACLU of Communists, a decision rescinded in 1968 in grand ACLU fashion.
But the organization’s finest hour arrived 43 years ago, in the spring of 1977. Its membership had reached a high of roughly 300,000 when it intervened in a case in Skokie, Illinois, where the town, comprised in significant part of Jews including Holocaust survivors, denied a march permit to the American Nazis.
The ACLU appealed for over a year before it finally prevailed in the U.S. Supreme Court. There was bitter criticism of its taking the case, from groups such the Anti-Defamation League. Memberships and donations fell. But the ACLU maintained the First Amendment applied particularly to offensive and provocative speech.
A civil libertarian once observed that there ought to be a First Amendment club. To be admitted, you had to defend the speech rights of whomever you found most hateful.
The ACLU was that club.
Today, it has more than a million members. It ranks swelled after President Trump took office and issued an executive order suspending visitation by foreign nationals from seven predominantly Muslim countries. The ACLU sued. In two days, it raised more than $24 million online. In 2017, its proceeds from grants and donations nearly tripled from 2016, to more than $274 million.
That summer, it did another very ACLU thing and defended organizers of the now infamous Unite the Right rally in Charlottesville, Virginia.
Members and chapters were displeased. In the era of the Trump Resistance, free speech no longer seemed an absolute good so much as a bourgeois legalism, as James Kirchik observes in “Et Tu, ACLU?” at Air Mail, the online magazine.
In 2018, the ACLU promulgated new case selection guidelines stating it will now consider such factors as the present and historical context of objectionable speech as well as “the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values.”
You could say it has the best of intentions and you might find yourself in agreement with much of the membership. The people of Skokie undeniably had good intentions in seeking to keep Nazis from marching on their streets. But it was as true then as it is today that free speech needs its own counsel.