Brian Lehrer: Brian Lehrer on WNYC. Now we're going to talk about an apparent growing identity crisis at the ACLU. This has been going on for a while now, but maybe you saw it written up in the recent New York Times article by journalist Michael Powell, who frames it as a divide between free speech absolutists. People who think defending even white supremacists' right to public expression is an important part of the ACLU's mission and history -- think Charlottesville when the ACLU defended the Proud Boys' right to protest in the town square or Skokie Illinois in an earlier generation when they supported the rights of Nazis to match near Jewish people's homes.

And the other side: those who think defending hate speech is antithetical to the other priorities of the organization beyond a certain point, namely protecting minority groups especially because all offensive speech is not equal. Some really victimizes people especially more marginalized people more than other offensive speech. The article is stirring up controversy among former and current ACLU staffers and people across the political spectrum, some of whom hotly contest the framing of the piece -- a New Republic critic said it was culture war propaganda in One-A clothing. ACLU legal director David Cole rejected the article as well saying they are committed at the HCLU to defending free speech as always and that the organization has faced similar bad faith critics as he sees them in the 1970s and the 1990s -- nothing new, according to the ACLU's David Cole. Is the ACLU really newly turning its back on the first amendment? Or like any mission-driven nonprofit, are they engaged in healthy debate about how to best live up to their own standards and values, especially as the American landscape changes and groups like the proud boys have the backing of powerful people like the former president and as we've seen in Charlottesville and on January 6th sometimes hate speech turns into deadly violence?

With me now are two people with two points of view on this former ACLU president Nadine Strossen, she is now a professor of law at New York Law School and author of the recent book. HATE: Why We Should Resist it With Free Speech, Not Censorship and Elie Mystal justice correspondent for The Nation. Welcome back both of you. Nadine, Elie to WNYC. Hi there.

Nadine Strossen: Thank you so much, Brian.

Elie Mystal: Hi, Brian. Thanks for having us.

Brian: Professor Strossen I'll start with you back in 1994 you wrote a 17-page article responding to a similar charge that the ACLU is, "Abandoning its traditional commitment to free speech and other classic civil liberties and it's becoming a trendy liberal organization primarily concerned with equality and civil rights." How did you see the ACLU changing almost 30 years ago when that was written and how do you see it today?

Professor Strossen: I did not see the ACLU as changing then, David, I'm sorry not David. I'm thinking of our legal director. Brian, I did not see the ACLU as changing then. Nor has it deviated from its unified mission, going back to more than 100 years ago when we were founded not to be solely a free speech organization, not to be solely an equal rights organization, but to fight equally strongly for both of those fundamental freedoms along with all other fundamental freedoms for all people. I had to smile Brian and your excellent introduction you started by saying this has been going on for a while.

I would say, yes, it's been going on for 101 plus years now as in certain cases there are tensions between different rights and it's not only between free speech and equality rights. There are often tensions between free speech and privacy rights, between free speech and not establishment of religion, but it's incredibly important that we have a domestic human rights organization the ACLU which is committed not to automatically privileging one right or one freedom of one group or another group over each other. Instead, to do what we demand of our government that it maximally protect all fundamental freedoms for all people.

I will tell you as reflected in the title of my book which you kindly recited, overall, in general, strong protection of robust freedom of speech even for hateful speech is an essential prerequisite for advancing the causes of equal rights, racial justice, LGBTQ rights, and so forth. Conversely, giving to government the power to censor offensive or hateful ideas will inevitably and has inevitably done the most harm precisely to individuals and groups who lack political power.

The political dissidents, the civil rights, and racial justice protestors, advocates for other minority groups. Ultimately, the ACLU continuing defense of free speech which it continues to do very strongly, we took our lumps for doing in Charlottesville in 2017, what we had done in Skokie almost 50 years earlier and have continued to do post-Charlottesville, but we believe that unless the government neutrally protects speech even for racist then anti-racists are not going to be effective in raising their voices and their power to protest and demand change.

Brian: Elie, how much do you agree with the premise, first of all, that the ACLU is looking differently today than in the past at the idea of defending hateful speech? If so how much is that a good thing or a bad thing?

Elie: I think the ACLU is looking a little bit differently than it has in the past and I think that is great. I think that is necessary. Look I am all for protecting free speech. I have a job because of free speech. I love speech. Speech is my friend, but the maximal protection of free speech at all costs tends to idle over the distinction between speech and violence and people act like you can draw a bright line between speech and violence, but as we have seen, as you pointed out in your opening, Brian, we saw in Charlottesville, we saw in January 6th, the trigger between speech and violence happened so quickly that it's very hard to say one is speech and one is illegal violence.

What the speech absolutist always want to tell you is, "Well, the only way to stop bad speech is with more speech." Have you ever been to one of these Moore speech rallies? One of these anti-racist rallies in front of the Nazis or the fascists or the white domestic terrorists? I have, Heather Heyer has. You know how fast that rally--? That "I'm just here exercising my speech right." You know how fast those can turn into violent encounters with Nazis because it turns out, Brian, that the people who match around talking about the desire to do violence against minorities are also the same people willing to do violence against minorities.

Having some cognitive nuance, having some ability to distinguish between speech that is just speech and speech that is actively in the process of inciting violence against people who look like me is important and is certainly something that the ACLU is more than capable of doing.

Brian: With hindsight, Elie, how would you--? Okay, Nadine, go ahead. You go.

Professor Strossen: Thank you so much, Brian and Elie. The ACLU actually was the organization that advocated for the current strong standard that protects even advocacy of violence but draws the line and I think it is the appropriate line, Elie, I'd be interested if you disagree, that what is not protected is intentional incitement of imminent violence that is likely to happen imminently. That line was drawn unanimously by the Supreme Court in 1969, in a case where the ACLU's counsel of record, the name might sound familiar to you,

Eleanor Holmes Norton, long time representative, non-voting representative of the district of Columbia and the first African-American woman to head the equal employment opportunity commission, fully committed to equal rights and racial justice, but to this day strongly supports the ACLU's position and the Supreme court's position in that case-- [crosstalk]

Brian: You're drawing a distinction. I'll let Elie get in on this in a minute. The distinction you're drawing, just so it's clear for the listeners if I have you right is people should be able to go into public in a group and say, "I think we should kill Jews and Black people," that's okay. Saying, "Let's go and kill Jews and Black people right now," is the only thing that's not okay. Is that an exaggeration?

Professor Strossen: It's not the only thing that's not okay, Brian, because the Supreme Court has recognized other exceptions to free speech. Again, the overarching principle that the Supreme Court enforces, it's usually called the emergency principle. Speech may be restricted when it directly imminently threatens or causes certain specific serious harm and there's no other way to prevent that harm.

Now, in Charlottesville, the tragedy was not the speech which couldn't have been more odious, the tragedy as documented by a non-partisan report that was commissioned by the City Council after the fact, was that there was inadequate law enforcement at every level. There was failure to adequately staff, failure to communicate where Heather Heyer and the other demonstrators were mowed down, there wasn't a single police officer around. That was a failure.

Brian: Let me get Elie Mystal back in on this. Elie, go-ahead.

Elie: You wouldn't need adequate law enforcement, you wouldn't need more cops, you wouldn't need more police if you weren't having people out here advocating for the death of minorities. Look, if the Brandenburg standard, if the current Supreme Court standard where it draws the line between speech and incitement of violence, if that was a good standard, if that was working as intended, then Donald Trump and Josh Hawley, and Mo Brooks would be in jail right now. They're not. They're not in jail right now because where we've decided to draw the line between speech and incitement is wrong. It's not helpful, it's not working.

I don't agree with the ACLU standards. I don't agree with the Supreme Court standard of where we've drawn the line between incitement and speech. I think, again, when we talk about the ACLU's commitment and need and I agree that we must defend speech, but when we talk about their need to defend Nazis, to defend white domestic terrorists when we talk about that, what we are talking about is not speech, it is violence. We have to do a better job, and we are capable of doing better of distinguishing between speech and violence. It doesn't have to be this absolutist thing where everything you say except for like eight magic words is okay. No, we can do a better job. We can have more nuance in this argument.

Brian: Elie, how do you respond to the argument that almost any censorious attitude affects less powerful minority groups in the long run even if policies restricting speech were meant to protect them.

Elie: Sure, that's not wrong. I understand that most of the time that people in power are not going to be on my side. All right. I accept that as a fact of life, but what I reject is this notion from free speech absolutist that the only way to protect me is to defend the people who would try to kill me. That is one of the whitest standards that we have in this country, that somehow the only way to protect the speech rights of minorities and underrepresented groups is is to zealously to the last defend the speech rights of the powerful majority who wishes to do harm.

The suggestion that we cannot tell the difference between protest for an extension of justice and equality versus rallies in favor of a white ethnostate. The notion that the law is so myopic that it can't tell the difference is offensive to me. I don't disagree that it's probably right that we are probably being accurately descriptive of what the law can do, but that's the only way- [crosstalk]

Professor Strossen: Elie, you use your free speech rights very well, but you're not giving me a fair opportunity to respond. To respond not only in a defense of the ACLU's historic position and the historic position, by the way, of the entire Civil Rights Movement and racial justice organizations and human rights advocates around the world because the alternative of going back to the pre-emergency standard when government did have more latitude and in other countries, it still has more latitude to prevent and punish speech that it is not proposing such a direct emergency, that gives the government too much discretion.

That discretion predictably is used over and over and over again to silence the voices of those you and I would consider to be on the right side of justice. We are not talking only about history. One of the ACLU's clients today is DeRay Mckesson, a national leader of the Black Lives Matter movement who is being prosecuted and civilly sued for a speech that he gave advocating Black Lives Matter, denouncing police violence and police killing and that has been attacked as hate speech. We know that government officials have attacked it as hate speech, that law enforcement and intelligence officials have attacked it as terrorist speech.

There was a lawsuit that succeeded in lower courts trying to hold him and therefore the BLM movement personally culpable because at one rally where he was speaking an anonymous person threw some kind of brick and injured a police officer so they are being accused of having violated the Brandenburg standard. We know that critics of BLM and other protesters are charging them with having instigated the assassination of police officers.

If you want to loosen the standards and give the government more power to punish speech because of an indirect potential connection it might have to violence, then mark my words, it is going to be precisely those who lack political power including advocates for racial justice pipeline protesters. We've seen it all over the country. We've seen the laws that have swept across this country seeking to punish protesters who are protesting the status quo. That's where the power balance lies, and that's why free speech is especially essential to the racial and social justice causes that the ACLU is also fighting for.

Brian: Elie, go ahead and respond to that.

Elie: Professor, I, of course, am saying that people like DeRay deserve a defense. I am, of course, advocating for DeRay's position. I think what's happening to him is wrong, and I'm glad that the ACLU is defending him. The question though on the table is whether or not the ACLU has to defend everybody. The problem here is that the Nazis and the fascists and the people that we're talking about, they're not hard up for lawyers.

Josh Hawley has a law degree, he can go defend the Nazis if he wants to. Jones Day can go defend the Nazis if they want to. The Nazis have lawyers on their side, so why is it incumbent upon the ACLU, a non-profit mission-driven organization that gets funding from donations from people like me. Why is it incumbent on the ACLU to be the ones defending the clan and the Nazis and all the awful people? Why can't ACLU just defend the good people?

Professor Strossen: I have a personal stake in this, Brian, which I think is relevant which is I'm the daughter of a holocaust survivor, so I certainly am no fan of the Nazis and Skokie or the white supremacists in Charlottesville and yet, I fervently believe that it is incumbent on the ACLU not to defend those people. We don't defend them, we are defending a principle which is essential to come to the defense of every cause in this country, including the human rights causes that the ACLU is also committed to fighting.

For example, in the Skokie case, we pointed out that the very arguments that were being made to silence the Nazis in that predominantly Jewish suburb with many Holocaust survivors 10 years earlier had been made in another town in Illinois, namely Cicero with a very different demographic where they were trying to keep out Martin Luther King. His speech was seen as hateful and offensive in their community so that exactly is why the ACLU needs to continue neutrally defending this principle, regardless of the context.

Brian, if I could say, I think, it's very interesting that Elie's critique of the ACLU is diametrically the opposite of the critique that was portrayed in Michael Powell's article in the New York Times. That article suggested the ACLU is not sufficiently rigorously continuing to defend controversial speech, whereas Elie is making the opposite point that we're continuing to do so too much.

Brian: All right. Let me tell our listeners that we can take a few phone calls on this. I wonder if we have any ACLU members or donors listening right now is this an issue for you with the organization one way or another? 646-435-7280, 646-435-7280, for Nadine Strossen former president of the ACLU, and Elie Mystal justice correspondent for The Nation. In the Times article, Elie, the main examples that they used to show internal discord at the ACLU were not examples of cases that they wouldn't take but of tweets mostly put out by individual staffers or local chapters.

There was an example of one staffer who tweeted that a book that called being transgender a craze or a fad should not be in circulation, that anti-trans book. Another staffer once tweeted disapprovingly when the Trump administration strengthened due process protections for male college students accused of sexual assault under title nine. Traditionally, the ACLU is for protecting the rights of the accused. To some people, these views represent a troubling change. Do they to you, Elie Mystal?

Elie: No, look, the reason why I'm not defending the article, why I'm arguing about the issue and not the article is because the article was just another piece of anti-woke, cancel culture propaganda. There are people in this world who used to-- We don't have to name who they are. There are people in this world who used to walk across this country saying whatever they want, to whoever they wanted without consequences. They could just say, they could make a slur, they could make a joke, they could do whatever they wanted without facing any consequences or pushback. Now, there are consequences and pushback. If you say, you might lose an endorsement deal. You might not get your My Pillow ad on television.

Now, there's consequences and pushback, and these people are sad about it. They want somebody to help them. They want somebody to care that they used to be able to make slurs about people, and they can't anymore, and that's what that article was about. That article was, "Why isn't the ACLU defending my mean tweets? Why isn't the ACLU defending alleged attempted rapist who get onto the Supreme Court? Why aren't they helping me?" That was that article. So, no, I don't think that article holds a lot of water. I don't think that the-- I do not think the ACLU is duty-bound and obligated to defend Klansman, I certainly do not think to the ACLU is duty-bound and obligated to defend mean tweets, come on.

Brian: Nadine.

Professor Strossen: The mean tweets, the tweets that were critiqued, in particular, were of individual ACLU staff members who were making statements that seemed at odds with the ACLU's institutional positions. As Anthony Romero, the executive director pointed out in the article, and I fully agree, we defend the free speech rights of our employees into dissent from ACLU positions, that should be clear that they are speaking for themselves individually and not for the institution. I would expect no less of an organization, that number one, defends free speech rights of employees.

You don't have to give up your individual free speech rights as the price of having a job. Number two, defend, debate, and dissent about everything. All of the points that Elie, that you've been making, we debate those points within the ACLU. I think that's healthy. I think it would be unhealthy if we did not constantly revisit and re-examine these positions.

Brian: This is WNYC FM HD & AM New York, WNJT-FM 80.1 Trenton, WNJP 88.5 Sussex, WNJY 89.3 Netcong, and WNJO 90.3 Toms River. We are in New York and New Jersey public radio. Let's get a couple of calls in here before we run out of time. Craig in Westchester you're on WNYC. Hi, Craig.

Craig: Hi, Brian. Thank you so much. I would like to get the feedback from Nadine and Elie on [inaudible 00:23:37]

Brian: Unfortunately, you're breaking up so bad. Let me try somebody else. Perry in South Orange on WNYC. Hello, Perry.

Perry: Hi, Thank you for taking my call. I hope you can hear me well. I'm calling because I'm intrigued by this conversation, but I'm going to ask that we zoom out for a moment. As a community educator, I'm aware of something called the pyramid of hate which we teach to children and their parents [inaudible 00:24:08] to do with the idea that if we allow hateful conversation, speech, that it is directly related to the increase in other kinds of diminishments for other people and violence.

I believe that what we're seeing in our society at the moment is the breakdown-- We're getting to violent behaviors because we do allow speech that is insightful and so while I don't want to weigh in on this particular debate about the role of the ACLU, I do think that it's an important piece of a larger conversation.

Brian: Perry, thank you very much. Davis, in Brooklyn. You're on WNYC. Hello, Davis.

Davis: Hi, thanks for taking my call. Very nervous, but I'll try to be-- Make my point. You brought up the ACLU lawyer who wanted to ban this book, and I am a freelance journalist. I covered gender. I've been directly affected--

Brian: Who wanted to stop distribution of an anti-trans book. That, in particular?

Davis: Yes, and I haven't read this book, but I know what it's about. It's important that it's allowed out in the world. I get that individual lawyers are allowed to tweet about things that are not part of the ACLU, but I think it's really important to talk about how that affects especially journalists and the public narrative. What some people are calling hate speech is often just a difference of opinion and when there are lawyers for the ACLU actively trying to shut down not only the publication of books and trying to shut down stories in the media that disrupt the narrative that they are-- They are constructing the argument they're constructing because they're lawyers and especially research about kids and gender identity.

What happens is those of us in the media are no longer allowed to report on them. It ends up being this cascading effect that may not be government censorship, but it certainly leads to self-censorship and it affects the style guides of these various news outlets I work for and I find it really frightening to have the ACLU, people who work there actively advocating censorship and seeing that research or anything that interrupts their argument is hate speech and there's a real misuse of hate speech. Some of the stuff, they're actually just facts or they're research that we really, really need to look at so we can do right by kids.

Brian: Davis, I'm going to leave it there. We're almost out of time. I know that particular ACLU staffer says in retrospect as I understand it that he wasn't ever actually trying to stop the book from being circulated. He was just saying it deserves not to get circulated, but let's get a last thought from each of you, Elie.

Elie: Man, do you know how much self-censorship every African-American and every organization engages in on a daily basis? Please. Look, the governments should not be in the business of banning or stopping books or research or journalism, obviously. If you want to publish a book or research or journalism, you should be aware that some people are going to disagree, and either you can take that heat or you can't. It is as simple as that. The government has no role in regulating speech. The marketplace of ideas is allegedly what we're all here to do, and some people can vote with their feet.

Brian: 30 seconds. Nadine Strossen.

Professor Strossen: Brian, I can respond to both Perry and Davis because both of them were making essentially the same point. That even speech that doesn't rise to the emergency standard and therefore can't and shouldn't be punished by the government can do a lot of harm. We don't do nothing when we hear hateful messages. We don't do nothing when we hear sensorial messages, rather we answer back, we fight for anti-discrimination laws, we fight against anti-minority violence.

The ACLU through its positive work in advancing all of these clauses, racial justice, and trans rights, and the whole human rights agenda, as well as free speech is ultimately providing the mechanism for everybody to equally enjoy all fundamental freedoms.

Brian: The conversation continues. We thank former ACLU President Nadine Strossen, now professor of law at New York Law School and author of HATE: Why We Should Resist it With Free Speech, Not Censorship. Elie Mystal, justice correspondent for The Nation and a consultant for WNYC's Radio Lab. Thank you both so much.

Elie: Thanks for having us, Brian.

Professor Strossen: Thank you, Brian. Thank you, Elie.

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