The Ongoing Death of Free Speech: Prominent ACLU Lawyer Cheers
Suppression of a New Book
Free speech has always been more than a Constitutional guarantee: it's also a
crucial societal value. And it's more imperiled than ever.
Glenn Greenwald
Nov 15
In May of 2019, a source in Brazil provided me with a massive archive of secret
documents downloaded from the telephones of powerful Brazilian officials that
consumed the next year of my life while reporting it (a new Wired article
published on Friday tells part of that story). One of the effects of the
ensuing intense controversies was that I was unable to finish an article I had
been working on for months at the time: a lengthy, deeply reported examination
of the internal war engulfing the ACLU, fueled by a raging conflict between its
more traditional lawyers who still believe in the primacy of free speech and
the need to defend it and the newer political liberal activists and lawyers who
do not.
Among the people I interviewed was the organization’s long-time Executive
Director, Anthony Romero, who was forced to navigate the post-Charlottesville
controversy with a series of increasingly confusing statements designed to
appease not only internal anger over the defense by ACLU lawyers of the right
of white supremacists to march (after one killed a protesters with his car) but
also internal rage that ACLU lawyers took that free speech case. Romero
insisted to me that the ACLU had not retreated from its historic commitment to
free speech nor its resolve to avoid partisan politics despite a series of
post-Charottesville memos and a highly-funded election campaign that certainly
gave the opposite appearance.
Numerous ACLU staffers told me that one of the most vocal and effective
advocates for a more “nunaced” free speech approach was Chase Strangio, the
ACLU’s Deputy Director for Transgender Justice of its LGBT & HIV Project, who I
also interviewed. I knew Strangio as an excellent lawyer who earned my
admiration from his years of dedication representing WikiLeaks whistleblower
Chelsea Manning, and I joined him once at the ACLU headquarters for a
videotaped discussion of that case. A measure of Strangio’s massive influence
is his inclusion in this year’s TIME 100 list, with a tribute from actress
Laverne Cox.
LOS ANGELES, CALIFORNIA - SEPTEMBER 22: Laverne Cox (L) and Chase Strangio
attend the 71st Emmy Awards at Microsoft Theater on September 22, 2019 in Los
Angeles, California. (Photo by John Shearer/Getty Images)
My interview with Strangio was too long ago for me to comfortably summarize it,
but suffice to say there was no question that his views on free speech are
sharply divergent from those that caused me to regard ACLU lawyers and their
free speech absolutism as among my childhood heroes. If you want to hear
reasons why the ACLU should be more reluctant to represent the free speech
rights of “dangerous” extremists and why free speech should give way to other,
more important values — views I vehemently reject — Strangio is about the most
thoughtful advocate I’ve heard in defense of that position.
On Friday, Strangio’s very un-ACLU-like views of free speech were on full
display. On Friday morning, Abigail Shrier — author of a new book exploring the
rapid, massive increase in teenage girls self-identifying as trans boys and
undergoing permanent gender reassignment therapies and surgeries in their teens
— published an article in Quillette describing the extraordinary efforts by
major corporations and various activists to prevent her book from being
purchased:
The efforts to block my reporting have been legion, starting with staff threats
at a publishing house, which quickly reversed its original intention to publish
my book. Once I obtained a stalwart publisher, Regnery, Amazon refused to allow
that company’s sales team to sponsor ads on its site. (Amazon allows sponsored
ads for books that uncritically celebrate medical transition for teenagers)….
Because the book tackles an interesting phenomenon, a number of established
journalists wanted to review it….[T]he issue has created surprising bedfellows.
Religious conservatives are concerned about the trend—but so are lesbians, who
look upon the shocking numbers of teen girls transitioning with abject alarm.
Many suspect that all this transitioning of girls is effectively euthanizing a
generation of young lesbians….In any case, every major newspaper and legacy
magazine summarily turned interested journalists down.
The recent protest by Spotify employees over Joe Rogan’s podcast was triggered
in large part by his decision to invite Shrier onto his program. Many liberal
employees inside the streaming service demanded this episode be removed. “Many
LGBTQAI+/ally Spotifiers feel unwelcome and alienated because of leadership's
response in [Rogan’s] conversations,” was one of the questions posed to
Spotify’s CEO at a tense staff-wide meeting, along with a demand to know why
that program had not been deleted from the platform.
Note that was is being discussed here are not efforts to criticize or protest
Shrier and her book. Nobody disputes such criticisms would be appropriate. It
is much more extreme than that: an effort to prevent others from hearing her
views in her book — i.e., censorship: not state censorship, but corporate
censorship.
After various commentators noted Shrier’s article, the ACLU’s Strangio stepped
forward to say that he not only agreed that the book was inaccurate and harmful
— which he obviously has every right to believe — but that he supported and
championed the efforts to stop its circulation:
It is nothing short of horrifying, but sadly also completely unsurprising, to
see an ACLU lawyer proclaim his devotion to “stopping the circulation of [a]
book” because he regards its ideas as wrong and dangerous. There are, always
have been, and always will be people who want to stop books from being
circulated: by banning them, burning them, pressuring publishing houses to
rescind publishing contracts or demanding corporations refuse to sell them. But
why would someone with such censorious attitudes, with a goal of suppressing
ideas with which they disagree, possible choose to go to work for the ACLU of
all places?
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Sometime on Friday, Strangio deleted that second tweet without comment, and
then noted he was locking his account. In response to a series of questions I
sent Strangio about his position, he told me that he had read the book over the
summertime and found it repellent. He said he deleted the tweet because “ there
were relentless calls to have me fired, which I found exhausting as I was
navigating work and childcare” and “it was supposed to be a cheeky response to
Bari [Weiss] not something to be taken on its own terms without that context.”
He told me, however, that the book is dangerous:
The book and the arguments contained within it are fueling a wave of bills in
state legislatures to criminalize health care for trans youth including through
felony bans on the provision of care and forced outing of trans youth by school
officials (an actual serious First Amendment concern).
Strangio emphasized that “I am not speaking for the ACLU nor do I have the ACLU
in my Twitter bio” and, despite this tweet, insists that he “never advocated
with an entity to ban a book.”
It is important to note that Strangio’s views are mostly definitely not shared
by everyone at the ACLU. Many of the group’s more traditional free speech
advocates still prioritize its civil liberties principles over liberal politics
and liberal political causes. As I noted when I defended the organization in
2017 for its free speech representation in Charlottesville, the ACLU has
defended Milo Yiannopolous against the Washington Metropolitan Area Transit
Authority’s refusal to allow ads for his book, and this year publicly defended
the National Rifle Association against the efforts by New York State General
Letitia James to disband it.
Wall Street Journal Op-Ed by ACLU National Legal Director David Cole, Aug. 26,
2020
But for numerous reasons, the ACLU — still with some noble and steadfast
dissenters — is fast transforming into a standard liberal activist group at the
expense of the free speech and due process principles it once existed to
defend. Those reasons include changing cultural mores, an abandonment by
millennials and Gen Z activists of the long-standing leftist belief in free
speech and replaced by demands that views they dislike be silenced (which in
turn causes Gen X and Boomer managers and editors fearful of losing their jobs
or being vilified to succumb to this authoritarianism); and a massive influx of
#Resistance cash donated to the ACLU not in the name of civil liberties but
stopping Trump and the Republicans, much of which was used for political rather
than legal staff-building.
Last month, I spoke by video with Ira Glasser, the Executive Director of the
ACLU from 1978-2001. Glasser is an old-school civil libertarian who, in that
interview, articulated one of the most compelling and persuasive cases for why
censorious liberals are not only unethical but incredibly self-defeating. One
of Glasser’s first challenges in his new position back then — examined in a
great new documentary on the ACLU and civil liberties called “Mighty Ira” — was
managing the fallout from the ACLU’s 1978 defense of the right of neo-Nazis to
march through Skokie, Illinois, despite the presence of a large group of
residents who were not only Jewish but Holocaust survivors.
Glasser is not only adamant to this day about the absolute rightness of that
position — emphasizing that both Jewish leftism and African-American civil
rights activism had a long tradition of supporting free speech absolutism based
on the knowledge that censorship precedents would eventually be turned against
them — but he has also harshly criticized the modern-day iteration of the ACLU.
In an interview earlier this year, Glasser said that “The ACLU would not take
the Skokie case today,” adding that current Executive Director is “pandering to
what he thinks his new constituency wants to hear.… They’ve been socialised
into a different ACLU.”
I’m not sure that’s entirely true: I know several ACLU lawyers as devoted as
ever to free speech principles. But there have been all sorts of signs from the
ACLU — from cheering a French law that criminalizes catcalling to defending the
reduction of due process protections for college students accused of sexual
assault — that strongly suggest the emergence of liberal political activism at
the expense of traditional civil liberties. In sum, the ACLU is being pulled
and weighted down by the same censorious trends currently plaguing academia,
the corporate world and — most dangerously — news organizations.
________________________________________
Because I have not read Spier’s book, I have no opinion whatsoever on the
argument it makes, though I did watch her Rogan appearance and Megyn Kelly
interview and found several questions she raised to be reasonable and worthy of
further examination. I confess to an instinctive discomfort with the book’s
title — “Irreversible Damage: The Transgender Craze Seducing Our Daughters” —
as redolent of the destructive trope long used against gay men as predators
seeking to recruit and “seduce” children into the becoming gay. And I know that
the legal and cultural assault on trans people is very real, and fervently
believe trans people have the absolute right to full legal protection of and
respect for their identities (Spier herself has repeatedly said she also
believes this: “I fully support medical transition for mature adults,” she
wrote in her Quillette article).
But the question of whether young teens are being misdiagnosed with gender
dysphoria, and at what age they are capable of making choices to permanently
alter their bodies and identities, is of course a question society is exploring
and should be able to explore in good faith without being demonized as bigots.
Every significant social reform requires persuasion, which in turn requires
debate and discussion to induce people to change how they think rather than
badger and threaten and coerce them into doing so.
When I was on Joe Rogan’s program three weeks ago, I told the story of a dinner
I had in 2019 with two respected journalists who both have teenaged daughters,
one dating a 17-year-old trans boy and the other whose best friend is a
15-year-old trans boy. Both have had surgery to remove their breasts.
These are leftist journalists are fanatically pro-LGBT and trans rights but
wondered, as parents of teenagers, at what age a child is emotionally and
psychologically capable of making those choices. It was a fascinating and
thought-provoking discussion but once which, I realized afterward, they would
never be willing to express in a column or interview for fear of having their
reputations destroyed. That is a toxic and deeply unhealthy climate.
________________________________________
Most of this censorious mentality stems from the warped proposition that ideas
with which ones disagrees are not just misguided but “dangerous” and even
“fatal.” We so often hear now that views disliked by some people put them “in
danger” and “literally kill.” Recall the creepily unified script of New York
Times reporters in response to the Tom Cotton op-ed that resulted in the firing
of Op-Ed Page Editor James Bennet for the crime of publishing it: “Running this
puts Black @NYTimes staff in danger,” they intoned.
When Matt Yglesias — who just announced his resignation from Vox yesterday to
head to Substack in part because of the constraints imposed on his ability to
speak freely — signed the Harper’s Letter protesting “cancel culture,” a
colleague of his, the trans film critic Emily VanDerWerff, publicly accused him
of endangering her safety. The Harper’s letter, she proclaimed to Yglesias’
bosses, “ideally would not have been signed by anyone at Vox” because “his
signature on the letter makes me feel less safe at Vox.”
Emily VanDerWerff 🙋♀ @emilyvdw
I sent a version of this to the editors of Vox. (I have redacted some bits that
are internal to Vox and shouldn’t be aired publicly.)
July 7th 2020
1,861 Retweets16,686 Likes
That speech is “dangerous” and “incites violence” and therefore must be stifled
has been the cry of censors for centuries. It is the claim used to try to
silence Communists during the Cold War, Muslims during the War on Terror, and
pro-Palestinian activists now.
And (as I recounted in an article long ago about the effort to criminalize
speech in the name of the War on Terror), it is the claim rejected by the U.S.
Supreme Court in two landmark rulings: its unanimous 1969 decision in
Brandenburg v. Ohio, which overturned the criminal conviction of a KKK leader
who had used a speech to threaten violence against political officials, and the
1982 ruling in Claiborne v NAACP, also unanimous, in which the Court held that
First Amendment bars imposing liability on someone for the criminal acts
allegedly "inspired" by their speech (that ruling protected NAACP officials
from attempts by the State of Mississippi to hold them liable for the violent
acts their fiery speeches in favor of boycotts allegedly incited).
And now, this same pro-censorship mentality is finding expression not only in
calls for the state and Silicon Valley giants to suppress speech deemed
upsetting and dangerous (censorship that will inevitably falls harshly if not
disproportionately on leftists and the marginalized), but also disguising
itself under the deceitful banner of Human Resources workplace complaints and
union activism. An overlooked section of a Ben Smith column in The New York
Times from June described how The Intercept Union’s “Diversity Committee”
explicitly demanded curbs on free speech whenever, in their unilateral
estimation, such free expression conflicted with political activism they value
more — a call that is now commonplace on campuses, in corporate offices, and in
newsrooms across the country:
It is true that workplace censorship does not implicate state censorship, just
as it is true that increasing calls for Silicon Valley to exert greater control
over our discourse does not implicate the First Amendment (although it might
if, as seems likely soon, a Biden/Harris presidential administration pressures
tech giants to suppress their critics’ speech).
But it takes little imagination to see that that are other forms of censorship
besides state censorship. Corporate censorship is one; workplace and cultural
censorship are others. Free speech is a constitution and legal doctrine, but
it’s also a cultural norm and societal value. That has been true ever since the
Enlightenment, at least.
Those who doubt the existence of private-sector censorship should imagine a
scenario in which Facebook, Google and Twitter all unite tomorrow to announce:
Henceforth, no criticisms of the Republican Party or GOP politicians shall be
permitted on our platforms; criticisms of Democrats will still be permitted and
spread through heightened algorithms, no matter how harsh or angry.
Few would doubt that free speech values would be severely implicated by such a
united policy change from tech giants — regardless of whether one agrees with
the recent report from the Democratic-led House Subcommittee concluding that
Facebook and Google are classic monopolies.
That censorship occurs not only by state action but also cultural and societal
coercion has often been explicitly stated by the ACLU itself. That’s why the
civil liberties group has referred to Facebook’s banning of offensive speech as
“censorship” (“If Facebook gives itself broader censorship powers, it will
inevitably take down important speech and silence already marginalized voices,”
the ACLU warned). That censorship includes private-actor suppression is also
prominently emphasized on its page aptly entitled “What is Censorship”?
That’s what made it so jarring to see an ACLU lawyer — indeed, the group’s most
celebrated and popular lawyer —cheering the corporate and cultural repression
of a book whose ideas he dislikes. While I believe Strangio’s explanation to me
that he did not intend to call on Target and other stores to cease selling the
book, as it certainly appeared he was doing, that even ACLU lawyers have the
instinct, the reflex, to endorse this sort of suppression impulse illustrates
how imperiled, across all societal sectors, this indispensable value of free
discourse has become.
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