An Open Letter to the ACLU, on Civil Liberties

Dear American Civil Liberties Union:

I am a law professor who teaches Torts, Speech Torts, and Criminal Procedure.  I am also a longtime fan and donor.   I even met with one of your policy staffers in Ohio to discuss possible collaborations (he was highly competent, principled, and conscientious about free speech).   I write, in all sincerity, because I believe your current organizational priorities are undermining the very credibility that earned you prominence.  I think you are losing sight of the meaning of the term civil liberties.


Just to make sure we have an agreement on terms, civil liberties are individual rights that protect people from unjust governmental interference.  By contrast, civil rights ensure governmental intervention to provide people with protection against other people.   Your organization defends civil liberties when it provides prisoners with constitutional protections, ensures that Immigration and Customs Enforcement does not separate families, and works to invalidate illegal restrictions on reproductive rights.  In all of those cases, the government is attempting to prohibit people from exercising their individual rights, based on the government’s view of what is in the common good.

Your organization promotes civil rights when it speaks out against private discrimination and advocates for health care reform.  In those cases, your organization’s stance is one of increased governmental intervention.  You want the government to enact laws that prohibit individuals from doing things they would otherwise wish to do, in the name of the common good.

A society needs both civil liberties and civil rights to flourish.  However, the philosophy behind civil liberties is that certain individual rights are inviolable, even if the deprivation of those rights would make society better or safer.  That is why the First Amendment protects offensive speech; the Fourth Amendment protects against unreasonable searches and seizures; and the Second Amendment includes some individual right to bear arms (although reasonable restrictions are certainly permissible).  Sometimes, the rights of the individual supersede the common good, and you have a long history of championing those individual rights.  Historically, you are most famous for protecting the right of Neo-Nazis to march in a town heavily populated with Holocaust survivors.  Certain principles cannot be compromised for political expediency or social welfare, certain protections against governmental overreach must be provided to all.

The problem, as must be inescapable to you as well, is that your organization is so large now, and cares about so much.   But civil liberties and civil rights often conflict, precisely because the former demands freedom from government intervention and the latter seeks governmental restrictions or subsidies.  When these conflict, your organization has, of late, generally chosen whatever position is most in harmony with the political preferences of your donors.  I cannot discern why you have chosen to take on so many possibly conflicting causes, except that they all seem to share political ideology with most of your donors.

Just today, you retweeted an article in Variety about how California should use its tax credits to ensure more minority representation in the film industry.  That is a laudable proposal, except that it appears constitutionally suspect.  The First Amendment, whose protections your organization should champion above all else, does not allow the state to discriminate on the basis of speaker identity when providing benefits or meting out punishments.  Diversity and inclusion are important goals, which are fair and benefit all of us.  However, unless the government is discriminating against individuals, these goals do not implicate civil liberties.  Instead, the proposal to favor certain film studios using massive amounts of tax dollars in order to produce movies with specific content implicates the very civil liberties that give your organization its name.

Your nonpartisan credibility, and historically staunch devotion to protecting civil liberties, are now most needed, but seem to be less important than your political aims.   As you become more and more associated with partisan advocacy, we will lose our best defender of civil liberties.  I hope that does not happen.



Erica Goldberg

5 thoughts on “An Open Letter to the ACLU, on Civil Liberties”

  1. The ACLU lost its way a long time ago, especially in the wake of the Heller decision. It’s ceased being an organization for protecting civil liberties and has turned more into a mouthpiece for the authoritarians on the left.


  2. the Second Amendment includes some individual right to bear arms (although reasonable restrictions are certainly permissible)

    Please don’t make the same mistake Scalia made in Heller. Everybody who wants to restrict any given right believes that their restrictions are “reasonable”. It would be much more constructive to identify the core right protected by the Second Amendment, which the government may not infringe no matter how reasonable or desirable they think it would be.


  3. The policies suggested in this article overwhelmingly seem to have more to do with labor standards than with “content.” I suppose the race and gender of actors who appear in a film is a kind of “content”, but the race and gender of the crew, writers, and director aren’t. And even if some of these policies touch upon content, it seems like National Endowment for the Arts v. Finely allows the government to consider certain content issues when choosing who to give subsidies to, so long as there aren’t hard-and-fast restrictions.


    1. Thanks for the comment. I tend to think that crew doesn’t implicate content at all, actors do to some extent, and writers and directors (the creators of the expression) do the most. Finley seems distinguishable to me because those were very generic decency standards, whereas here the theory behind more diversity in the movie industry is, to a good extent, I think, to produce more diverse content (which is an excellent policy goal but seems unconstitutional). It may not be a lock as a violation, but it at least seems suspect, and the ACLU tends to choose civil rights over civil liberties in those battles, instead of staunchly protecting liberties.


      1. It seems like this hangs on whether “more diverse content” is the actual goal here – I can see why that would be suspect. However, the arguments in the retweeted article seem to be totally focused on jobs, jobs, jobs, so I’m looking at this more as a labor standards thing, with the effects on content only incidental and nonspecific.


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