The ACLU and Campus Speech

Wendy Kaminer in the Wall Street Journal goes after the ACLU for its selective approach to student free speech cases, because “historically it has vigorously defended student speech rights.” Well, that’s history. I’ve been trying for many years to convince the ACLU to adopt an aggressive, national program to protect student speech, and they won’t do it. As a result, all of the student speech cases picked up by the ACLU are the happenstance decisions of state affiliates.

It should come as no surprise that there’s a liberal tilt in these cases. The ACLU is the choice of last resort for conservative students, who now have FIRE, ADF, and numerous other conservative-friendly groups to appeal to. And since the ACLU has no national coordination on this issue, it doesn’t get involved in these cases where it has no direct interest. Kaminer cites a case where the Georgia ACLU filed an amicus brief proposing a better (but still unconstitutionally vague) approach to a Georgia Tech speech code. That’s what happens when you have 50 different policies on campus speech, and no national experts stepping in to provide guidance.

In fact, an example Kaminer cites as one of the rare interventions of the ACLU (a belated letter from Anthony Romero on the Muhammad cartoon controversy), is a perfect case study of its incompetence on campus speech: “He sent a letter to the University of Illinois urging it not to discipline student editors who published the cartoons in a campus paper.” This would have been lovely, except that the Daily Illini is an independent newspaper with no connection to the U of I. So Romero was asking U of Illinois administrators to interfere in the decisions of a private newspaper (by contrast, the ACLU never got involved in the Hosty v. Carter case of prior review of a public college newspaper). This kind of godawful mistake might have been avoided if the ACLU had even one knowledgeable staffer devoted to protecting student speech.

It is absolutely true that the ACLU has failed miserably to defend conservative student speech. But it is also true that the ACLU has failed almost as miserably to defend liberal student speech.

I don’t think ideology is the cause. The ACLU has been very aggressive at pursuing conservative members (it even tabled at the Conservative Political Action Conference this year). But somewhere along the line, the ACLU decided that protecting student speech didn’t bring in the membership and foundation money, and so this traditional focus of the ACLU has been abandoned in favor of the (quite essential) focus on the PATRIOT Act and national civil liberties issues.

So Kaminer is wrong to accuse the ACLU of political bias in deciding who to defend. But she’s right to criticize the ACLU’s failure to act in many student free speech cases.

This inaction by the ACLU, the AAUP, and other defenders of free speech on campus has led me to propose a new organization, The Institute for College Freedom, which will take on the censorship of both the left and the right on campus.

As someone who published the Muhammad cartoons in a campus newspaper, I don’t think Kaminer can accuse me of inaction, whatever our other disagreements might be.

David French, commenting on Kaminer’s op-ed, argued: “there could and should be left/right consensus on the First Amendment framework.” This is 99% true. There are a few cases where the left and right may disagree (for example, Kaminer supports “the associational rights of Christian student groups to discriminate against gay students” in apparent indifference to the individual’s right to join any student group at a public college).

But there are plenty of censorship cases on campus that desperately need our attention, and a new organization is the best approach to doing this.