More on the ACLU's Exclusion of Communists:

I asked Geof Stone to respond to my post defending the ACLU's exclusion of Communists from leadership roles and staff positions, and its statements that Communists, fascists, and others are unwelcome as members. (Geof is one of the scholars who criticized the exclusion, and whose criticism I was in turn criticizing.) Here's Geof's response:

Professor Volokh has, as always, offered a set of thoughtful observations on a difficult issue. As "the First Amendment scholar" referred to in the post, I thought it appropriate to add a few words.

Eugene's central point is that private organizations have no constitutional obligation to admit as members people they don't like. Of course, this is correct. The Constitution applies only to government. Yale University, Microsoft, and the Boy Scouts cannot violate anyone's constitutional rights.

Does this mean they act morally or wisely if they have a Jewish quota, or refuse to hire blacks, or exclude gay scoutmasters? Of course not. That these acts are not unconstitutional does not make them admirable, ethical, or defensible.

On the other hand, a private organization is not bound ethically to admit or employ all-comers. The Chicago Cubs don't have to let people who can't hit a baseball play shortstop (although they have long followed such a policy), and the Catholic church doesn't have to let Lutherans serve as priests.

The morality or wisdom of exclusionary decisions must turn on the nature of the private organization and the nature of the exclusion. I stand by my statement, quoted by Eugene, that the ACLU's decision to exclude "Communists" was a sign of "falter[ing]" in an "organization[] dedicated to the protection of civil liberties."

Certainly, the ACLU had every legal right to do what it did. But in doing what it did, it betrayed its own principles. The core principle it betrayed was that individuals should be judged on the basis of their actions rather than on the basis of their political or religious associations.

A fundamental problem during the anti-Communist witch hunt was defining a "Communist." Was a "Communist" someone who was currently a member of the Communist Party? Someone who had once been a member of the Communist Party? Someone who had been a member of an organization that had once been affiliated by the Communist Party? Someone who had once been a member of an organization that had once been supported by the Communist Party? Someone who had once attended a meeting of an organization that had once been affiliated with the Communist Party? Someone who had dated someone who had once been a member of the Communist Party?

Certainly, a private organization that adheres to certain core beliefs can ethically insist that its members support those beliefs. If the ACLU wished to insist on this, the proper approach for the ACLU would have been to focus on whether individuals supported the organization's core beliefs, rather than to focus on "Communism."

By allowing itself to be intimidated into sacrificing the principle that individuals should be judged on the basis of their actions rather than their political associations, the ACLU fell victim to the same hysteria of "guilt by association" that would infect the nation for the next two decades.

Perhaps other private organizations could act this way without violating their most fundamental values, but this was not the case for the ACLU. It had a responsibility to stand for a principle, and in this it faltered. Who knows, following Eugene's logic, perhaps members of the ACLU will someday soon demand that Muslims be excluded from its Board. I hope not.

I think my original post and Geof's suffice to lay out the arguments on both sides, but let me offer a brief reaction. The ACLU's rule as to the board and its staff was that the ACLU "regards it as inappropriate for any person to serve on the governing committees of the Union . . . or on its staff, who is a member of any organization which supports totalitarian dictatorship in any country, or who by his public declarations and connections indicates his support of such a principle." Its statement as to its members was that "The ACLU needs and welcomes the support of all those -- and only those -- whose devotion to civil liberties is not qualified by adherence to Communist, Fascist, KKK, or other totalitarian doctrine." The member statement thus, as I read it, doesn't focus on members' group memberships, but rather their views; the ACLU concluded, I think quite rightly, that those who adhere to Communist, Fascist, or KKK doctrine can't at the same time adequately support the organization's core beliefs.

The officers-and-staff statement did also ask whether people belong in certain organizations; but it seems to me that, where private organizations are concerned, judging people based on their political and religious associations can be quite proper. Membership in the Communist Party or the KKK doesn't tell you everything about a person's view, but it generally tells you something. We're not talking here just about past membership, or membership in a group that's supposedly allied with the bad groups; that may indeed be less telling. But if someone is currently a member of an organization that supports dictatorship (or racism), and works towards dictatorship (or greater racial prejudice), it seems to me that the ACLU can reasonably conclude that this person is pretty unlikely to be a committed ACLU officer or staffer. And outside who are judging a group may likewise think the less of the group because it has Communists or Klansmen among their officers.

I certainly hope that the ACLU won't exclude Muslims as officers, but that's because I suspect that many Muslims can be quite committed civil libertarians, much as many Jews are. The closer analogy is to the Catholic church excluding Muslims as bishops. Yes, you can imagine someone who is currently enrolled in a mosque but who would make a great Catholic bishop. It just isn't very likely. Nor is it likely that someone who is a member of the Communist Party or the Klan would do a good job of defending civil liberties.

I think you touched upon this point in one of your earlier comments. Part of the Communist agenda was to subvert legitimate organizations from the inside and use them to further the goals of Communism. Since no one is going to freely admit to having such an agenda, it sort of defeats the purpose if the ACLU needs iron-clad proof that an applicant's goal is to subvert the organization before it can refuse to hire them.
9.14.2005 2:33pm
I wonder how many committed Southern Baptists are in leadership roles at the ACLU, and if Stone would think the ACLU should hire them. Or for that matter Republicans.

When a group on the left isn't willing to exclude Communists out of respect for freedom of thought/diversity, it's a pretty safe bet the group would not have similar qualms about excluding fundamentalist Christians.
9.14.2005 2:48pm
Excellent follow up, Mr. Volokh.

There is an additional justification, which I don't think you have elucidated fully.

What the ACLU did was obviously a PR move, in what Stone believes was a time of "witch hunts" and "hysteria." He faults the ACLU for contributing to this hysteria. Putting aside the merits of Stone's criticism, Stone should ask is if the ACLU would exist today, or if it would be as strong as it is today if it would have followed his advice.

Though certainly Communists did not believe in the stated goals of the ACLU, there were many Communists in its membership, and even Communists in its leadership. In the late 1940's, that was looking worse and worse to the American people.

Even if the stated goals of Communism were not in opposition to the stated goals of the ACLU, it would still be palatable for the ACLU to exclude Communists on nothing more than moral grounds. Communism is immoral and we don't wish to be a part of it!

If that seems outlandish, consider this hypothetical I posed to a commenter in a previous related thread.

Hypothetical: A significant portion of the ACLU's membership is comprised of NAMBLA members. Even some in ACLU's leadership are NAMBLA members. Further, the public perceives the ACLU as a front for NAMBLA. Is the ACLU wrong if it excludes NAMBLA perverts from its organization? Stone would seem to think the answer is "yes." That is an odd answer, to say the least.

So not only does it make sense for the NAACP to exclude the KKK members (if that were perceived as a problem), it would be as justifiable to exclude the KKK from NRA membership, even though the NRA does not concern itself with matters of race. Of course, in both instances each organization sees little reason to take such a stance, but we all know the ACLU and Communism were, fairly or unfairly, associated as of the 1940's.

One more hypothetical: Let us say there is a charity group, which originally had some racists and KKK members in its membership and leadership. But today that organization has few KKK members and racists, but the public perception of the organization as racist persists. They decide to publicly condemn racism and the KKK, and exclude any avowed racists or known KKK members from both membership and leadership in the organization. Are they wrong, even though race relations are not part of the stated goal of the organization? Stone, again, would seem to think this sort of condemnation is unacceptable.

I think we should rejoice when poisonous idealogies receive public condemnation. We should similarly rejoice when organizations, especially those with perceived or real links with said idealogies, seek to distance themselves publicly and practically from those noxious beliefs.

Dare I say the real issue is whether or not one views Communism as worthy of condemnation in the first place?
9.14.2005 3:34pm
Richard Aubrey (mail):
Well, Challenge, communism certainly seems to have a bunch of exceptions made for it.

Being uncondemnable among The Right Sort of People isn't the only one.

Uncondemnable: Not copyright, use at discretion. RA.
9.14.2005 3:52pm
A small quibble with the term "Anti-Communist witch-hunt." This implies there were no Communists in the ACLU during the period (or, alternatively, that Communists do not exist, depending on your religious/analagous views). But isn't Mr. Stone's criticism that these people WERE Communists, but that fact shouldn't get them kicked out?
9.14.2005 7:32pm
Brian G (mail) (www):
And today, for example, those who oppose illegal immigration, think Justice Thomas is brilliant, and think the Boy Scouts have the right to pick and choose their leadership have no place in the ACLU. The Boy Scout part is especially ironic, considering the ACLU just canned one of theie members for being in the Minutemen.

Oh, and don't tell me the Minutemen are criminals. I haven't seen one of the arrested for anything. They are nothing more than a town watch.
9.15.2005 12:35pm