Glenn Greenwald
The American writer, lawyer and journalist, Glenn Greenwald at the Tivoli Mofarrej Hotel in Sao Paulo, at the opening of the 25th International Seminar of Criminal Sciences, on August 27, 2019. (Suamy Beydoun / AGIF via AP)

Should transgender children have the right to go to school without suffering discrimination? Or should teachers have the right to discriminate against them? The most prominent organization advocating for civil liberties, the American Civil Liberties Union, has sided with transgender children. The most famous civil libertarian professional commentator, Glenn Greenwald, has sided with the teachers who are asking for the power to discriminate.

Following a new statewide law directing school boards to meet or exceed state education department standards regarding the treatment of transgender students, Virginia’s Loudoun County school board enacted a policy requiring teachers to use students’ preferred pronouns. One teacher quit in protest during an August school board meeting because the school “promotes political ideologies that do not square with who I am as a believer in Christ.” Three other teachers have filed a lawsuit in state court demanding that the school policy be rescinded.

After the ACLU’s Virginia chapter defended the school policy in a legal brief, Greenwald, who rose to fame as a strong critic of government surveillance and as a recipient of the Edward Snowden leaks, wrote on Twitter, “This is the first time, at least to my knowledge, that [the] ACLU is explicitly arguing in court that the First Amendment’s free speech clause has been interpreted *too broadly* by courts, and are advocating *a more restrictive view* of what free speech means. The ACLU was a crucial influence on my political and legal outlook in childhood and early adulthood. There have been many valid criticisms of them as they changed—including from its former leaders—but to see them explicitly urging more free speech restrictions is shocking.”

Greenwald’s tolerance for shock is much higher whenever he appears with Tucker Carlson on Fox News. But what’s shocking to me is his baseless maligning of the ACLU.

The ACLU of Virginia’s brief does not argue that the courts have interpreted free speech too broadly, despite Greenwald’s histrionic insinuation. What the brief argues is that when it comes to minors in school, the courts have long determined that free speech is not absolute.

The brief cites plenty of precedent for this view, such as a 2007 opinion by the federal Fourth Circuit Court of Appeals inLee v. York County School Division, a ruling that denied a teacher the right to post religious-themed materials on classroom bulletin boards, such as a National Day of Prayer poster. “Public schools possess the right to regulate speech that occurs within a compulsory classroom setting,” ruled the appellate judges, and “a school board’s ability in this regard exceeds the permissible regulation of speech in other governmental workplaces or forums.”

The Fourth Circuit cited several other court cases to bolster that view, including the 1988 U.S. Supreme Court ruling in Hazelwood School District v. Kuhlmeier, accepting the power of school officials to control the content of student newspapers when driven by “legitimate pedagogical concerns.” That court concluded that “the determination of what manner of speech in the classroom is inappropriate properly rests with the school board rather than with the federal courts.”

(The ACLU, trying to expand the right of students to engage in free expression, was on the losing side of Hazelwood.)

Further relying on Lee, the ACLU of Virginia argued,

When a teacher is addressing students in her classroom, she is not speaking as a private citizen on a matter of public concern. Rather, she is speaking to a captive audience in her capacity as a school employee, and her speech necessarily bears the school’s imprimatur. As a matter of law, how a teacher addresses students in her class “is curricular in nature,” and “does not constitute speech on a matter of public concern,” even if the same speech would qualify for free speech protection outside the classroom.

Apply the ACLU argument to these hypotheticals: A teacher refers to African American students by the N-word or tells a joke taunting Jews as greedy. Would such a teacher keep their job because of a First Amendment right to bigoted expression? Of course not.

The Loudoun County plaintiffs will likely argue that what they want to do is not parallel to those egregious examples because they do not seek to demean. They have offered to avoid using pronouns entirely when referring to their transgender students and stick with preferred first names. But as the ACLU of Virginia brief notes, using first names with transgender students and pronouns with everyone else would still constitute discrimination. “Publicly treating transgender students differently in this manner,” states the brief, “imposes a stigma on them and invites further attention, scrutiny, and harassment.”

The move to defend the rights of transgender children comes after four years of debate inside the ACLU over how to balance, as the organization itself described, “advocacy for free speech and for equal justice in the fight against white supremacy.” The ACLU has long defended abhorrent speech, most famously in 1978 when it represented neo-Nazis who attempted to march in Skokie, Illinois, home to a large Jewish community, including Holocaust survivors. The town tried to forbid the march. In a famously unpopular stand, the ACLU fought for the Hitler wannabes’ right to lawfully assemble and protest.

In 2017, the ACLU’s Virginia chapter, the same chapter now in the middle of the Loudoun County transgender rights case, followed the Skokie principle and helped neo-Nazis gain a permit to demonstrate in Charlottesville—the notorious hate fest where white racists carried tiki torches chanting “Jews will not replace us,” and where a participant killed a counterdemonstrator with his car.

The fallout from Charlottesville prompted 200 ACLU staffers to accuse its leadership of perpetuating “institutional racism.” The following year, the organization produced a new set of guidelines for case selection, which reiterated that “the speaker’s viewpoint should not be the decisive factor in our decision to defend speech rights,” but also noted, “When we have reason to believe that individuals purportedly seeking to exercise their First Amendment rights are in fact intending to engage in unlawful incitement, violence, true threats, physical obstruction, or destruction of property, we should decline representation.”

Three years after that recalibration, according to The New York Times, the ACLU remains “riven with internal tensions over whether it has stepped away from a founding principle—unwavering devotion to the First Amendment.”

Greenwald argues that the ACLU’s Loudoun County brief is a betrayal of the ACLU’s traditional values, the courage-to-be-unpopular that it displayed in Skokie. The writer, who describes his Substack newsletter as being “captive to no dogma,” even went so far as to say, “I really believe that within 18-24 months, ACLU—either a state affiliate or the national group—will argue in court that hate speech is outside 1st Amendment protections because it infringes the rights of marginalized groups. This brief is a big step.” Perhaps Greenwald is clairvoyant, but such a retreat from the First Amendment is not remotely suggested in the brief.

Moreover, the ACLU’s 2018 case selection guidelines squarely assert that “speakers have a right to advocate violence and hate so long as” the speech does not communicate “intentional incitement to imminent violence, conspiracy to commit violent acts, true threats directed at specific individuals, physical obstruction of the exercise of constitutional rights, or intentional destruction of private or public property.”

It may be that the ACLU’s emphasis on avoiding groups who might cross the line over to violence, combined with the antiracist sensibilities of its younger progressive members, will render it skittish about representing purveyors of hate speech. And maybe that’s not a good direction for the ACLU to take. But whatever your stance on the century-old organization’s litigation on behalf of Nazis and other deplorables, the ACLU’s stance against transgender discrimination is entirely different.

The value of a robust First Amendment is that a free society is one in which all people are free to speak their minds. With free expression comes greater understanding and societal advancement. Hateful speech can never be eradicated, but, as a general rule, we best combat hateful speech with more and better speech.

But adhering to that principle doesn’t require us to be obtuse. Under existing judicial precedents, First Amendment standards are different when the well-being of minors in the classroom is at stake. The classroom is not a town square. A teacher discriminating against a student in school is not contributing to a free exchange of ideas. If the three Loudon County teachers suing the school want to express—as their legal brief states—that “God immutably creates each person as male or female; these two distinct, complementary sexes reflect the image of God; and rejection of one’s biological sex is a rejection of the image of God within that person,” perhaps they can do so on their own time, in speeches or essays or YouTube videos.

As the ACLU of Virginia brief explains, “When a teacher is speaking as ‘a private citizen on a matter of public concern’ a school may restrict the teacher’s speech only when the school’s interest in the ‘appropriate operation of the workplace’ outweighs ‘the employee’s interest in First Amendment expression’ under the balancing test [set] forth in Pickering v. Board of Education.” In line with this precedent, after one of the Loudoun County plaintiffs was briefly suspended by the school for expressing his view about the pronoun policy during a school board meeting, a judge reinstated the teacher.

America has benefited from a zealous ACLU, even when—or especially when—it has defended the right to utter otherwise indefensible speech. But, despite the scolding from those like Greenwald, whose view of the First Amendment is dogmatically obtuse, the ACLU need not take the absolutist position in every case. After decades of defending the First Amendment, the ACLU has the stature to credibly argue that discriminatory behavior toward a child poses greater harm than a compulsory directive on teachers regarding how to speak to a child in class. If it convinces the courts that treating transgender students equally in the classroom is not a violation of a First Amendment that has long had commonsense exceptions, the ACLU will have done its job.

Bill Scher

Bill Scher is political writer at the Washington Monthly. He is the host of the history podcast When America Worked and the cohost of the bipartisan online show and podcast The DMZ. Follow Bill on Twitter @BillScher.