Photo: Charles E. Knoblock/AP Photo
In May 2022, roughly a year before he was removed from the board of directors of the American Civil Liberties Union of Florida, Michael Barfield saw what was coming.
For years, Barfield had been resisting what he describes as mission drift: a retreat by the nation’s premier free-speech organization from the viewpoint-neutral defense of civil liberties, which had long been its core mission, in favor of social-justice initiatives and an anti-Trump agenda.
The group’s new direction became unmistakable at the ACLU Biennial Leadership Conference in Los Angeles, where, according to Barfield, Anthony Romero, the longtime head of the organization, gave a State of the Union–style address.
“Anthony was talking about how marvelous things were,” said Barfield, “and he stops at one point during this and says something like, ‘Some of you here in this room will remember a time when there were some within this organization who opposed my vision, who opposed my views and my goals of moving this organization forward. And I want you to look around the room. Because you won’t see any of them here.’
“And there was a standing ovation,” continued Barfield, who counted himself among those who opposed Romero’s vision. “I was stunned at the ego, by the raw claim of power. I didn’t stand up and applaud. In fact, I was disgusted.” (While the ACLU did engage me on questions surrounding the organization’s mission, it declined to respond to any specific findings. “Given the challenges the nation will confront with a second Trump administration, we can’t afford to spend further bandwidth on efforts to rehash inaccurate characterizations of the ACLU,” said a spokesperson.)
Barfield is among a small group of people formerly aligned with the ACLU — generally left-leaning individuals committed to the causes of civil liberties and civil rights — who say the organization lost its way in recent years and who are urging a return to the former philosophy on protecting free speech and civil rights, which was famously blind to the speaker’s ideology or politics.
Free speech as a value has historically been the domain of the American left: In the 1950s, its archenemy was Republican senator Joseph McCarthy; Black civil-rights leaders saw it as essential to the success of their movement; and in 1988, Republican presidential candidate George H.W. Bush tarred his Democratic opponent, Michael Dukakis, as a “card-carrying member of the ACLU.” But over the past ten years, Donald Trump and other right-wing provocateurs have co-opted free-speech values to advance an agenda often at odds with liberalism and social justice (see Elon Musk’s X), while Democrats, progressives, and, arguably, the ACLU have retreated from the ideal that free speech needs to be protected regardless of the viewpoint being expressed. Barfield and those of similar mind think that retreat is shortsighted and, ultimately, dangerous.
Many of the ACLU’s critics cite the August 2017 Unite the Right rally in Charlottesville, Virginia, as a turning point. Defending free speech even when the speech itself is reprehensible had been a long-standing value of the ACLU. So it wasn’t out of character for the group’s Virginia chapter to sue for the right of white nationalists to hold their rally in a downtown park. The case was about the principle of the First Amendment, which bars the government from deciding what speech gets heard in public. The lawsuit was successful. But the Charlottesville rally wasn’t peaceful, culminating in white supremacist James Alex Fields Jr. crashing his Dodge Challenger into a group of anti-racist protesters, murdering Heather Heyer and injuring nearly 30 others.
The shocking violence in Charlottesville led roughly 200 ACLU staff members to write an open letter taking issue with their own organization. In response, the national ACLU did something it hadn’t done in nearly a century of existence: It effectively ended its viewpoint-neutral defense of free speech — going forward, the speaker’s viewpoint would matter. The organization drafted new case-selection guidelines stating that the ACLU would now consider “the potential effect on marginalized communities; the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values; and the structural and power inequalities in the community in which the speech will occur.”
To old-guard lefties like Barfield and others, this was antithetical to what they had always represented. In their view, if the ACLU makes a value judgment on the content of the speech it chooses to defend, the organization crosses the line from protecting civil liberties to becoming a progressive advocate. Political advocacy is a good thing, these critics say, but it rests on a bedrock of civil liberties.
The change didn’t go unnoticed. Floyd Abrams, arguably the nation’s leading First Amendment attorney, told the New York Times in 2021, “The last thing they should be thinking about in a case is which ideological side profits. The ACLU that used to exist would have said exactly the opposite.” In 2022, Lara Bazelon, the celebrated lawyer and criminal-justice reformer, wrote in The Atlantic, “The ACLU now seems largely unable or unwilling to uphold its core values.” And recently, Ira Glasser, the leader of the ACLU from 1978 to 2001, told me that the new case-selection guidelines were “the most fundamental departure from ACLU founding principles you could possibly have.”
“Free-speech restrictions are like poison gas,” said Glasser when we first spoke last winter, arguing that the ACLU’s failure to take a free-speech case is tantamount to approval of the restriction in the first place. “They seem like a terrific weapon when you’ve got the gas in your hands and you’ve got your particular target in sight. But the wind has a way of shifting, and when it does, it blows the restrictions back on you. That’s why the progressives have their heads up their asses. I know they’re freaked out about the strength of the right wing these days. I know they’re freaked out about Trump. I’m freaked out, too. But when you allow one power the power to decide who gets to speak, you are deciding that all power has that power. And it’s not gonna always be you or the people you like in power. That has been the entire history of this country. Anybody who’s a progressive or liberal, and whose position is that the government should get to decide who should speak, has to ask themself a single question: What are you going to do if Trump gets reelected?”
Of course, Glasser asked this rhetorical question before a plurality of Americans voted in November for Trump, who has, at times, shown an eagerness to ignore or trample on the First Amendment — think freedom of the press and the right to assemble and protest. Glasser, Barfield, and others said the ACLU’s partisan turn during the first Trump administration will undermine the group’s ability to hold Trump accountable in his second term in office.
The ACLU takes issue with the idea that it has become partisan. When I asked David Cole, who served as national legal director for the ACLU from 2017 until his departure in October of last year, if the ACLU had fundamentally changed its orientation, he was adamant that it had not. “In the wake of the 2016 election of Donald Trump, many people wanted to take action to defend civil liberties and civil rights,” Cole said. “And so we encouraged people to do so. But never did we say, ‘Go out and advocate for a Democrat and against a Republican.’ The ACLU is nonpartisan. But nonpartisan does not mean you are silent when the country is deciding on things that are going to have very significant consequences for civil rights and civil liberties.”
Critics say the organization is simply trying to downplay the very substantive changes it has undergone in recent years. Though when it comes to the question of when, exactly, those changes began, the answers vary. Glasser pointed to the early years of the tenure of Anthony Romero, who succeeded him in 2001 on the eve of the 9/11 attacks. (There were multiple scandals involving breaches of fundamental ACLU doctrine, he said, which were detailed in the press at the time, including in this magazine.)
Jamie (who spoke to me under an assumed name out of fear of backlash) worked at the national ACLU from the middle of the Obama presidency into the first Trump administration and was present during discussions about the new case-selection guidelines in the aftermath of Charlottesville. For Jamie, the turning point was 2015, when the ACLU took up the case of Gavin Grimm, a transgender student who sued the Gloucester County School Board in Virginia for barring him from using the boys’ bathroom. Everyone at the ACLU was onboard with representing Grimm, said Jamie, but the case marked a dramatic shift in the “tenor” in which legal arguments were made.
“There was major conflict around interpretation of the legal precedent on equal protections and applying them to things like locker rooms rather than just bathrooms,” said Jamie. “The senior lawyers were thinking that all-gender locker rooms went too far in infringing on rights for women to have separate spaces and provisions under Title IX. And the younger activist lawyers were saying, ‘Well, that means you don’t think trans girls are girls, and thus you’re denying our humanity.’ The activist lawyers wanted to blow it all out at once and were using a very heavy-handed ideological, anti-oppression lens at the same time. So it was a classic struggle between incrementalists — change the law a little at a time — and maximalist reformers.”
From that moment on, said Jamie, “it felt like if you disagreed with someone on a legal argument or a legal strategy, you were attacking them personally. The supervisors didn’t know how to deal with that.”
For Barfield, who began working as a legal consultant with the ACLU of Florida in the 1990s and served on its board for 17 years, the changes started in 2010 with the case of Terry Jones, an anti-Islamic right-wing activist and pastor of a small church in Gainesville, Florida. He made international headlines for threatening to burn a copy of the Quran in public. When a representative of the ACLU of Florida was quoted in the press saying Jones absolutely had the First Amendment right to burn the Quran, Barfield said, junior staffers were “apoplectic.”
“They said, ‘That’s not the kind of people we want to represent. We should get to pick and choose,’” said Barfield. “We responded by saying, ‘We don’t get to pick and choose. We’re not the referee when it comes to the First Amendment.’”
There were similar flare-ups that followed, according to Barfield, but he and others said it wasn’t until the election of Trump that this more activist direction became top-down policy at the ACLU. It started, they said, on the morning after Election Day 2016, when the ACLU posted a simple graphic on its home page: a picture of Trump with the words “We’ll see you in court.” This was followed by an open letter written by Romero himself, warning the new president-elect that if he followed through on many of his campaign promises, he would “have to contend with the full firepower of the ACLU at every step.”
Money came pouring in, crashing the organization’s donation website. By the Thursday morning after Election Day, the ACLU had raised $2.4 million from nearly 40,000 contributions. Trump’s Muslim ban in the first month of his presidency set off another fundraising bonanza: The ACLU raised $24 million from more than 350,000 online donors in just two days. By comparison, in all of 2015, the ACLU raised roughly $3.5 million in online donations.
Jamie said that during this same period, Romero had a call with John Podesta, chair of Hillary Clinton’s 2016 presidential campaign. Podesta had a list of Clinton campaign staffers, former Obama White House staffers, and Democratic Party operatives who were now out of work thanks to the Republican sweep. They were looking for a home from which they could further Democratic Party causes. Romero hired many of the people on Podesta’s list. (Podesta responded to New York’s request for comment by saying that he doesn’t remember the call specifically but that he does remember recommending several people who went on to hold positions at the ACLU.)
“But none of these people were free-speech absolutists,” said Jamie. “Some of them had really never worked in a place like the ACLU. Their cause wasn’t the First Amendment or civil liberties. Their cause was the Democratic Party.”
These newfound resources and energies, according to Jamie, took the form of People Power, the national ACLU’s new program for grassroots political organizing at the local level. Launched in March 2017, everyday Americans eager to join the “resistance” to Donald Trump could now organize and campaign for progressive causes through local Facebook groups under the banner of the ACLU.
In Florida, local People Power groups quickly formed throughout the state. According to Barfield, a primary feature of the People Power project was that the national ACLU could now bypass its state affiliates in its oversight of these grassroots organizers. In the months that followed the March 2017 launch, some People Power groups in the Sunshine State began running afoul of ACLU of Florida bylaws, nakedly campaigning for Democrats and against Republicans, calling for conservative journalists to be fired, and raising money for progressive groups and causes not related to civil liberties.
Barfield described the case of a Sarasota sheriff with whom he had an open line of communication. The sheriff had been complying with laws around the detention of undocumented immigrants, but in the intense political climate, he attracted the attention of local People Power groups. Barfield got a call from him.
“‘What’s going on with your ACLU?’ the sheriff had said. ‘I’ve got ten people with the ACLU insisting on meeting with me tomorrow,’” recalled Barfield. “So I go to the meeting, and this People Power group, none of whom I knew, presents the sheriff with a letter, demanding he sign on to a very stringent pro–immigrants’-rights pledge. And if he doesn’t sign on, they’ll spread the word about him. It was straight out of the national ACLU and Anthony Romero’s immigration unit.”
Barfield began taking his concerns to the ACLU’s national leadership, including with Romero. He warned of mission drift and informed national that its People Power program in Florida was in direct violation of the state affiliate’s bylaws and policies. According to Barfield, Romero responded, “‘Get onboard or get out of the way. This is not your grandfather’s ACLU.’ That’s exactly what he told me one time.”
Meanwhile, tensions between the board and staff at the Florida affiliate grew as staffers began joining the People Power groups themselves and engaging in partisan political activity. Perhaps the final straw in the deteriorating relationship between board and staff was a disagreement over the hiring of a new executive director in 2022. Staff were dismayed when the board ultimately recommended Tiffani Lennon, a white woman, over a Black woman for the job and relayed their displeasure to Barfield via an email from a staff liaison. Among the complaints:
There are grave concerns that [Lennon] exhibited “savior complex,” based on some of her comments about living in an immigrant community and wanting to make things better because she has adopted brown children. It seemed to staff that she does not feel that she is a part of these communities but that she is in a position to save POCs.
Barfield rejected the staff’s concerns about Lennon as “irresponsible.” Shortly thereafter, in August 2022, eight staff members filed a complaint against their board with the national ACLU, citing, among other complaints, a hostile work environment. Seven months later, the national ACLU removed the Florida affiliate’s board of directors, including Barfield. Lennon, the executive director accused of white saviorism, was pushed out.
“I’m convinced that the staff complaint was nothing short of an intentional coup orchestrated by national for our resistance against mission drift,” said Barfield, who, along with his fellow ousted board members, was never given a chance to view the evidence against them. In August 2023, several of them, including Barfield, filed a lawsuit in Florida state court claiming the national ACLU had no right to unilaterally remove them from their seats.
The irony, according to Ira Glasser, is that in his day, the primary cause for expulsion from the ACLU would be an abdication of its core mission of viewpoint-neutral defense of civil liberties. “If the allegations in Florida are true,” said Glasser, “then it’s a fundamental departure from core ACLU principles.”
When I asked Howard Simon, who recently served as the interim executive director of the ACLU of Florida, about the lawsuit, he dismissed it “as a complete cover for former disgruntled board members who were removed for their incompetent and dysfunctional leadership … The Florida affiliate was facing a $3.5 million debt and unsustainable budget deficits. We were in crisis. That’s the reason for their removal.” (Barfield disputes this claim. He showed me an “Interim Executive Director’s Report” stating that “Fiscal Year 2022 closed with unrestricted cash almost $2.2 million greater than the year-end forecast” and a report from the treasurer just weeks before the staff complaint showing that the Florida affiliate was nearly $3.8 million in the black.)
This past November, the lawsuit was settled out of court. The details of the settlement have not been disclosed other than the following statement: “The Parties have amicably resolved their dispute. Each recognizes the service by the former directors to ACLU-FL and ACLU-FL’s work at the center of some of the most important civil liberties battles in the United States.”
When I followed up with Barfield after the announcement, I instead received a call from a lawyer informing me that, as a condition of the settlement, Barfield could no longer speak to the press about the litigation with the ACLU.
Glasser, who recruited Romero to succeed him as the head of the ACLU, has deep regrets over that decision. “Anthony just never was a civil libertarian,” said Glasser. “He said he believed in it in 2001. He may have thought he believed in it, but basically he was a progressive liberal who was simply not prepared to advocate for civil liberties on a content-neutral basis. And I think after Trump got elected in 2016, he saw the dollar signs, you know, and it was opposition to Trump that was going to get you membership and donors and money. In retrospect, supporting Anthony to succeed me was a tragic mistake.”
Cole, who after eight years in ACLU leadership is now returning to Georgetown Law, objected to Glasser’s assessment. “We have continued, and will continue, to defend those with whom we disagree when their rights have been infringed upon, and that just hasn’t changed,” Cole told me. “And I see no evidence that we have shied away from that commitment … and all the evidence to the contrary.”
Since the new case-selection guidelines — which Cole himself authored — were created, the ACLU has defended the NRA, Christian fundamentalists, the right-wing provocateur Milo Yiannopoulos, and even Donald Trump, in relation to a judge’s gag order against him in the January 6 case. As recently as May of last year, the ACLU filed an amicus brief with the New Hampshire Supreme Court in support of a white-supremacist group that affixed a “Keep New England White” banner to a public-highway overpass.
When the ACLU’s critics do point to any evidence, said Cole, “it’s the case-selection guidelines, which, if anything, have only underscored our commitment to defending speech with which we disagree.” He pointed to page three of the document, which lays out the “considerable cost” of the ACLU declining to defend controversial speakers. “Those guidelines were meant to reassert that we continue to be committed to this,” said Cole. “We just now try to be more intentional about making sure that our eyes are wide open — that all considerations have been taken into account and that all views have been heard — before we take a case. And then, where we take a case that raises conflicting values, we think about how we can mitigate. So, for example, if we’re defending a white supremacist, can we double down on our racial-justice work? If we’re defending an anti-trans person, can we reach out to the trans groups in advance and explain why we’re doing what we’re doing? Can we publish something on our blog that says we hate what this person is saying, but we’re defending his right to say it? Which is what we did.”
While Cole was adamant that his staff had never opted out of a case owing to fear of controversy, other staunch defenders of the ACLU told me it was legitimate for the organization to refuse to defend speech deemed offensive by many of its left-leaning supporters. A former senior staff member at the Florida affiliate explained it this way: “I think that there are people within the ACLU who are pushing for us to be a little more thoughtful about how we use our limited money, time, and political capital — and answer the question of whether or not our involvement in a particular case is going to change the outcome. And I think that that has been a shift, but it is not a shift in values. It is not a shift in caring about the First Amendment. It’s just about looking at the broader context in which decisions are being made and how they can impact the other work that we’re doing.”
When I asked this former staffer if they thought today’s ACLU would still defend the right of neo-Nazis to march in Skokie, Illinois, the landmark ACLU case of 1977, they said “yes” but with a caveat: “When I was at the ACLU, sometimes people took it as a point of pride that the ACLU lost something like 25 percent of its membership in the wake of Skokie. And I think that what some people in the organization are saying is it’s not that we should not have represented the Nazis in Skokie; it’s that we need to figure out a way to provide people with the protection of the rights they’re entitled to — and doing it in a way where we’re preparing our people, preparing our supporters, contextualizing it so that we don’t lose 25 percent of our members. Because if you do, then you can’t continue doing the other critical civil-liberties work that the organization does.”
Kirk Bailey, who served as political director at the ACLU of Florida from October 2016 to July 2023, argued that there is truth in the depiction of the ACLU of the Trump era as prioritizing social-justice work over the viewpoint-neutral defense of civil liberties. But rather than viewing it as an evolution or a shift in priorities, he sees it as a return to form — a return to the core values that were established by the ACLU at its founding in 1920.
“When you look at the more comprehensive history of the ACLU, all the way back to our founding,” said Bailey, the group was fighting against “what was going on around immigration issues and discrimination against folks who might have socialist or communist backgrounds. And so I think for lots of the advocates that were coming in to the organization [around the time of the 2016 election], we were just returning to our values.”
One of the clearest indicators that something substantive did, indeed, change at the ACLU is the rise of a direct competitor.
At the same time Anthony Romero was giving his 2022 speech in Los Angeles, effectively claiming victory over the old guard of the ACLU, the Foundation for Individual Rights in Education, or FIRE, was gearing up for its June 2022 rebrand as the Foundation for Individual Rights and Expression. After more than 20 years focused on academic freedom, the name change signaled FIRE’s plan to expand its free-speech mission beyond college campuses. At the time of the announcement, Glasser was quick to make the connection, stating in a Politico article that the ACLU’s partisan turn toward social justice had “created a vacuum in the viewpoint-neutral defense of free speech, which FIRE has filled.”
FIRE’s intention is to be completely nonpartisan. There are some signs of success on that front: A survey of FIRE’s email subscribers found 28 percent identify as left-leaning, 32 percent as right-leaning, and the rest as “other.”
But FIRE is dogged by a sense on the left that it is suspiciously too friendly to conservatives. When you ask FIRE leadership, the majority of whom are left-leaning, where that perception comes from, they say it’s the result of having worked exclusively in the domain of the college campus from 1999 to 2022. With higher education dominated by progressives, FIRE’s clients have generally been conservative or heterodox professors and students who say their academic-freedom and free-speech rights have been denied.
Nevertheless, FIRE has shown up in court repeatedly defending the Students for Justice in Palestine and successfully sued Florida governor Ron DeSantis over his Stop WOKE Act. This month, FIRE announced that it will defend veteran Iowa pollster J. Ann Selzer against a lawsuit from President-elect Trump.
Still, the perception is real and was on full display last February at a congressional hearing on artificial intelligence and the First Amendment. FIRE president and CEO Greg Lukianoff (a lifelong Democrat) faced dismissive — and, at times, hostile — questioning from the Democratic lawmakers, who erroneously conflated his free-speech advocacy with some sort of affinity for Trump. Lukianoff was also dismayed that the Democratic side of the aisle had no apparent interest in addressing the potential First Amendment violation of the Biden White House pressuring Amazon to censor books about COVID-19 vaccines. “Debbie Wasserman Schultz, the Democratic congresswoman from Florida, at one point said, ‘We can imagine Donald Trump doing that,’” Lukianoff said. “And it’s like, Yes! Yes! That’s our point! You should care that the other guy could do this too. But by the way, you should also care about it when it’s your guy!”
Will Creeley, FIRE’s legal director, is the son of poet Robert Creeley, a friend and contemporary of Allen Ginsberg’s, and describes himself as a leftist. Given his personal politics and family history, I asked Creeley what he thought of how progressives today seem to regard the First Amendment and the conception of free speech with more suspicion than in the past.
Creeley pointed to a Department of Justice report in the wake of the 2015 killing of Freddie Gray by Baltimore police. The report detailed how Baltimore residents were routinely arrested for yelling obscenities at police officers, a First Amendment right affirmed by the 1987 Supreme Court decision Houston v. Hill. The same report detailed how the Baltimore Police Department’s policing tactics disproportionately targeted the city’s Black residents.
Creeley also pointed to polling done at the time, which showed that young Black students were less likely than their white peers to believe that they were protected by the First Amendment, especially freedom of assembly.
“And who can blame them when you see the response to Charlottesville compared to the response to Ferguson?” said Creeley. “But the answer is not to dismantle the First Amendment. Look at what would come in that vacuum: a police state. The answer is to educate, make everyone understand the right, and then to vindicate, to make those rights real.”
At the end of the day, said Creeley, “I look at the job as being an honest broker, kind of like being an ambulance driver in the culture wars. You just show up and do the job. I want to think of myself as a plumber: They don’t ask about your politics; they just fix the sink.”
When I spoke to Glasser after the November election, he said, “Whether you’re the ACLU or FIRE, if you’re going to hold Trump accountable when he exceeds the limits of his power, you cannot be in a position of being seen as anti-Trump or of having campaigned against him politically. Otherwise, you will have no credibility, and you will not be effective.”
