09/12/2014 05:34 pm ET Updated Nov 12, 2014

Standing Strong for Free Speech: A Response to Geoffrey Stone

Miroslaw Pieprzyk via Getty Images

In a recent post, Geoffrey Stone, a law professor from Chicago, claims that there is a rift between the current ACLU and the ACLU of several decades ago over whether campaign finance restrictions abridge free speech. He says there is such a rift.

There is no question that campaign finance restrictions have been used from the very beginning to restrict free speech. In the very first case, back in 1971, three elderly leftist peace activists were prosecuted under the then-new campaign finance law for publishing an ad condemning the Nixon Administration's bombing of Cambodia and praising those members of Congress who opposed the bombing. A classic example of free speech being restricted by the government it was criticizing? You bet. The government argued that the ad might affect the upcoming elections, and so must be restrained. The New York branch of the ACLU, which I directed at the time, represented the three activists, and got the restriction reversed.

The next year, the ACLU itself tried to run an ad in The New York Times, in an open letter to President Nixon, criticizing his stand on racial integration. Once again, campaign finance laws got in the way, and we needed to go into court and sue to vindicate our free speech rights.

Neither case in fact had anything to do with electoral campaigning, and the ACLU, by it's own policy, had never in its entire existence supported or opposed a candidate for elective office. But we did regularly criticize public officials, and would-be public officials, for views that we felt threatened civil liberties; indeed, that was the ACLU's purpose since it was founded in 1920, and remains so today, nearly 100 years later. But campaign finance zealots thought that such criticisms in an election year should be restricted, and the laws they succeeded in passing were used to do so. Fortunately, the ACLU invoked the First Amendment, and prevailed.

But it didn't end with those two cases. New versions of campaign finance laws kept being passed, and kept being used to restrict speech. They didn't make elections more fair, but they did restrict speech critical of elected officials. They restricted speech of tax protesters, abortion rights activists and many others. The ACLU represented many people and organizations in resisting these incursions on their free speech rights. Then in 1984, a presidential election year, the ACLU itself was cited by the Federal Election Commission and threatened with fines and other sanctions because we had criticized President Reagan for what we believed was his many violations of civil liberties. That was our job, of course, our organizational purpose, regardless of who was president and regardless of which political party was in office. And we did nothing in 1984 different in this respect than we had done in 1983 or any other prior year. But, said the campaign finance zealots, in an election year, such criticisms might affect the election, and thus had to be restricted by campaign finance laws, even though the ACLU had never in it's entire history supported or opposed a candidate for elective office. We backed the FEC down, but others were not so fortunate.

This sort of thing went on for many more years until the McCain-Feingold Act was passed, outlawing all such speech adjacent to elections by corporations and labor unions on radio or television. Of course, the ACLU was, and had long been, and still is, a corporation, and so it was effectively censored by this law -- as was Planned Parenthood and many other groups, right and left, like the National Rifle Association. And like Citizens United, a nonprofit cause organization, which like most organizations happened to be incorporated. If the ACLU, incorporated, had a First Amendment right to criticize Nixon and Reagan, why didn't Citizens United, incorporated, have the same First Amendment right to criticize Hillary Clinton? In the Citizens United case, the U.S. Supreme Court said it did, thereby protecting the ACLU and Planned Parenthood as well. Free speech restrictions are like poison gas: seems like a good idea when you have your hated targets in sight, but the wind has a way of shifting, and inevitably the restrictions intended for your enemies are blown back upon you. That is why, despite what most liberals have been led to believe, Citizens United was a great case for freedom of speech and the First Amendment right to criticize public officials.

But the Citizens United case enraged most liberals, who when they viewed the law's free speech restrictions, only saw the speech of their enemies, and imagined themselves as being able to select who would be targeted and who would not, when in fact liberals would be the last ones likely to be in a position to choose the targets of restrictions on free speech once such restrictions became permissible. To the contrary, once the power to restrict speech becomes permissible, we should all imagine how our worst enemies would choose to use such restrictions. For liberals, that means imagining the poison gas of free speech restrictions in the hands of people like Joe McCarthy, Richard Nixon, Ronald Reagan, Dick Cheney and, on a local level, Rudy Giuliani. You would have to be crazy to permit such restrictions by weakening the First Amendment, yet that is precisely what those who have proposed to reverse Citizens United by amending the Constitution have done.

Now comes Prof. Stone, a longtime civil libertarian and First Amendment advocate, to announce that he has changed his position, and now believes that the kinds of restrictions struck down in Citizens United should be restored and do not threaten free speech. He is badly mistaken.

If Citizens United were reversed, and the restrictions of McCain-Feingold restored, Fox News (a corporation exempt from the restrictions in the law), could without limit praise and support an anti-birth control candidate like Rick Perry, but Planned Parenthood couldn't buy time to respond.

And if the proposed Constitutional amendment to reverse Citizens United that just failed had passed, here are only a few of the acts of censorship that could have then occurred, because the First Amendment had been weakened, as listed by Laura Murphy, the current and longtime head of the ACLU's Washington Office:

1. Congress would be allowed to restrict the publication of Secretary Hillary Clinton's memoir Hard Choices were she to run for office;

2. Congress could criminalize a blog post on the Huffington Post by Gene Karpinski, president of the League of Conservation Voters, that accuses Senator Marco Rubio (R-FL) of being a "climate change denier";

3. Congress could regulate Public Citizen's website, which urges voters to contact their members of Congress in support of a constitutional amendment addressing Citizens United and the recent McCutcheon case, under the theory that it is, in effect, a sham issue communication in favor of the Democratic Party;

4. A state election agency, run by a corrupt patronage appointee, could use state law to limit speech by anti-corruption groups supporting reform;

5. A local sheriff running for reelection and facing vociferous public criticism for draconian immigration policies and prisoner abuse could use state campaign finance laws to harass and prosecute his own detractors;

6. A district attorney running for reelection could selectively prosecute political opponents using state campaign finance restrictions; and

7. Congress could pass a law regulating the ACLU's letter for noting that all 41 sponsors of this amendment, which the ACLU opposes, are Democrats (or independents who caucus with Democrats).

Now the good Prof. Stone is free to change his position and to support such results, or laws that make such results likely. And of course he is free to disagree with the ACLU. But what he ought not to do is mislead his readers by clearly implying, as his post does (even though as a longtime ACLU member, he knows it isn't true), that the new leadership has broken with the longstanding policy of the ACLU on this subject, as reflected by six of its former leaders. The implication is untrue, and, because he must know better, intellectually sloppy or dishonest. Here is what he says:

1. Referring to "the longstanding principles of the ACLU," Stone charges the ACLU's "current leadership" with having "lost sight of those principles."

2. "The current leadership [of the ACLU] is simply wrong," Stone says, while "the former leaders of the ACLU have it right."

3. "The current leadership of the ACLU takes a strong free speech position," Stone writes, while "the six individuals who led the ACLU from 1962 to 1993 endorse a rather different view."

4. And finally, Stone says, a "rift has developed between different generations of the ACLU's leadership over the ACLU's understanding of the First Amendment..." and "the ACLU's position on the constitutionality of campaign finance reform today."

Any reader unfamiliar with the ACLU's history and its leadership would be led by these assertions by Prof. Stone to believe that the new leadership of the ACLU has come in and turned the ACLU's policy on this subject upside down. In fact, nothing could be further from the truth, and Stone has cherry-picked facts and misrepresented history.

First of all, the two highest and longest tenured ACLU leaders from the previous generation are never mentioned by Stone. Both support current ACLU policy on this subject, and oppose the six former ACLU officials who "endorse a rather different view." One of them is me. I was the Executive Director of the New York Civil Liberties Union from 1970-78, and National ACLU Executive Director from 1978-2001, when I retired. My tenure leading the ACLU, and representing the Board's policies, embraced the entire period about which Stone opines. All of the six old-timers Stone mentions were my colleagues, and I hired and supervised a number of them.

The other high former official unmentioned by Stone is Nadine Strossen, who chaired the ACLU National Board of Directors from 1991 until she retired a few years ago, and was ACLU General Counsel and a member of the national Board for several years before that. She, like I, has for decades supported the ACLU's First Amendment-based opposition to the censorship provoked and enabled by campaign finance laws. This opposition is not an invention of current ACLU leadership, but rather a legacy of the prior generation of leadership, which the current leaders have largely continued, as Laura Murphy's strong response to Stone makes clear.

In contrast, most of the six former officials Stone approvingly cites who now disagree with the ACLU's policy on the First Amendment and campaign finance restrictions did not do so while they were ACLU officials, and one of them actually constructed the policy back in the early 70s, which now, many decades later, he has decided to oppose. And the most recent of the six former officials last worked for the ACLU more than 20 years ago, with three of the six having last been associated with the ACLU no more recently than 30 or more years ago.

Finally, contrary to what Prof. Stone implies, it is not the current leadership of the ACLU that has changed, but rather these six long ago officials, who now apparently march to different drummers. That is their right, of course, but to suggest, as Prof. Stone does, that this handful of long-ago leaders somehow represent the traditional ACLU policy on campaign finance driven restrictions on free speech, and that the current leadership is somehow an outlier on this issue, is a profound distortion of history and truth, and a disservice to the readers of The Huffington Post.