Meet the ACLU’s Free-Speech Trojan Horse [updated]

“I’m what you’d call a true believer in the First Amendment,” Rowland announced. “It’s foundational.

I’ve criticized the staff attorney with the ACLU’s Speech, Privacy, and Technology Project before for giving up the First Amendment struggle too easily. So when I saw that she claims to be a true believer,1 I went to ACLU’s website to see what that once-great organization is doing with the untold millions it has gathered from the public

Friends, I’m here to tell you: It’s bad. It starts out good — universities shouldn’t have speech codes, more speech is the answer, “Defending First Amendment rights for the enemies of civil liberties and civil rights means defending it for you and me.”

Then it goes off the rails:

Q: Does the ACLU make a distinction between speech and conduct?

A: Yes. The ACLU believes that hate speech stops being just speech and becomes conduct when it targets a particular individual, and when it forms a pattern of behavior that interferes with a student’s ability to exercise his or her right to participate fully in the life of the university.

After quoting the Supreme Court’s Tinker description of particular conduct2 as “closely akin to pure speech,” the ACLU attempts to distinguish speech (protected) from conduct (unprotected). This is — as Tinker itself demonstrates — a false dichotomy.

Asking “Is it speech or is it conduct?” is like asking “is it a pet or a mammal?” (since much conduct is speech) or even “is it a dog or a mammal?” (since all speech is also ultimately conduct, the doing of something by somebody).

Moreover, there is nothing unprotected about speech that “targets a particular individual”3 and forms a pattern of behavior4 that interferes5 with a student’s ability to exercise his or her right6 to participate fully7 in the life of the university.8

When I say “nothing unprotected about,” I mean that the Supreme Court has never recognized as a category of unprotected speech anything like the speech described by the ACLU. And if speech does not fall into a recognized category of historically unprotected speech, it is (according to the Supreme Court) protected speech.

Granted that the Supreme Court has in the past recognized, and could in the future recognize, hitherto unrecognized categories of historically unprotected speech, should the ACLU be advocating for new categories?

Hell no.

Every newly recognized category makes speech less free. Speech is either protected or unprotected, so the more speech is unprotected, the less speech is free. Of course the ACLU — whose mission is “to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States” — should not advocate for new categories of unprotected speech, making speech less free.

Would the ACLU advocate for new categories of unprotected speech? That, I’m afraid, is a different matter.

The ACLU of Northern California writes:

But no matter how heinous the speech, the First Amendment protects everyone. To be clear, the constitution does not protect speech that directly incites violence or harasses individual students or community members.

Well, actually …

Of those categories of unprotected speech, harassment is not one. For harassment to become unprotected speech, the Supreme Court would have to recognize an additional category of unprotected speech, which would make speech less free.

C’mon Mark we shouldn’t be able to harass each other!

This is an argument that may seem good at first blush — we think of harassment as including only bad behavior. But existing harassment laws show us why we should be able to harass each other.

According to the Texas Legislature “harassment” includes sending repeated (that is, more than one) electronic communications (emails, texts, phone calls — anything using a wire or radio signal) in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

Let me repeat part of that, in case you missed it:

  • Annoy.
  • Embarrass.
  • Or offend.

If I send you two tweets and it annoys you, I am a criminal. That’s what you do if you make “harassment” a category of unprotected speech — you give bedpan legislatures and clownshoe appellate courts permission to put people in prison for being “annoying,” “embarrassing,” or “offensive.”

Does the ACLU want to do this?

Once upon a time the answer might have been an obvious “no.” But times have changed. Now the ACLU takes the official position that speech is unprotected if it “harasses” someone.9

When the state can put people in prison for offending other people, kiss the First Amendment goodbye. The state needs no other exception, because any speech worth a shit is offensive to someone.

Why would the American Civil Liberties Union advocate for the evisceration of your right to free speech?


Stay tuned.

[Update: ACLU National takes the same position: “On campus, if and when speech crosses the line into targeted harassment or threats or creates a pervasively hostile environment for vulnerable students, it isn’t protected.”

And if you’re wondering if California’s definition of harassment makes that position any less insidious, the answer is “no”:

“Harassment” is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.

So harassment includes a willful course of conduct that seriously annoys10 — but only if it reasonably causes substantially hurt feelings.


  1. You are the inheritor of a rich legacy of protecting speech. You damn well ought to be a true believer. 

  2. Not the armbands but the wearing of them. 

  3. Because it is about him or her? 

  4. Because it is repeated? 

  5. By annoying, offending, embarrassing, humiliating, or intimidating him, perhaps? 

  6. Where is this right found? 

  7. No adversity is allowed? 

  8. What does this even mean? 

  9. I just want to make sure you caught the part where “harassment” includes “annoying, embarrassing, or offending.” 

  10. Or harasses — the tautology is tautological. 


  1. “and that serves no legitimate purpose.” (Disclaimer: i understand that an attorney can argue nearly anything, and people in authority tend to interpret laws in ways convenient to themselves) Does this additional condition provide some protection for speech that is part of civic or political discourse? I wonder if you (or, more importantly, courts with jurisdiction over people with the power to arrest and prosecute) see a safe distinction between telling the mayor that he or she is a jerk (annoying) and telling the mayor that he or she is a jerk for advocating a position or enacting an ordinance (annoying, but part of civic dialog). My asking this question does not mean that I disagree with you — quite the opposite. I am as alarmed as you are.

  2. “and that serves no legitimate purpose”

    The state gets to decide what is a legitimate purposes. Criticize the governor who advocates for an increase in state’s attorney budgets? It is unlikely that could have any legitimate purpose.

    And remember, even if the jury acquits, it cost the state’s attorney nothing to bring it. He could bring it again next week, hopefully but not necessarily based on a different criticism, and there is little you can do about it.

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