POTAS: The ACLU Has Lost Its Way


Friday, December 9, 2022

In 1978, a neo-Nazi group wanted to march through the village of Skokie, a Chicago suburb home to more than 5,000 Holocaust survivors. When Skokie took action to block their march, the neo-Nazis found aid from a seemingly unlikely source.

The American Civil Liberties Union took up the task of defending the neo-Nazi group, not because they agreed with their repulsive views, but because of their stalwart commitment to defend the first amendment. The decision was naturally met with widespread criticism, and even resulted in several resignations within the organization, but the ACLU stayed true to its unwavering belief in the freedom of speech. 

Fast forward to modern day, it’s almost unimaginable that the ACLU would take up such a case. The organization now uses its resources to aid the very people who want to stifle speech that some may find unpleasant, or even vile. Somewhere along the way, their commitment to free speech became separated from their commitment to social justice, when in reality the two issues are entirely intertwined. 

On Monday, the Supreme Court heard oral arguments for a case called 303 Creative v. Elennis, which concerns whether a Colorado non-discrimination statute can compel a web designer to create wedding websites for same-sex weddings, in violation of her personal beliefs. The ACLU filed an amicus brief in the case siding with Colorado, arguing that “​​There is no First Amendment right to discriminate.” 

But framing this case as a discrimination case, rather than a speech case, highlights the shift in the ACLU’s priorities. The case is about speech, and what constitutes speech, rather than about whether or not there is a right to discriminate. 

During oral arguments, lawyers representing 303 Creative made clear that their client would sell their products to gay customers, but not create custom websites for gay weddings. This distinction demonstrates clearly that 303 Creative is not discriminating based on the protected status of the customer, but rather preventing the use of their speech for a cause with which they disagree.

In 2018’s Masterpiece Cakeshop v. Colorado Civil Rights Commission, the ACLU made the very same argument. They argued that a baker could be compelled to create custom wedding cakes celebrating a gay wedding, in violation of his own vision of marriage. Once again, the ACLU ignored the fact that the baker did not refuse service to gay customers, offering to sell them a pre-made generic wedding cake, only that he would not use his speech to endorse a violation of his own personal beliefs. 

The ACLU of old would have come down on the side of 303 Creative and Masterpiece Cakeshop, acknowledging that governments cannot compel speech endorsing views with which the speaker disagrees, no matter how unsavory the speech is. Instead, the modern day iteration of the organization is advocating for the use of state power in order to stamp out dissenting views. No longer does the organization care about free speech, but rather advancing views that they agree with, without regard for the ramifications of the mechanism that gets them there. 

Thankfully, other organizations have filled the void. The Foundation For Individual Rights in Education (now Expression), for example, has recently expanded its scope from simply education to include all expression. However, free speech cause would surely benefit from the ACLU’s commitment, if only for the more than $50 million the organization raises annually. 

“If only popular ideas were protected, we wouldn’t need a First Amendment. History teaches that the first target of government repression is never the last,” reads the ACLU’s own website. Sadly, this idealistic motto has taken a backseat to the idea that speech can be stifled if it is sufficiently unpleasant. Hopefully, one day, the ACLU of old will return as a stalwart defender of our most foundational right, but I am not optimistic.

Dace Potas is the President of Lone Conservative. He previously served as an editor and columnist. He is a senior political science student at DePaul university. He has bylines in The College Fix and Just The News.

The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.

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About Dace Potas

Dace Potas is the President of Lone Conservative. He previously served as an editor and columnist. He is a senior political science student at DePaul university. He has bylines in The College Fix and Just The News.

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