ACLU’s New Guidelines for Taking Cases Elevate ‘Values,’ Downplay the Constitution

By Rachel Alexander Published on July 25, 2018

The ACLU won’t look to the Constitution to determine what rights to defend. A leaked memo gives the group’s revised criteria for accepting new legal cases. It lists certain competing “interests” and attempts to weigh them against each other. It calls this a “tension between our values.” It also refers to it as “conflicts between its values and priorities.”

What Does This Mean? Why Do It?

What does this mean? The memo admits that “work to advance equality may create tensions with speech and religious liberty.” True. But equality isn’t an overt Constitutional right. The freedom of speech and religion are. Nevertheless, the ACLU gives weight to its “values” over the Bill of Rights. In the same way, the ACLU admits that free speech may also “raise tensions” with “racial justice” and “reproductive freedom.”

Why not just defend the Constitution, as the ACLU was founded to do? After all, its own website declares the group works to “defend and preserve the individual rights and liberties guaranteed to all people in this country by the Constitution and laws of the United States.”

The ACLU doesn’t say that it will defend all rights. They won’t defend the Second Amendment.

They mean by that something more than the Constitution and laws actually say. The almost 100-year-old activist group declares it will fight “bigotry and oppression” against “marginalized groups.” Among those groups are LGBT individuals and women seeking to abort their children.

What This Means in Practice

And what does this mean in practice? Some rights are more important than others. Working “to advance equality” is a code for forcing Christian businesses to provide services to same-sex weddings, letting the state override their First Amendment freedoms.

The guidelines say the ACLU is committed to a “wide range of rights.” This is notable for what it doesn’t say. It doesn’t say that the ACLU is committed to all rights. The ACLU subordinates the First Amendment to its own “values.” It ignores the Second Amendment. It mostly ignores the Tenth Amendment.

The leaked guidelines begin: “The ACLU is the premier defender of the Bill of Rights.” Benny Huang, writing for, observes that the ACLU “can have the Constitution or it can have its agenda, but it can’t have both.”

White Supremacists on the Right

The ACLU explains the reason for the guidelines is the white supremacist protest in Charlottesville, Virginia, in August 2017. It was forced to decide whether to defend the free speech of hard-core racists and neo-Nazis. There, the ACLU sued the city to allow the protests to take place at a large downtown park.

Nevertheless, the case raised a “potential conflict.” On the one hand, the ACLU says that free speech rights extend to everyone, including white supremacists. On the other, it says their speech runs directly counter to the democratic values the ACLU believes. It does not say outright how to resolve this conflict.

The memo appears written to give the group wiggle room to decline to represent racists and other people whose views the ACLU rejects. It includes plenty of language like “The guidelines do not seek to resolve the conflicts.”

The ACLU’s Easy Way Out

The ACLU’s guidelines list 14 “General Selection Case Criteria.” Many of them seem drafted in order to give the ACLU an easy out on taking the types of cases it doesn’t prefer. For example, No. 12, that seems to be a reason to decline cases. It says: “The potential harm to important relationships and ACLU standing with judges, cooperating counsel, and other members of the community, both from taking the case and from declining the case.”

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The ACLU doesn’t even follow its own guidelines. It says it will not represent someone who seeks to engage in or promote violence. The radical leftist group Antifa commits violence. Yet the ACLU represents them.

Another guideline says to avoid representing protesters who carry weapons. Antifa carries knives, brass knuckles, axes, crowbars and more deadly objects. An ACLU field director recently defended Antifa’s methods. He glossed over the violence. “It really is going to take a diversity of skills and tactics.”

If there’s one thing that’s consistent about the new guidelines, it’s that they continue to reflect the ACLU’s downplaying of the Constitution, and its promotion of other “values” over the truly Constitutional rights. This time it’s been caught in writing.


Follow Rachel on Twitter at Rach_IC

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