The Volokh Conspiracy

Two reasons. First, people and organizations that are wrongly criticized deserve to be defended, even if on balance these are people and organizations with whom one disagrees on many matters. That's especially so if the wrongful criticisms come from people who are at some broad level of generality in one's own political camp. If liberals are wrongly faulted by conservatives, we conservatives should correct those errors. (Don't argue please that liberals don't do the same when the shoe is on the other foot; some do and some don't, and in any case their failings wouldn't excuse our failings.)

Second, as I've said before, I often disagree with the ACLU, and I sometimes even condemn it with some force for its actions. I want to have company in such expression, and many readers of this blog are natural sources of well-founded condemnation of the ACLU.

But we'd both open ourselves up to making false allegations (which is bad itself) and look foolish (which is bad instrumentally) if we fall into a visceral hostility to the ACLU that clouds our judgment, and leads us both to ignore the correct positions that the ACLU takes and to misstate the ACLU's supposed errors.

Clayton Cramer posts a long list of cases that lead him to condemn the ACLU as "evil and hypocritical." Let me point to the paragraph that I first focused on (it happened to come up in a search I did):

The ACLU believes in freedom of speech--unless you are a child who gives another child a pencil that says "Jesus loves little children." Here's the decision where a school district prohibited a child from handing out these pencils at a class party. And here's a case where the ACLU stepped in to protect a child from being disciplined for saying that he had two Mommies. Oh, and this kid wore a T-shirt to school calling Bush an international terrorist; the ACLU thinks that's protected free speech (which it is). Some forms of free speech are protected by the ACLU; others are not (and oddly enough, those are the Christians whose speech is not protected).

(See the original post for links.)

1. I followed the link given for the "Jesus loves little children" case, and found another of Mr. Cramer's posts, this one reading, in relevant part, "As an example, the ACLU did manage to score a victory against free speech in the classroom in this decision. Of course, the child was distributing pencils that siad 'Jesus loves little children' at a class party--clearly, a far more offensive form of speech than explaining to a classmate what 'gay' means. The ACLU should stop the pretense. They do not support freedom of speech as a general policy, or they would have taken the side of Daniel Walz, handing out those pencils. I used to hear conservatives grumble that the acronym 'ACLU' really stood for 'Anti-Christian Litigation Unit.' The ACLU's continuing cynical hypocrisy in supporting free speech in schools some of the time, but opposing it when it carries a Christian message, has persuaded me that the grumblers were right."

The trouble is that, as best I can tell, the ACLU wasn't involved in the cited case. It's not listed as a party or as a friend of the court; I searched online and found no ACLU references to the case. I have no reason to think that they "manage[d] to score a victory against free speech in the classroom," or "oppos[ed free speech]" in this case because "it carrie[d] a Christian message." That earlier Cramer post seems to be simply mistaken.

2. After looking into the pencil matter, I came across this UPDATE to Mr. Cramer's original post: "Just so that those with reading disabilities understand me: there are a number of cases above where the ACLU, if they were still in the civil liberties business, would have at least filed a brief--such as the pencil case. If you want to argue that they don't have the resources to be involved in every case, well, I can believe that. But they have the resources not just to file a brief in the Curley suit against NAMBLA--they are actively defending NAMBLA. The pencil case involved two different protections of the First Amendment: freedom of speech and freedom of religious exercise. The NAMBLA case involves what is, at best, an extreme edge of legal free speech--and yet ACLU finds the resources for this." Unless I'm mistaken, Mr. Cramer is acknowledging that the ACLU didn't "score a victory against free speech" or "oppos[e free speech]" in that case, even though his earlier post claimed the contrary.

But setting aside that failure to correct the earlier post, Mr. Cramer seems to be saying (though not clearly in the original text, only in the update) that the ACLU is to be faulted simply for not participating on the side of the speaker in the pencil case. This is a misguided argument against any public-interest law firm, especially one that operates in large part through local chapters.

First, there are many reasons the ACLU might not participate in a case. The decisionmakers at the local ACLU might not have heard about the case in time to file a brief. The group's lawyers might have been swamped at the time the case was being litigated. The group's decisionmakers might have read drafts or outlines of the plaintiff's brief (or the papers below) and thought the plaintiff was making all the key arguments. The group's decisionmakers might have concluded that, since the Becket Fund was filing a friend of the court brief in this case, it was likely to take care of the key arguments. (You're not supposed to file an amicus brief unless you think you can make arguments that aren't already being made.)

And second, most ACLU litigation decisions are made by each affiliate. The pencil case arose in New Jersey; the case Mr. Cramer points to as the comparison case, which involved a lawsuit against NAMBLA that was based on the group's allegedly crime-facilitating speech, arose in Massachusetts. I have no idea how well-staffed the local New Jersey chapter was at the time compared to the local Massachusetts chapter, or what the chapters' relative attitudes about the merits of friend-of-the-court briefs were (some lawyers think such briefs are often wastes of time), or even how focused on free speech each chapter was. What's more, I highly doubt that Mr. Cramer has any idea about this; he certainly didn't convey any information about this, and it's quite hard to figure this information out, especially when you're trying to figure out why a group decided what it did several ears ago. How then is it remotely fair to say "The ACLU believes in freedom of speech--unless you are a child who gives another child a pencil that says 'Jesus loves little children,'" simply because one ACLU chapter didn't file a friend of the court brief in one case, while other ACLU chapters participated in other cases?

3. Finally, what about the general claim that "Some forms of free speech are protected by the ACLU; others are not (and oddly enough, those are the Christians whose speech is not protected)"? Or the specific claim, in the earlier post to which Mr. Cramer's later post linked, about "The ACLU's continuing cynical hypocrisy in supporting free speech in schools some of the time, but opposing it when it carries a Christian message"?

Well, in an earlier comment thread on this blog, in which Mr. Cramer heavily participated, commenter Allen Asch posted a link to a page titled "The ACLU Fights for Christians." I went to that page, and followed the links, and sure enough they involve the ACLU fighting for the free speech and free exercise rights of Christian speakers (or, in a couple of the cases, of various speakers including quite a few Christian ones).

Once again, it seems to me, we see evidence of how hostility to a group seems to blind one to the facts, and leads one to error. This naturally doesn't mean that one shouldn't criticize the ACLU; of course one should, in the many situations where it merits criticism. But thinking of one's legal and political adversaries not just as misguided but as "evil" tends to influence one's judgment, and not for the better.

As to some groups (say, Nazis, al-Qaeda, and the like), such an attitude is nonetheless proper; failing to see them as evil would itself be bad judgment. It just seems to me that the ACLU is pretty far from falling into that camp, and thinking of it that way predictably weakens one's critical faculties.

Keith Burgess-Jackson faults the New York Times for saying that "nearly 70 percent of Americans [said] in a recent Harris poll that they would oppose Judge Alito's confirmation if they thought he would vote against constitutional protection for abortion rights." The poll itself, he points out, asked "If you thought that Judge Alito, if confirmed, would vote to make abortions illegal, would you favor or oppose his confirmation?," which is analytically quite different: A vote against constitutional protection for abortion rights is a vote to return the matter to the states, not to make abortions illegal. (Even if one focuses on the practical implications, I doubt that more than a handful of states would even make all first-trimester abortions-on-demand illegal, though many states might make many second-trimester abortions illegal.)

But it turns out that the poll results for these two questions aren't vastly different. Prof. Burgess-Jackson writes that "There is no evidence that 70% of the American people oppose overruling Roe v. Wade," but in fact a Dec. 2005 NBC News poll that asked, "The Supreme Court's 1973 Roe versus Wade decision established a woman's constitutional right to an abortion, at least in the first three months of pregnancy. Would you like to see the Supreme Court completely overturn its Roe versus Wade decision, or not?" yielded 30% overturn, 66% not overturn -- not that far off the 31%-69% result reported by the Harris Poll. A Nov. 2005 poll reports a lesser margin, 32% to 57%; but the big picture remains not vastly off of what the Harris poll reports. (The Dec. 2005 and Nov. 2005 polls misdescribe Roe as focusing chiefly on the first three months; in practice, Roe also protected abortions in the following three months, though with some modest regulations; Casey then cut that back to abortions before viability; but this error, while significant generally, is not that important for purposes of this particular post.)

So, yes, it's right to fault the New York Times for its imprecise reporting, and for that matter Harris for surveying about a hypothetical scenario that is extremely unlikely (Alito voting to actually make abortions illegal). But the practical effect of the error is actually not that great, and there is indeed substantial evidence that a large majority, quite possibly nearly 70%, of the public opposes -- whether rightly or wrongly -- a total overruling of the Roe/Casey constitutional right to abortion.

An excellent piece, and a fun read to boot. And, yes, please do pet our soft, luxuriant hair.

I blogged about this back in 2002, but I thought I'd mention it again; it's one of my favorite simple statistics puzzles. The federal Sentencing Commission provides a table breaking down all sentenced federal offenders, broken down by offense type and race. The race categories are White, Black, Hispanic, and Other. (I realize that demographers generally view Hispanic as an ethnicity, not a race, but the Commission follows the more common lay usage here.)

For sexual assault, 51.3% of all offenders are "other." Among the U.S. public as a whole, probably only about 6% would fall into the "other" category (subject to some uncertainty that's not relevant here, since any estimate would be far below 51.3%). What's up? I'll post the answer to the comments in a few days, if no-one else gets it before then (though I suspect they will).

Coming soon to a Torts exam near you? Here's the AP story:

A shrimp a hibachi chef tossed at a man eating at a Japanese steakhouse ultimately led to the diner's death, his family claims in a $10 million wrongful death lawsuit against the restaurant chain Benihana.

Jerry Colaitis wrenched his neck when he ducked to avoid the shrimp in the chain's Munsey Park restaurant, attorney Andre Ferenzo said in opening statements Wednesday.

Months after the January 2001 incident, the 43-year-old Long Island man died from complications caused by neck surgery he required afterward, the lawyer said. . . .

Thanks to reader Chris Buchanan for the pointer.

A misogynistic anti-Condi Rice rant by Russian politician Vladimir Zhirinovsky reminded me of this other item from 1993 (quote verified via the Times of London):

"I've had several blood tests and there is no Jewish blood in me, not even 5 per cent."

The Times aptly characterized this by saying, "He formally denied that he was Jewish in nonsensical terms which only served to betray his obsession with the subject." (Some years later, Zhirinovksy admitted that his father was indeed Jewish.) Another reason to like Rice — anyone who annoys Zhirinovsky gets extra points in my book.

Thanks to Ann Althouse and InstaPundit for the pointer.

UPDATE: Here's the Russian interview. Zhirinovsky, it turns out, also writes: "The civilized world should think and decide whether unmarried political leaders should be forbidden from coming to power. Now in the Soviet system this was all developed to an A+ level. Leading positions were open only to family people, free from inferiority complexes." And a lovely bunch of family people they were.

FURTHER UPDATE: Clayton Cramer has a suitably snide (well, beyond snide) comment on this.

My Deterring Speech: When Is It “McCarthyism”? When Is It Proper? (93 Cal. L. Rev. 1413 (2005)) is finally out; I thought I'd blog an excerpt here, on criticizing people who may have inadvertently helped the enemy. I omit the footnotes, but they're all in the PDF; if you question whether one of my assertion is well-supported, please check the footnotes first to see if they may answer your question.

“To those who scare peace-loving people with phantoms of lost liberty,” Attorney General Ashcroft famously said not long after September 11, “my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies . . . .” That’s McCarthyism, some replied.

Here’s another quote, this one from the president: “Our nation has felt the lash of terrorism. . . . We can’t let [a certain group] turn America into a safehouse for terrorists. Congress should get back on track and send me tough legislation that cracks down on terrorism. It should listen to the cries of the victims and the hopes of our children, not the back-alley whispers of the [group].” The president was Bill Clinton, and the group that he was condemning was the “gun lobby,” which opposed some gun-control proposals that Clinton favored.

Likewise, following the Oklahoma City bombing, President Clinton argued on national television that violence is caused “not just [by] the movies showing violence. It’s the words spouting violence, giving sanction to violence, telling people how to practice violence that are sweeping all across the country. People should examine the consequences of what they say and the kind of emotions they’re trying to inflame.” He might have meant to condemn only those who actually urge violence, and not those who simply “giv[e] sanction to violence” by harshly criticizing the government. But his words could also have been interpreted (and were interpreted, by at least one sympathetic commentator) as a criticism of strident anti-government rhetoric more broadly.

Similarly, consider Winston Churchill’s lament that his critics’ wartime statements were (among other things) “weaken[ing] confidence in the Government,” “mak[ing] the Army distrust the backing it is getting from the civil power,” and “mak[ing] the workmen lose confidence in the weapons they are striving so hard to make,” all “to the distress of all our friends and to the delight of all our foes.” And, finally, consider this quote from George Orwell during World War II: “Pacifism is objectively pro-fascist. This is elementary common sense. If you hamper the war effort on one side, you automatically help out that of the other.” Orwell’s message, I take it, was this: The pacifists’ tactics only aid the Nazis, for they erode the Allies’ national unity and diminish their resolve. They give ammunition to the Allies’ enemies.

Such statements have some things in common. They accuse people of doing things that help the enemy. The great majority of the accused are probably decent people, who have no desire to help terrorists or Nazis.The statements may also deter dissenters: People don’t like to be told that they are helping the nation’s mortal enemies, especially when the charge comes from an official to whom millions listen. Even if the accused think the accusation is unjust, they may keep quiet, or at least tone down their arguments, to avoid such attacks in the future. The accusers likely intended to deter dissent by making potential dissenters feel embarrassed to make certain criticisms that the accusers thought baseless and harmful.

And the accusations may also have been factually correct. Pacifists’ opposition to the Allied war effort may have helped the Nazis as much as pro-Nazi opposition would have. Excessive insistence on gun owners’ rights might likewise help terrorists. Similarly, criticisms of the administration’s actions may well erode national unity, diminish national resolve, give ammunition to our enemies, and aid terrorists. This is especially true when the criticisms come from legislative leaders. Recall that Ashcroft’s statement came at a hearing organized by Senator Patrick Leahy, then-chair of the Democrat-run Senate Judiciary Committee and a leading adversary of Ashcroft.The hearing had apparently been called in part to criticize the administration’s antiterrorism policy on civil liberties grounds. Enemies who see our political leaders divided on the war on terror may well be em-boldened, and foreign neutrals may see us as less likely to prevail than if we seemed united. Such internal division may well “distress . . . all our friends and . . . delight all our foes.” And if Senator Leahy’s and others’ criticisms were indeed unfounded or at least exaggerated (a hotly contested position, of course, but one that Ashcroft defended on the merits in his testimony), then Ashcroft could have reasonably concluded that the critics’ actions were both unjustified and dangerous.

Good intentions may sometimes yield bad results. That’s true of well-intentioned administration actions, which the party out of power often warns about. It’s also true of well-intentioned criticisms of such actions. If such bad results seem likely, then the public ought to be warned of this danger, though of course those who disagree should likewise argue that the danger is itself a “phantom.”

And government officials are as entitled as anyone else to note such dangers. The administration, which is responsible for keeping the country safe, has a responsibility to warn of a wide range of dangers. People who ignore the danger, if the danger is real, may well deserve to be criticized. And when political leaders debate questions of liberty and national security, plausible claims that one side’s actions may jeopardize liberty may reasonably be met by plausible claims that the other side’s actions may jeopardize security.Now it’s true, as many critics argue, that such accusations try to move people through fear. But terrorists ought to be feared. Many groups rightly try to influence voters by making them afraid of environmental catastrophe, crime, gun violence, terrorism, war, special interests, or suppression of civil rights. Well-founded fear is better than foolish fearlessness. Some fear is excessive or even irrational, but some is eminently justified, or is at least a reasonable response to uncertainty.

It’s also true that politicians sometimes harness fear for political advantage. That’s what they’re supposed to do in a democracy. When national security is a big part of an election campaign, each side likely believes that its program will protect the nation, and the other side’s will (at least comparatively) endanger the nation—and each side then has the right and even the duty to make these arguments to the voters.

In 2004 Democrats sincerely believed that reelecting George W. Bush would endanger America, because they thought that Bush’s national security policy was dangerous. House Minority Leader Nancy Pelosi, for instance, argued that “the president has failed in how he has tried to protect America. . . . We are less safe—we are less safe because he is president . . . .” Republicans sincerely believed the same of Kerry, and argued accordingly. One might find one side’s case to be erroneous or even dishonest, but making fear of terrorism an “underlying theme of domestic and foreign policy” is quite proper when terrorists are doing frightening things.

Yet at the same time, pointing out (even if accurately) that criticism of the administration is helping America’s foreign or domestic enemies has costs. To begin with, it can distract from the legitimate arguments that the critic is making. Perhaps paying more attention to civil liberties will actually help the war effort by showing us to be a humane and tolerant nation and thus making us more popular throughout the world. Or maybe broadly protecting civil liberties will hurt the war effort, but some cost to the war effort is a tolerable price to pay for preserving our traditional rights.

Moreover, arguing that critics of the government are helping our enemies can wrongly tar people with the implication of bad purpose, even if no such charge is explicitly made. This may be unfair. It may breed unnecessary political hostility—not just disagreement but contempt or hatred— that is itself harmful to the nation. It can overdeter speech by making speakers afraid to level even those criticisms that, on balance, help the country more than hurt it. As Orwell himself wrote, just two years after the lines I quote above,

We are told that it is only people’s objective actions that matter, and their subjective feelings are of no importance. Thus pacifists, by obstructing the war effort, are “objectively” aiding the Nazis; and therefore the fact that they may be personally hostile to Fascism is irrelevant. I have been guilty of saying this myself more than once. . . .

In my opinion a few pacifists are inwardly pro-Nazi . . . . The important thing is to discover which individuals are honest and which are not, and the usual blanket accusation merely makes this more difficult. The atmosphere of hatred in which controversy is conducted blinds people to considerations of this kind. To admit that an opponent might be both honest and intelligent is felt to be intolerable. It is more immediately satisfying to shout that he is a fool or a scoundrel, or both, than to find out what he is really like.

Now perhaps Orwell’s change of mind was occasioned by the change from the dark days of 1942 to post-D-day, post-Stalingrad 1944. It is easier to be generous to those who, in your view, helped Hitler (even unintentionally) when Hitler is nearly defeated. Yet I think that Orwell’s second thoughts, whatever their reason, were objectively the right ones. Explaining why your adversaries’ arguments unintentionally help the enemy is legitimate. But expressly acknowledging that this effect is likely unintentional—even when you’re tussling with a senator who you think has unfairly attacked you—is fairer, less politically divisive, and often more rhetorically effective. I suspect John Ashcroft’s quote alienated more Americans than it persuaded. Likewise, the vitriolic Bush-the-Nazi attacks from some parts of the Left probably, on balance, helped Bush in the 2004 election.

So it seems to me that, first, the quotes with which I began this Part could have been put better. Second, because people tend to overestimate the bad effects of their adversaries’ speech, we should often be skeptical about allegations of such bad effects. And third, such allegations provide a convenient way to evade (deliberately or subconsciously) the substantive criticisms leveled by the adversaries’ speech.

Nonetheless, responding to such allegations with charges of McCarthyism is likewise a convenient way to evade the merits of those allegations. If Ashcroft, Clinton, Orwell, and Churchill were wrong in their estimates of the harm that their adversaries’ arguments were causing, one should certainly call them on that. One should do likewise if the harms are exceeded by the benefit of the remedies that the adversaries propose. But these arguments need to be made on the merits. Labeling allegations as “McCarthyism” is likely to distract listeners more than it helps them assess which allegations are sound and which aren’t.

when a man can't even use the word somdomite without prompting the innuendo that this was an inadvertent error? Give me some credit, folks.