32 United States The EconomistFebruary 13th 2021
I
n the summerof 1964 a television repairman and Klansman
called Clarence Brandenburg invited a television reporter to join
him at a hooded rally in rural Ohio. The resultant footage of Bran-
denburg and other goons standing by a burning cross and vowing
to take “revengeance” against blacks and Jews landed him in jail
for inciting violence. He was sprung by the Supreme Court, after it
ruled that such a threat was too vague to abrogate his right to free
speech. That precedent—the court’s last word on inflammatory
language—was the nub of Donald Trump’s defence this week.
It was a poor legal argument, because an impeachment is not a
criminal trial, which makes the Brandenburg case barely relevant.
But it was a strong political one. Mr Trump is appealing to partisan
emotion, not reason. And a belief that the left hates free speech is
scripture on the Fox-magaright. Thus the war on political correct-
ness Mr Trump promised, when he dared to call Mexicans rapists
and Christmas merry. And he has since exacerbated this grievance
by characterising the two big social movements of his presidency,
#MeToo and Black Lives Matter, as twin prongs of a liberal conspir-
acy to stifle, or “cancel”, conservative voices.
“You’re not allowed to use the word “beautiful” anymore when
you talk about women,” was Mr Trump’s take on #MeToo. The blm
protests, he said, were intended “to silence dissent...to bully Amer-
icans into abandoning their values.” This ultra-politicisation of
civil liberties may be as ominous as anything he has done. Rights
subject to a partisan interpretation are not secure (never mind civ-
il). It is also especially threatening to the rights organisation that
would naturally hold the line against Mr Trump: the American Civ-
il Liberties Union, which defended Brandenburg and has been the
foremost defender of civil liberties for a century.
Left-leaning, though non-partisan, the acluhas traditionally
maintained its influence by suing the governments of both parties
in roughly equal measure. It sued George W. Bush’s administration
for torturing people, for example; and Barack Obama’s for killing
them with drones. This has not always convinced conservatives
that it had their backs. George H.W. Bush derided his Democratic
opponent, Michael Dukakis, as a “card-carrying member of the
aclu”. Yet such hostility was mainly a response to the organisa-
tion’s work on civil rights, which Republicans defined themselvesagainstlongbeforeMr Trump. And a related libertarian gripe, that
the aclu had been captured by minority interests to the cost of its
defence of civil liberties, has for the most part been unconvincing.
A cursory review of the centre-right press suggests this incen-
diary claim has been made, in much the same alarmist Bill-of-
Rights-going-to-the-dogs tone, since the 1980s. Meanwhile, aclu
lawyers have carried on defending the speech and assemblies of
Nazis—in Charlottesville three years ago just as among the Holo-
caust survivors of Skokie, Illinois, in 1978—as dutifully as ever.
Aryeh Neier, an admired acludirector of the 1970s (and himself a
Berlin-born fugitive from Nazism) says he sees no reduced com-
mitment on that score. The only significant evidence to the con-
trary—much tutted over by civil libertarians— appears to be a post-
Charlottesville determination by the aclu’s current director, An-
thony Romero, that the group should no longer help armed groups
hold rallies. That does not seem like a big worry.
Yet just because American liberties are in safer hands than
many claim does not make them invulnerable to new threats. Illib-
eralism is on the rise on the left as well as the right. Polls of college
students suggest they are more worried about offensive language
than free speech—“a serious cause of concern”, Mr Romero notes.
And the same woke spirit, increasingly evident in boardrooms and
newsrooms, has reached the aclu. The organisation’s transgender
activism elides sex and gender identity. Theaclu’s deputy director
for transgender justice suggested last year that a book hostile to
that unscientific view should be banned. He was tweeting in a per-
sonal capacity, Mr Romero notes, and an organisation dedicated to
free speech cannot object to that. Yet the aclu’s decades-old claim
that its work on civil rights and civil liberties are mutually rein-
forcing is under pressure.
Mr Romero acknowledges the tension. He admits to spending
more and more time arguing the case for classical civil liberties in-
side his organisation. In time, he suggests, the more woke ele-
ments of his staff will come to accept them: “Leadership matters”.
Maybe so. Yet politics as well as the culture are against it.
Theaclu’s long tradition of sticking it to both parties has been
a force for moderation inside the organisation as well as out. “If we
became the civil liberties wing of the Democratic Party we would
become irrelevant. It would be a death knell for civil rights and civ-
il liberties,” Mr Romero says. Yet the more profoundly illiberal drift
of the Republican Party has made it hard for the acluto maintain
its customary even-handedness. It sued Mr Trump’s administra-
tion over 400 times and advocated impeaching him twice. Thanks
to the gusher of money this elicited from approving liberals, it
meanwhile doubled in size. It would be odd if that surge, borne of
opposition to Mr Trump, had not moved it in a partisan direction.The shrinking middle
This is an illustration of the damage hyper-polarisation is doing
outside politics, to the civic fabric. Already endangered, non-par-
tisan organisations such as think-tanks, research groups and law
firms are, like the aclu, becoming increasingly aligned with the
ascendant left. The aclu’s unique history may also provide a use-
ful way to calibrate how worrying this development is. Decades of
overly pessimistic attacks on its values and institutional integrity
suggest they are stronger than the doomsayers allow. The defend-
ers of American rights are still mostly moderate and effective. The
liberal mainstream, by the same token, is probably less vulnerable
to illiberal groupthink than is claimed. Yet both are moving in that
new and worrying direction, and the endpoint is unclear. 7Lexington Speak easy
After decades of undue pessimism, civil libertarians should be moderately concerned