All speech is equal, but some speech is more equal than others

I became a Wendy Kaminer fan more than a decade ago when I read her wonderful book I’m Dysfunctional, You’re Dysfunctional: The Recovery Movement and Other Self-Help, in which she skewered the victim mentality flowing from the recovery movement. It’s a wonderful book and, sadly, just as timely now as when it was first published. Kaminer showed herself to be witty, stringent in her outlook, astringent in her writing, and libertarian in her politics. I was therefore disappointed years later to discover that Kaminer was on the Board of the ACLU, since I’d figured out by that time that the ACLU was not about free speech, but about PC speech.

It turns out I shouldn’t have written Kaminer off so quickly. She’s a true free speech libertarian and, as she demonstrates in a lengthy op-ed at the Wall Street Journal’s Opinion Journal, she’s appalled by the ACLU’s double standard when it comes to protecting free speech:

“ACLU Defends Nazi’s Right to Burn Down ACLU Headquarters,” the humor magazine The Onion announced in 1999. Those of us who loved the ACLU, and celebrated its willingness to defend the rights of Nazis and others who had no regard for our rights, considered the joke a compliment. Today it’s more like a reproach. Once the nation’s leading civil liberties group and a reliable defender of everyone’s speech rights, the ACLU is being transformed into just another liberal human-rights group that reliably defends the rights of liberal speakers.

This transformation is gradual, unacknowledged and not readily apparent, since evidence of it lies mainly in cases the ACLU does not take. It’s naturally easier to know what an organization is doing (and advertising) than what it is not doing. But a review of recent free-speech press releases turns up only a handful of cases in which ACLU state affiliates defended the rights of conservative, antigay or otherwise politically incorrect speakers. And lately the national organization has been remarkably quiet in several important free-speech cases and controversies.

One of the clearest indications of a retreat from defending all speech regardless of content is the ACLU’s virtual silence in Harper v. Poway, an important federal case involving a high-school student’s right to wear a T-shirt condemning homosexuality. Of course, the ACLU doesn’t speak out on every case, but historically it has vigorously defended student speech rights, as its Web site stresses. It is currently representing a student in a speech case before the Supreme Court, Morse v. Frederick (involving the right of a student to carry a nonsensical “Bong Hits 4 Jesus” banner at an off-campus event). The ACLU pays particular attention to the right to wear T-shirts with pro-gay messages in school, proudly citing cases in which it represented students wearing pro-gay (as well as anti-Bush) T-shirts. This year, the ACLU awarded a Youth Activist Scholarship to a student who fought the efforts of her school to bar students from wearing T-shirts that said “Gay, Fine by me.”

As I said, the op-ed is lengthy, and the above is just the beginning.  If you’re a genuine believer in free speech, you’ll enjoy Kaminer’s indictment of an organization that still has the public believing it’s a free speech white knight, as opposed to just another liberal special interest group.

As for Kaminer herself, she is no longer on the ACLU national’s board although she’s on the board for the Massachusetts’ affiliate.  More importantly, she has joined the Advisory Board of the Foundation for Individual Rights In Education (FIRE), which she correctly characterizes as “a much more reliable advocate for the rights of all college students, regardless of ideology or religion.”