More Hostility to the ACLU Seemingly Blinding One to the Facts:

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.

Fishbane (mail):
Bravo, Eugene. Although I may disagree with you at times, I appaud your rigorous, honest and perhaps most importantly, intellectually curious approach to analyzing actors and actions.
1.14.2006 3:39am
Douglas Brackman:
Mr. Cramer has been over-the-top with his campaign against the ACLU for some time now, and it is good to see someone with conservative bona fides calling him out. No one thinks the ACLU is always right, or always consistent. But to say that it is fair weather fan of free speech, when its true mission is anti-Christian propoganda is deranged and weird. Way to go, Eugene!
1.14.2006 5:41am
mikem (mail):
I think Professor Volokh is less than objective about the ACLU but could reassure people if he spent a fraction of the energy researching and pointing to the ACLU's faults as he does in defending it. Finding a few cases where the ACLU found itself, inadvertently or otherwise, defending Christian civil rights may satisfy ACLU supporters that they have nothing to explain as to the anti-Christian thrust of the ACLU's efforts. But it doesn't add up and seems almost derisive in the expectation that Christians should be reassured, despite what they see, read and experience.
I'm a daily reader of this blog and value Professor Volokh's opinion, which frustrates me even more when I don't see legitimate criticism of the ACLU taken seriously. Free speech restrictions on campus is an issue that the ACLU should be ready and willing to attack with passion. Yet criticism of their obvious paucity of interest is often met with demands for proof that they affirmatively choose not to defend free speech issues or the pointing to a very few instances where some local chapters bucked the do nothing trend and stood up for free speech. It certainly seems that defense of the ACLU on these issues requires "gotcha" research and responses rather than a serious argument that the ACLU is living up to it title and pretensions.
1.14.2006 5:58am
mikem (mail):
"But to say that it is fair weather fan of free speech, when its true mission is anti-Christian propoganda is deranged and weird."
I'm confused. Is calling the ACLU a fair weather fan of free speech in itself "deranged and weird" (way to avoid using "evil"!) or only if combined with the "true mission" remark?
1.14.2006 6:06am
Brett Bellmore (mail):
I think he just got that backwards, Mikem.

I do think, however, that we need more serious, accurate criticism of the organization. For the most part only the "deranged and weird" seem to rouse themselves to actually attack the ACLU, despite there being numerous things they SHOULD be raked over the coals for.
1.14.2006 8:28am
It's not often that you see people thinking so clearly when the ACLU is involved. Well done, Volokh.
1.14.2006 10:18am
Richard Aubrey (mail):
It is interesting that the ACLU and the Dept of Ed have roughly similar views--publicly, at least--of the free expression of religion issue in schools.
The feds released those guidelines probably a dozen years ago.
Nonetheless, school systems continue to waste taxpayers' money being far, far more restrictive of free expression of religion in public schools than the feds, or the ACLU, call for.
There was a case west of Detroit whose details were sealed, but the judge required two members of the school board to visit the offended kid's home and apologize, while reimbursing the plaintiff's costs. If the penalty has any relationship to the offense, it would seem to have been egregious.
There are others which, like the pencil case, are merely boneheaded. One wonders if the ACLU's reputation goes before it panicking the educrats or if the educrats actually don't understand the free exercise clause and/or the federal guidelines.
If the ACLU wanted to establish its bona fides with those who see it "incorrectly", it could be more forthright dealing with such issues, since those get all the ink.
1.14.2006 10:22am
Matt22191 (mail):
Here are a few cases that I didn't see listed on the "The ACLU Fights for Christians" page:

-State v. Lloyd Fuller, in which the ACLU of New Jersey filed a brief on behalf of two prospective jurors, one Christian an one Muslim, who were struck during jury selection in a criminal trial explicitly because of their religious beliefs.

-Turton v. Frenchtown Elementary School, in which the ACLU of New Jersey filed an amicus brief defending the right of an elementary school student to sing the Christian song, "Awesome God," during a voluntary, after-school talent show.

-Keels v. Marzulli Realty, in which the ACLU of New Jersey provided legal representation to a pastor who was denied the right to use the common room of her housing complex to conduct religious services. (I presume it was a public housing complex.) I can't find any discussion of the case other than the ACLU press release, which doesn't mention Pastor Keels' specific religious beliefs. But the word "pastor," to my knowledge, denotes a Christian minister.
1.14.2006 10:38am
Matt22191 (mail):
Oops. Please disregard the second amicus brief link in my previous comment; it leads to the same brief as the first one. My bad.
1.14.2006 10:41am
Andy (mail) (www):

I think Professor Volokh is less than objective about the ACLU but could reassure people if he spent a fraction of the energy researching and pointing to the ACLU's faults as he does in defending it.

Did you by chance visit the bottom three links listed on his original post? Also, if you search in the archives back a few months, you will see posts by the Professor pointing out ACLU founder Roger Baldwin's communist ties.
1.14.2006 11:23am
TDPerkins (mail):
Given the contect of politically active groups looking for incidents to hang fundraising campaigns on, and the "opposition" research that seems to be a part of that context; I think it is fair to consider the failure of the ACLU to defend the "pencil girl" a sin of ommission--that it is not credible that they did not know of it in a timely fashion. Neither is it credible that they didn't have fuds for it.

I agree Mr. Cramer overstated the case, but I can't say I think there's no case.

On balance, his criticisms of the ACLU are well justified.

Yours, TDP, ml, msl, &pfpp
1.14.2006 12:35pm
TDPerkins (mail):
contect /= context Sheesh! tdp
1.14.2006 12:37pm
TDPerkins (mail):
fuds /= funds Clearly more coffee is in order. tdp
1.14.2006 12:38pm
Cornellian (mail):
Read virtually any Clayton Cramer post on certain hot button issues (and this is one of them), then spend 15 minutes on Google looking up the things he claims to be describing, and you'll see why you can't believe a word he says on the subject. Some people feel so strongly about a subject that they blind themselves to the facts. Others feel so strongly that they feel justified in trying to blind others to the facts as well.

He's forever complaining about the differential treatment between religious speech and non-religious speech, as if it were somehow unfair that the Establishment Clause applies only to religions.
1.14.2006 1:06pm
Charlie (Colorado) (mail):
The ACLU has plenty of positions with which to disagree (I dropped my membership, eventually, over the way they seem to think the Bill of Rights is Amendments I, III, IV, V, VI, VII, and VIII.) But Cramer is exhibiting a fallacious style of reasoning that we see over and over again in these sorts of arguments, ie, if I think X and you don't say X, that proves you're opposed to X. It was a favorite down-thread in the NSA discussions too.
1.14.2006 4:51pm
byomtov (mail):
One wonders if the ACLU's reputation goes before it panicking the educrats or if the educrats actually don't understand the free exercise clause and/or the federal guidelines.

Or perhaps the educrats have been listening to conservative politicians who love to stir up the base by exaggerating the restrictions on religion.

If they are misinformed, maybe we ought to ask who it is that is misinforming them.
1.14.2006 4:52pm
Richard Aubrey (mail):
Byorntov. You lose the reality test.

There was a case several years ago in which el ed kids drew pictures of what they were thankful for at Thanksgiving. One kid drew a picture of Jesus. A passing substitute teacher took it down. I've been a sub. To think you have the authority to do that as a sub strikes me as impossible. This moron was on a mission.
After that, according to the report, there were negotiations which resulted in the picture being put up in a less obvious spot. To have negotiations means there were at least two sides. The eventual location of the picture was a compromise, not as far into oblivion as one side wanted, not as far as back to the originally assigned location the other side wanted.
There was another offense, even more egregious. I believe it was headed to SCOTUS, although I don't recall if it got there.
Anyway, the school could have said, oops, my bad, we didn't read the freedom of expression clause or the federal guidelines.
One thing they didn't say was that the conservatives got them all confused.
The principal did say the kid might be happier elsewhere, which meant the kid could expect more of the same.
Doesn't sound like Ralph Reed's work to me.
1.14.2006 6:17pm
Bob Van Burkleo (mail):
I take it that if my niece passes out pencils that say 'God isn't Real' at her next class party Mr. Cramer would have no complaints?
1.14.2006 7:09pm
Richard Aubrey (mail):
I think the question is whether he thinks his complaint merits a lawsuit.
1.14.2006 8:39pm
Bob Van Burkleo (mail):
this is America - EVERYTHING merits a lawsuit - it has replaced reasoned social intercourse in this country.
1.14.2006 8:49pm
Richard Aubrey (mail):
Certainly, lawsuits have replaced the subject in your rhetorical question.

You were implying that Cramer's complaint was based on a viewpoint and not a principle. By reversing the so-called message, you implied he would have a different view.

Wrong subject. Also, have you heard the term BUS TID?

You got caught misrepresenting his position.

Cramer's complaint was the action taken by the school. The question in the case of your hypothetical pencil message is whether Cramer is so unprincipled as to reverse his ostensible position based on viewpoint. In fact, you imply he would, thus being unprincipled. But you have no facts.

1.14.2006 10:23pm
IMHO, Cramer's point about the ACLU choosing not to intervene is a particular case is precisely analogous to the people who Eugene used to report emailed him to ask "why didn't you blog on X? what are you hiding? you're so clearly biased since you didn't blog on X? etc.".

In a sense, you are defending the ACLU in order to defend yourself. No one is under an obligation spending their time and money commenting on everything under the sun in order to prove objectivity or fairness.
1.15.2006 7:55am
I appreciate Volokh's effort, but it looks to me like it isn't changing anyone's mind. Those who want to believe that the ACLU is actually anti-Christian (or pro-child molestation, as Clayton claims to believe) are not going to be convinced by something as petty as facts. To use en vogue parlance, the "truthiness" of their claims is more than enough for them, and shame on those who dare ask them for proof.
1.15.2006 8:46am
Stentor (mail) (www):
I don't think listing cases is a very helpful way of looking at this -- it's just argument by anecdote. We need to determine the total number of free speech cases in each category that were filed, as well as the proportion of them that the ACLU participated in. In other words, whether, over some specified time frame, the following is true:

(number of cases involving non-Christian speech that the ACLU got involved in)/(total number of cases involving non-Christian speech) = (number of cases involving Christian speech that the ACLU got involved in)/(total number of cases involving Christian speech)

Should there turn out to be a statistically significant difference between the two sides of the equation, that would constitute evidence of pro- or anti-Christian bias on the part of the ACLU (though one could then go back and refine the equation by factoring in other issues like the legal strength of the cases or the other resources available to the speaker's side).
1.15.2006 12:21pm
Richard Aubrey (mail):
Stentor. Good idea, but I may be missing something. To prove or disprove the points preceding, shouldn't there be a distinction in the second case as to which side the ACLU is on?
1.15.2006 7:25pm
"We need to determine the total number of free speech cases in each category that were filed, as well as the proportion of them that the ACLU participated in."

So you didn't read the original post? Decisions to intervene in cases involve a great many variables that have nothing to do with an organization's position on free speech. There are many legal advocacy groups like the ACLJ (Pat Robertson's American Center for Law and Justice) that are more than willing to get involved in these kinds of cases. There's no point in the ACLU getting involved if there is already legal representation involved - as Prof. Volokh noted in his post.
1.15.2006 9:18pm
raj (mail):
The ACLU has plenty of positions with which to disagree (I dropped my membership, eventually, over the way they seem to think the Bill of Rights is Amendments I, III, IV, V, VI, VII, and VIII.)

Um, are you another one who believes that the 2d amendment should be incorporated through the 14th amendment and applied to the states? If so, you are just reading the first two clauses of the 2d amendment--which relates to state-controlled militias--out of the US constitution. The fact that states have a hand-in-hand control over their respective militias (should they chose to have them) should be evident from Article I.

The fact that the US SupCt hasn't accepted a 2d amendment case since US vs. Miller makes the discussion fairly vacuous. The NRA certainly has the resources to finance a lawsuit, the gun lobby doesn't need the ACLU to support their cause. A couple of years ago, the US SupCt refused to grant cert to a high profile 2d amendment case. If the most conservative court in recent memory cannot find 4 votes to grant cert, why should the ACLU bother with the issue?
1.16.2006 11:30am
Stentor (mail) (www):
Richard Aubrey: Good point. Perhaps we could count a case in which the ACLU was involved on the anti-speech side as a negative participation -- so for example 30 cases where they supported Christian speech, 5 where they fought against Christian speech, and 20 cases where they were not involved in a Christian speech case would come out to a net 25 out of 50 cases of supporting Christian speech.

TruthInAdvertising: So you didn't read the end of my post, where I explicitly stated that such additional factors would have to be taken into account to do a proper study? I left them out of my bare bones equation in order to emphasize the issue of comparing proportions that I was raising.
1.16.2006 1:38pm
Dilan Esper (mail) (www):
I find the point about amicus briefs particularly sound. The ACLU and other groups have been criticized sometimes for allegedly filing amicus briefs "just to be there", in other words, asserting a general pro-civil liberties position that was asserted with equal force in the briefs filed by the parties. Judge Posner, for one, has condemned this practice.

But if the ACLU DOESN'T file an amicus brief, then some on the Right come storming after them, asking why they didn't file a friend of the court brief.

Whatever it does, the ACLU must be wrong. And that, of course, is exactly how it is for some people.
1.16.2006 2:08pm
Richard Aubrey (mail):
Stentor. Your math is correct, but I think the actual effect, in terms of public relations and the correct view of this hypothetical ACLU reflected by your example would be infinitely worse than the mere arithmetic ratio implies.

I talked unofficially to an ACLU member about a varsity high school team which got together--voluntarily--before a game and prayed. The ACLU guy said the coach was wrong because he was condoning prayer.
This does not square with their ostensible public position, but since we are assured that the Big ACLU is innocent of wrongdoing since the wrongdoing is the fault of the locals who can't be controlled, then we have the possibility that this guy would actually file a case and tell higher to stuff it, if higher actually demurred. Which it probably wouldn't.
I suggest that anti-Christian actions are more than stretching the establishment clause against a creche. In this case, it would be 'way off. But he didn't, because I wouldn't tell him which school system it was. More accurately, I didn't tell him what school system it was because I didn't trust him.
Anyway, the establishment clause didn't stop him from forcing a school to put in a prayer room for Muslims.
Suspicious, says I.
1.16.2006 4:09pm
"I talked unofficially to an ACLU member...". Did you talk to an ACLU attorney? Just because someone's a member of the ACLU doesn't make them an expert on the legal issues involved in such a case.
1.16.2006 5:14pm
Richard Aubrey (mail):
Truth. True.
I didn't say anything about the legal issues. I said I talked to a member of the ACLU who told me what he thought ought to happen, and in fact did happen (the Muslim prayer room).
Perhaps the ACLU ought to muzzle its members in case they give away the plan, huh?
It would be the job of the ACLU attorney to figure out a way to file a case to stop voluntary prayer by a high school team before a game if that's what the local wanted. If he didn't, they'd get one who would. I think the most likely complaint would be that voluntary prayer would make somebody who didn't volunteer feel funny. I've seen that, although I forget whether the cases filed on that basis win or lose.
This is a free country, after all, and they can file whenever they want to, and hire and fire the attorneys they use.
Seems like a fallback position running out of sandbags if you have to say that a member's opinion doesn't mean much.
Really? Come on.
1.16.2006 9:44pm
Every organization has its cranks. Unless the opinion was of the head of a chapter or someone in a leadership position of the organization, I would never assume that the opinion of one person spoke for everyone. Should I assume that Pat Robertson speaks for all Christians? Probably not. In any case, I'm pretty sure that the ACLU lawyers know what will fly in court and what won't. Most aren't going to waste time and money in court on cases that won't go anywhere. People who think otherwise spend too much time learning their law from the TV.
1.16.2006 10:14pm
Richard Aubrey (mail):
I used to know a very small bit of probability theory. What I remember is that what happens is what is likely to happen. If it is not likely to happen, it's not likely to happen.
Thus, Truth, the likelihood that I got the one crank at the chapter is unlikely. What is likely is that I got one of the majority opinion who had the unfortunate impression he was talking to one of the converted. Amazing how that loosens the tongue. Not that I said anything untrue. Just asked a question.
Another person, with whom I checked, said that was not their view. But at that point, the second person knew I was an outsider.

I look dumb. It's an amazingly useful tool in person.

Big. Dumb. Embarrassed smile. Not my fault if people try to take advantage of me.
1.16.2006 11:07pm
John Hardy (mail) (www):
In probability theory that would be considered a statistically insignificant sample.

Sounds like you should get out a bit more.
1.17.2006 8:48am
Richard Aubrey (mail):
John. I know about sample size, too.
But the point is that a random phone-answerer at an ACLU chapter had that view.
The other point is that the organization is not always in favor of condoning voluntary prayer. The exclusion of the non-prayers is considered a reason to forbid it. I wasn't kidding when I said that has been a point in some cases. I just can't remember if the judge went over the bench and beat the hell out of the attorney making the point or not.
The fallback position is losing sandbags steadily.
1.17.2006 11:00am
While the local affiliate issues, etc. are all good points, and I won't pretend to know about ALL their cases,casual browsing of mainstream media and the web seems to show a consistent pattern in the sorts of speech the ACLU chooses to defend. While Mr. Cramer tends to over-characterize failure to defend speech as fighting against free speech, the pattern is hard to ignore. A true champion of free speech does not cherry-pick only that speech with which one agrees. Your defense of the ACLU would be more compelling if, instead of vague speculation about what may or may not be an issue of affiliate budgets, etc., you were to cite cases where they defended free speech of a more conservative nature.
I've looked, and been unable to find any, or of cases where they fought to defend the 2nd Amendment, which doesn't seem to appear in their version of the Bill of Rights. I'd love to see a post about all the ones I can't seem to find.

A true defender of liberties defends even those liberties that run counter to one's self interest. While it's true, there are many violators of this principle on both sides of the political fence, I don't think it serves anyone to defend such fair-weather libertarianism. Call Mr. Cramer on his excesses, but acknowledge that his excesses don't mean those he criticizes are golden.
1.17.2006 4:17pm
"casual browsing of mainstream media and the web seems to show a consistent pattern in the sorts of speech the ACLU chooses to defend"

Did it occur to you that what you see in the mainstream media or even on the web is only a self-selected (by proponents and opponents) fraction of the cases that the ACLU participates in? I would wager that most of the cases never make the news and a significant number never even get to court. An organization that's has a history of defending Neo-Nazis in Skokie and Rush Limbaugh in Florida seems to have demonstrated a much broader appreciation for the First Amendment than most advocacy groups.
1.17.2006 6:08pm

Sure, it occured to me, which is why I chose to mention both the media and the web, which tend to be on opposite sides. I've also browsed the ACLU's own material. My point is, if you're going to defend the ACLU, and those cases exist, why not cite them? Generally, the burden of finding evidence for one's point of view doesn't fall on one's opponents, right?

It's simple - if the ACLU defends conservative speech, there should be lots of cases to cite.

I don't recall them defending Limbaugh, but I'd welcome more information on that. I knew about Skokie, and intentionally excluded it. If you really know your history, if you've read their manifestos and platforms, and are aware of the demographic factors that brought them to power, you know that national socialists and fascists are an outgrowth of the left, not the right.
1.18.2006 1:09pm