Leaked anti-gun memo suggests ACLU hesitant to defend free speech if it hurts 'marginalized communities'

The American Civil Liberties Union doesn't seem to be as interested in defending the First Amendment when it might hurt "marginalized communities" or enable protesters to openly carry weapons, according to a leaked internal memo.

In secretive guidelines that were revealed this week in a Wall Street Journal opinion piece by former ACLU board member Wendy Kaminer, the liberal organization initially claimed it wanted to advance "neutral principles" that protect speech "irrespective of the political speaker's particular political views."

The memo, which was marked "confidential attorney client work product," went on to outline numerous "considerations" that sharply qualified the ACLU's supposedly neutral commitment to free speech.

For example, the guidelines stated that "weapons can be intimidating and inimical to the free exchange of ideas."

The ACLU "generally will not represent protesters who seek to march while armed," the memo flatly declared -- claiming the restriction actually was unbiased, because it applied "without regard to a speaker's political views."


And the leaked document said the organization needed to consider the effect of speech on "marginalized communities" and "the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contary to our values."

White supremacist-affiliated protesters gathered in Virginia in 2007, touching off international outrage.

White supremacist-affiliated protesters gathered in Virginia in 2007, touching off international outrage. (AP)

ACLU legal director David Cole responded to Fox News when asked about Kaminer's article.

"We will continue to defend the speech rights of the unpopular, whether we agree with them or not," Cole wrote. "Ms. Kaminer’s concerns are refuted not only by the very document she cites, but by the ACLU’s actions in continuing to defend those who express views contrary to our own.

"At this moment," Cole added, "we are representing the outspoken anti-LGBT advocate Milo Yiannopoulos and a student group in San Diego penalized for publishing a satire of 'safe spaces' that some students and faculty deemed offensive. We have defended the rights of anti-choice advocates, homophobic Westboro Baptist Church picketers, and of the Washington Redskins to trademark a name offensive to many Native Americans. "

But according to Kaminer, who leaked the memo and penned the blistering op-ed about its contents, the ACLU was trying to get away with secretly backpedaling on its founding principles.

"Weapons can be intimidating and inimical to the free exchange of ideas."

— Leaked internal ACLU memo

She cited the seminal 1969 Supreme Court case Brandenburg v. Ohio, in which the ACLU took on the case of a Ku Klux Klan leader who was prosecuted for calling for "revenge" against Jewish and black people.

The high court ultimately ruled it was unconstitutional to prosecute him without showing he was inciting the crowd to commit an imminent illegal act.

"The ACLU would be hard pressed to take Brandenburg's case today, given its new guidelines," Kaminer wrote.

"Traditional free-speech values do not appeal to the ACLU's increasingly partisan progressive constituency -- especially after the 2017 white-supremacist rally in Charlottesville," Kaminer added.

The Virginia ACLU took on the case of the white supremacists when the city told them they didn't have the right to assemble without a permit.

But after the death of a counter-protester at the rally caused international outrage, some critics said the ACLU had blood on its hands, and a leader of the organization in Virginia resigned.

The furor set off soul-searching inside the ACLU and an announcement that it would no longer stand with hate groups aiming to march with guns.

The Associated Press contributed to this report.

Editor's Note: This article has been updated to include the ACLU's response.