ACLU's Internal Disagreements

The New York Times had an article yesterday about the ACLU board literally debating over their own right to disagree with the rest of the board. They are debating over two proposed rules for the board. The first one would say that "a director may publicly disagree with an A.C.L.U. policy position, but may not criticize the A.C.L.U. board and staff." The second one would say that "Where an individual director disagrees with a board position on matters of civil liberties policy, the director should refrain from publicly highlighting the fact of such disagreement." I've written about this before and I am firmly on the side of those who oppose such rules. The first policy is better than the second, but I would oppose both if I was on the board.

Having said that, it will hardly come as a surprise that the folks at STACLU have taken their criticism of these proposals entirely too far, mostly because of their ignorance of the law. Regardless of whether one agrees or disagrees with those proposals, there is no question that the ACLU, as a private organization, has every legal right to pass them. It's okay to accuse them of hypocrisy, but only in the sense that these proposals violate the spirit of free speech, not the letter of the law. The first amendment limits what governments can do, not what private organizations can do.

No one has a "right" to be on the ACLU board and if you want to be on the board, you must accept the board's rules - rules that they vote on themselves. Thus, one can be intellectually consistent in supporting both the first amendment's restrictions on government and the right of private groups to set their own rules for membership. These policies should be opposed not on legal grounds but on the grounds that they send the wrong message, they violate the spirit of the ACLU's stated commitment to maximum freedom. And on practical grounds, I maintain that it is a good thing for the ACLU's directors to air their disputes in public so that the public understands that it's not a monolithic organization (and it's certainly not). So when Jay at STACLU writes:

The public has a right to know about conflicting issues in an organization that so powerfully effects the decisions of courts and reach down into all of our lives.

He is flat wrong. The ACLU is a private association. The public has no more right to know about conflicts between their board of directors than they have a right to know what is said at board meetings of a private golf club or at meetings of the He-Man Woman Hater's Club (anyone who gets that reference is showing their age). Such rules against public disagreement are in place for millions of such organizations in this country and there is nothing the least bit illegal about them. Does Jay think that if a partner at a law firm kept publicly criticizing that firm, he would remain a partner for long? It may be more hypocritical for the ACLU to have such a policy, but that doesn't make it any more a legal question or one that bears on the public's right to know anything.

You gotta hand it to STACLU. Even when they've got an entirely legitimate issue on which to criticize the ACLU, they have to go further and exaggerate it out of all proportion.