[P]ursuant to the [case selection] guidelines, the ACLU will not take a case if the harm of the speech is deemed to outweigh the impact of suppressing it. Indeed the clear purpose of the new balancing test is ensuring that social justice concerns will sometimes outweigh First Amendment freedoms in selecting cases. That’s what’s new, and alarming to many free speech advocates.
[David] Cole insists that my critique of these guidelines amounts to a refusal to admit that speech can cause harm. Not so. Of course I believe that language has power, for better and worse. That’s partly why I’m a writer. But the presumed harms of speech—political, social, cultural, psychological, or sexual—are always the justifications for censoring it, and, as David Cole knows, civil libertarians define harms that might make speech subject to regulation extremely narrowly. They do not generally include the harm of speech that “denigrates … marginalized groups” or serves the interests of white supremacists. I realize, of course, that the new guidelines do not advocate government censorship of such speech. But they do make clear that, in many cases, the ACLU will decline to defend the rights of people who disseminate it. That’s what’s new.
Wendy Kaminer Replies on the ACLU and Free Speech via Volokh Conspiracy