The ACLU and Bigoted Speech in Public:

Clayton Cramer writes:

I suppose that they could have arrested him for public drunkenness, but they picked the far more serious offense:

A final-year Oxford University student from Belfast who called a mounted policeman's horse gay will not be prosecuted, it was announced today.

Police stood by their decision to take Sam Brown (aged 21) to court for making "homophobic comments" after the Crown Prosecution Service today dropped the case.

Mr Brown approached the officer during a night out with friends in Oxford after his final exams, and said: "Excuse me, do you realise your horse is gay?"

Moments later, two Thames Valley Police squad cars appeared in the High Street and Mr Brown was arrested under section five of the Public Order Act for making homophobic remarks.

His remarks were deemed likely to cause harassment, alarm or distress.

To who? The horse? Apparently, the police were afraid that these remarks would have been offensive to those passing by:

A spokesman said: "We present the case to the CPS and the CPS make the decision to proceed or not.

"He made homophobic comments that were deemed offensive to people passing by."

So far, so good -- an important illustration of how English law potentially restricts free speech (and why we might want to resist calls for the importation of foreign free speech norms into the U.S.). Yet here's what Mr. Cramer closes with:

You wonder on which side the ACLU would have been if a similar law and case presented itself. On the side of the drunken student's free speech rights? Or the right of the community to not hear ideas that offend?

Well, you might wonder this -- if you didn't know the ACLU's record on criminal prosecutions for bigoted speech. But if you did know it, or you decided to investigate it instead of wondering, you'd find:

  1. In the highest-profile Supreme Court case of the last 15 years that dealt with criminal punishment for bigoted speech -- R.A.V. v. City of St. Paul (1992) -- the ACLU (both the national group and the local chapter) filed an amicus brief defending the right to say bigoted things. "[A] ban on expressive activities that 'arouse[] anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender' cannot be reconciled with our society's commitment that 'debate on public issues should be uninhibited, robust, and wide-open ....'" "It is tempting to say that the message conveyed by even the public burning of a cross during a political rally" -- the case involved racist crossburning, though the logic of the ACLU's argument applied to all bigoted speech -- "is so offensive, so hurtful, and so antithetical to the ideal of equality, that it ought to be subject to prohibition without the need for rigorous scrutiny of whether it crosses some First Amendment line from protected advocacy to unprotected threats or intimidation. The Constitution, however, does not tolerate such shortcuts."

  2. In another recent case involving bigoted speech, Virginia v. Black, the local ACLU chapter likewise argued that bigoted speech is protected unless it fits within the threat exception or the incitement exception (or, possibly, the exception for face-to-face personal insults that are likely to start a fight). There, the ACLU was among the lawyers for the defendants.

  3. The above two cases are most relevant to predicting the ACLU's position on the matter that Mr. Cramer points to -- criminal prosecution for offensive bigoted speech. But even if one looks to noncriminal penalties, and focuses on the highest-profile bigoted speech controversy of the last two decades, campus speech codes, one finds that the ACLU has supported free speech protection. (Three local chapters in California didn't take this view, but the national ACLU did.)

The ACLU has unfortunately supported speech restrictions under the rubric of workplace harassment law, though Nadine Strossen, the ACLU's President, publicly dissented from that position; but, even more unfortunately, the ACLU here is simply in the legal and social mainstream (for my dissenting views, see here, though even I would accept some restrictions on one-to-one insulting speech). In any event, it is the ACLU's past positions in cases involving criminal punishment of speech on the street that seems to be the best predictor of its future position in a case involving criminal punishment of speech.

So it seems to me that there's little call to imply that the ACLU would oppose protection of free speech in the case that Mr. Cramer describes. Those familiar with the ACLU's past position in such cases should see that pretty clearly.

Ex-Fed (mail) (www):
You're going to get de-linked for sure for that.
1.20.2006 1:47pm
John Jenkins (mail):
I just don't get the hostility to the ACLU. They don't get any of my money, but that's because there are people like IJ out there doing what I think is more important work (and work that is not as supported as the ACLU, though I think it should be). You can criticize some of their positions on the merits (i.e. harassment law), but why criticize the organization itself? Even if it selectively defends positions with which it agrees (a claim I am not making, but let's say it does), then why does that matter? It's simply an allocation of resources by an organizations in favor of things with which it agrees. If one wants to protect other rights, there are other organizations than the ACLU. Maybe I'm just confused.
1.20.2006 1:47pm
wt (mail) (www):

Well, you might wonder this -- if you didn't know the ACLU's record on criminal prosecutions for bigoted speech. But if you did know it, or you decided to investigate it instead of wondering, you'd find:

And that's what they call a, um, ZING!
1.20.2006 1:48pm
Defending the Indefensible:
Prof. Volokh,

How many more articles do we need on Clayton Cramer? He's clearly quite willing to ascribe unlikely hypothetical positions to persons and organizations he opposes, in classic strawman argument form. Does more need to be said?
1.20.2006 1:50pm
Defending the Indefensible has a point. Is it really fair to keep using Cramer as an example of an ACLU critic? Reading his attacks, you might think he was part of an ACLU dirty tricks campaign to discredit ACLU opponents.

I ask the following question because I honestly don't know the answer. Does anyone besides Professor Volokh read Clayton Cramer's stuff? Does this guy have any influence at all?
1.20.2006 1:53pm
Paul McKaskle (mail):
The ACLU supported the Planned Parenthood position against anti-abortion protesters in Planned Parenthood v. American Coalition of Life Activists, 290 F.3d. 1058 (9th Cir. en banc 2002). The suit resulted in a jury verdict of over one hundred million dollars (mostly punitives) against the defendants, (though later the award was knocked down considerably following the Supreme Court decision in Campbell v. State Farm). The Ninth Circuit upheld the judgment against the abortion protesters in a 6-5 split decision on the grounds that the activities of the abortion protesters were true threats. Two of the most liberal (Reinhardt and Berzon) and two of the most conservative (O'Scannlain and Kleinfeld) members of the circuit (plus maverick judge Alex Kozinski) dissented strenuously on free speech grounds.
1.20.2006 2:00pm
Eugene Volokh (www):
Defending the Indefensible: Mr. Cramer does get a couple of thousand visitors per day. (I'm sometimes one of them, since some of his posts are actually pretty good.) More broadly, some of his misguided criticisms of the ACLU strike me as emblematic of what I've heard others say, too. It seems to me that there is indeed a broader current of unfounded hostility to the ACLU, and I'd like to do my bit to try to argue against it. (Well-founded disagremeent with the ACLU is just fine, and I've often tried to engage in it myself.)
1.20.2006 2:04pm
JE Meyer (mail):
Didn't Clayton Cramer used to be a Volokh Conspirator? Too bad you kicked him off -- things would have been really interesting around here.
1.20.2006 2:06pm
Timothy Sandefur (mail) (www):
Can you point me to where Ms. Strossen has dissented from the ACLU's position on workplace speech? In September, at a public event at the Cato Institute, I asked Ms. Strossen about this issue, and in particular the Aguilar v. Avis Rent-A-Car brief. She answered that she agreed with the brief that was filed in that case, and that she believed "targeted harassment" was not protected by the First Amendment and could be prohibited by injunction. (Which of course might be correct, but I question whether that's an accurate description of the Aguilar injunction.) Later, in a private conversation at the reception, she reiterated to me her belief that workplace harassment could be prohibited by law without violating the First Amendment.
1.20.2006 2:06pm
roger (mail):
I think the bigger question is why Mr. Cramer does this? He doesn't do research. He doesn't act like a lawyer. Why does he think this is acceptable behavior for an American.

There must be some psychology literature into what turns people from normal rigorous case-law reading Americans into slogan-shouters. Was it a traumatic event? I am genuinely curious, because I think, in his heart he is a good person.
1.20.2006 2:13pm
Hans Bader (mail):
Re: the ACLU's support for a hate-speech gag in Aguilar v. Avis:

ACLU President Nadine Strossen's description of the Aguilar case wasn't accurate; it covered remarks about the plaintiffs that they would learn about second-hand, not face-to-face utterances alone. Hardly "verbal conduct" rather than speech as the ACLU's amicus brief claimed in an Orwellian non-distinction.

And the trial judge who issued the hate-speech gag himself made clear that any insults had stopped as of two years before he issued the order, contrary to the suggestion of the ACLU's amicus brief defending the order on appeal, which claimed that there was an unending barrage of racial insults.

Eugene's opposition to this hate-speech gag wasn't a dissenting or non-mainstream view, as he seems to concede; the San Francisco Chronicle, which praised the restriction on speech, nevertheless admitted in its news coverage that it was an "unprecedented" restriction on speech and not just an inevitable application of harassment law to speech.
1.20.2006 2:16pm
Eugene Volokh (www):
Tim: Strossen does believe (as do I) that targeted workplace harassment is indeed constitutionally unprotected. She did, however, write articles arguing that the First Amendment did substantially constrain harassment law. As I recall, her view was similar to my view that untargeted workplace harassment -- e.g., posters, overheard conversations among willing participants, and the like -- should generally be protected.
1.20.2006 2:18pm
Timothy Sandefur (mail) (www):
Okay, well perhaps I misunderstood. I'd like to think so.
1.20.2006 2:22pm
Duncan Frissell (mail):
When someone is saying things to one listener that the listener clearly doesn't want to hear, the speech is likely only to annoy and offend, not convince or edify. If the main reason we value free speech is that it allows people to spread their ideas, then the value of one-to-one speech, aimed solely at an unwilling listener, is modest indeed.

Eugene, do you really believe this or is it just for public promotion of a reputation of "reasonableness" or to encourgage less oppression on the part of the public?

I ask because I note "If the main reason...". The libertarian reason for opposing speech restrictions is utterly unconnected to the value of the speech and is connected to concepts like "natural liberty".
1.20.2006 2:23pm
Hans Bader (mail):
The ACLU has not only supported some criminal hate-speech laws, it has gotten the New Jersey Supreme Court to broaden them, as in State v. Mortimer, 135 N.J. 517, 641 A.2d 257 (1994), which watered down the language in the New Jersey hate-speech statute requiring that prohibited speech be uttered because of the victim's protected characteristic. See N.J.S.A. 2C:33-4.

That statute banned offensively coarse or annoying speech if the target was selected based on a protected characteristic.

At the urging of the ACLU, the New Jersey Supreme Court made the statute even broader by reading out of the statute a limit on its reach that was arguably vague. So much for judicial restraint.

This is the same New Jersey Supreme Court that ruled that "consent is not a defense" to a rape charge in State in the Interest of M.T.S. (N.J. 1992) (see criticism of the case in the Harvard Law Review), held that a single joking racist comment is illegal racial harassment in Taylor v. Metzger (N.J. 1999), and that the Boy Scouts do not have the right to select scoutmasters who agree with their positions in Dale v. By Scouts (N.J. 1999), rev'd Boy Scouts of America v. Dale, 530 U.S. 640 (2000), a position that the Supreme Court rejected in its Dale decision in 2000.

It's also a court frequently praised by ACLU leaders as a trailblazer among courts. I think a more accurate description of the New Jersey Supreme Court would be that it is an abusive and power-hungry court that lacks a respect for basic values of free speech and privacy.

Headnotes from the Mortimer case are below:

135 N.J. 517, 641 A.2d 257, 63 USLW 2015

Supreme Court of New Jersey.
STATE of New Jersey, Plaintiff-Appellant,
David MORTIMER, Defendant-Respondent.

Argued Oct. 12, 1993.
Decided May 26, 1994.

Defendant pleaded guilty in the Superior Court, Law Division, Middlesex County, to fourth-degree harassment. Before sentencing, defendant's motion to dismiss indictment was granted. State appealed and the Supreme Court granted direct certification. The Supreme Court, Clifford, J., held that: (1) prosecution of defendant under harassment statute did not violate defendant's right to freedom of speech; (2) prosecution of defendant under harassment statute did not impermissibly enhance defendant's punishment on basis of motive; (3) harassment statute was not unconstitutionally vague after Supreme Court read out vague language; and (4) harassment statute did not violate equal protection clause.
Reversed and remanded.

West Headnotes

[17] KeyCite Notes

165 Extortion and Threats
165II Threats
165k25 Nature and Elements of Offenses
165k25.1 k. In General. Most Cited Cases

Statute, making it a crime if person, with intent to harass, "makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm," was not unconstitutionally vague despite fact phrases of statute were vague when viewed in isolation; language was sufficiently clear to determine that statute proscribed a person from making a communication using one of enumerated methods with intent to harass recipient of communication. N.J.S.A. 2C:33-4, subd. d; U.S.C.A. Const.Amend. 5.
1.20.2006 2:28pm
farmer56 (mail):
The, American Civil Liberties Union (ACLU) has no interest in protecting the civil liberties of the American populace. More than 90% of their effort is in justifing one SCOTUS decission. Roe v Wade. The other 10% is devoted to keeping the people from ever wittnessing any form of any religious expression. For, if you are offended by the display of a manger scene on the court house square, than it is most obvious that the site of swine, at the public fundeded county fairs, is just as offensive, at least as much to the Jewish and Muslim population.

So. Who is offended? and How?

And why do the courts have a say?
1.20.2006 2:30pm
Eugene Volokh (www):
Farmer56: Happen to have any evidence for your assertion? Or is it just that more than 90% of their efforts that you notice are aimed at protecting abortion rights, and 10% of the efforts are devoted to government religious speech questions (I'm reading the "ever witnessing any form of any religious expression" phrase charitably)? That may have much more to do with what you read and what you notice than how the ACLU's efforts actually break down.
1.20.2006 2:38pm
Hans: I can't help but note that you cut off the headnotes before they mentioned that the ACLU filed its amicus IN OPPOSITION TO the state statute. Pretty sleazy.
1.20.2006 2:56pm
Master Shake:
EV - I am really baffled that someone of your intellectual heft and balanced approach continues to give Clayton Cramer so much attention. I recognize you agree with him on certain issues, such as with respect to the Second Amendment, but in matters such as this he has CLEARLY demonstrated himself as an intellectually dishonest, fact distorting, venom-spewing, unreasoned, arrogant ideologue. I just don't get it.
1.20.2006 3:03pm
The Orginal TS (mail):

The ACLU's positions are far more nuanced than your parody suggests. What do you make of this?

The ACLU does a lot of stuff like this. It just that Rush doesn't spend 45 minutes screaming about the stuff the ACLU does that agrees with.
1.20.2006 3:04pm
farmer56 (mail):

I am honored

Yes I pulled the numbers from the southern portion of my anatomy.

BUT The ACLU, cares for only a small portion of our civil liberties. I have heard National leaders explain that, although there is a right to keep and bear arms, they dont go there. And the right to own property? Seems I see no work from the ACLU to protect it. States rights? Seems that the right of a state to set the appropriate age for execution?? These are just a few exammples of the ACLU selective use of civil liberties.

Please explain.

If my neighbor is offended by a manger scene on the court house square, the ACLU will bring a law suit. But if I am offended by swine at the Govt sponsored county fair, the ACLU does not respond?
1.20.2006 3:10pm
Bob Bobstein (mail):
farmer56: Yes I pulled the numbers from the southern portion of my anatomy... Seems I see no work

That is, you are getting more emotional bang from pretending that the ACLU is a straw man that you get to hate, rather than actually looking into what they do.

Also, your assertion that the state has an inalienable right to set the appropriate age for execution will do little to convince libertarian-leaning conservatives like Prof. Volokh, who, I think, believe that people have rights, not states.

roger, you make an interesting point. I think that slogan-shouting, as you put it, is easier and more likely to get attention than reasoned consideration.
1.20.2006 3:18pm
Farmer56 demonstrates the need to explain where Cramer makes mistakes. This debate is repetitive, but necessary. Too many people think the ACLU's job is to be the savior of all that is (in the critics' opinion) good in the world.

Farmer56, the Institute of Justice won't defend a woman's right to an abortion. The IJ will defend property rights, but not in a criminal case. That doesn't mean the IJ opposes "justice" for women or "justice" in criminal cases. The IJ just picks and chooses its issues according to what it thinks is important and where it thinks it can make a difference.

Unlike the IJ, the ACLU is really many small organizations. Some of its local affiliates take different positions on the same issues. All of its affiliates have different priorities.

Like the IJ (and every other public interest law firm), the ACLU is selective about how it defines its mission and which cases it chooses to litigate. What's wrong with that?
1.20.2006 3:24pm
The Orginal TS (mail):
If my neighbor is offended by a manger scene on the court house square, the ACLU will bring a law suit.

Once again, if you actually understood the ACLU's position, you might well agree with it.

The ACLU would object to the county using public funds to erect a manger scene on the court house square. The ACLU would not object to the county creating a "free speech zone" on the court house square and allowing private groups to put a manger scene there -- so long of course, as the free speech zone wasn't reserved solely for Christian religious displays.

To put it another way, the ACLU is not opposed to religion or religious display -- which you'll see if you look at the link I offered above. The ACLU is, however, opposed to religious display by government.
1.20.2006 3:31pm
Hans Bader (mail):
XX --

Where in the headnotes to the Mortimer case did you see a passage that, as you say, "mentioned that the ACLU filed its amicus IN OPPOSITION TO the state statute"?

The counsel listing doesn't indicate on which side the ACLU files its amicus brief, only that it filed it. And the headnotes don't themselves appear to mention the ACLU. (I'm basing this on my review of the west version of the case online apparently drawn from the Atlantic Reporter. Is there something extra in the N.J. reports?)

And my recollection (conceivably faulty) in discussing the case with Mortimer's public defender many years ago after the N.J. decision was that the ACLU urged the court to uphold the hate-speech statute, despite its considerable breadth, provided the vague "ill will or hatred" limitation was excised from the statute.
1.20.2006 3:37pm
TMURRAY (mail):
I remember the inspiring mini-series about the ACLU and their defense of the NAZI party's march thru Skokie (spelling?) IL. That formed my impression of the ACLU in the '70's. But the ACLU lost me when they elevated abortion rights over those of free speech, arguing for "prior restraint" over Operation Rescue in the '80's. What happened over the time between those two events that so radically changed the very things that the ACLU stood for?

(NB. I am neither a Nazi nor an abortion protester. But that doesn't mean that I can't see a fundamental change in the principles important to the organization over time.)

I read Clayton's blog regularly. And I do notice that he often uses the ACLU as an exemplar for the general anti-libertarian drift in our legal systems (courts and laws). That is inaccurate and a weakness in his arguments.

However, while the ACLU did not advocate for the law that got that British student arrested for calling the Policeman's horse "gay", nor did it write the law that got that Swedish pastor arrested for quoting the Bible, I would not be at all surprised if the majority of the ACLU's members would have voted for those laws. Hate speech laws and the current ACLU share the same supporters. I believe that Clayton often uses "ACLU" as a shorthand for the politically-correct culture as a whole.

Also, remember that actions speak louder than words. The examples above of the ACLU supporting free speech are great, but there will have to be a lot more of them to override the constant drip-drip-drip of the cases where they choose to advocate their politics rather than their principles.
1.20.2006 3:46pm
The examples above of the ACLU supporting free speech are great, but there will have to be a lot more of them to override the constant drip-drip-drip of the cases where they choose to advocate their politics rather than their principles.

Or, more accurately, where the ACLU affiliates choose to advocate their priciples over your principles.

The Operation Rescue cases do not show hypocrisy. They show an organziation struggling to choose between two rights it supports--the right to an abortion and the parameters of the right to free speech. Clearly, some Operation Rescue tactics exceed the limits of free speech (physically blocking clinics, for example). Also clearly, some Operation Rescue tactices were lawful.

Maybe some affiliates went too far in supporting the clinics, but the organization was struggling to defend two goals that were in tension.
1.20.2006 3:53pm
James of England:
Public Defender,

Would you say that contrary positions on the Boy Scout and Solomon Amendment cases were not hypocritical?

I'm not sure that there's anything wrong with hypocrisy in a chapter based organization, as Prof. Volokh frequently reminds us. Different chapters may have good faith disagreements. Still, defending the hypocrisy as legitimate and denying the existence are different arguments and it does not strike me that both are equally valid.
1.20.2006 4:09pm
John Jenkins (mail):
It's not hypocrisy unless you can attribute the conflicting positions to the same agent. If the ACLU of Virginia and the ACLU of Nebraska take different position, there exists no hypocrisy because it is not the same agent acting in both cases.
1.20.2006 4:29pm
James of England,
Both the Boy Scout and Solomon cases were consistent with regards to the position on the right of gay people to be free of discrimination. I have not read the briefs the ACLU submitted in the two cases (have you?), so I can't comment on the specifics of the ACLU's argument.

But like the Operation Rescue cases, the Boy Scout case involved two conflicting "liberties" that the ACLU belives in. Remember, there has always been a tension between civil rights legislation and the Free Association rights. It's not hypocrisy to pick sides.
1.20.2006 4:38pm
Dilan Esper (mail) (www):
Look, ACLU chapters are generally torn on the issue of workplace harassment and hate speech, because two values that the ACLU finds important-- free speech and equality-- are sometimes placed in conflict in such cases.

Nonetheless, the ACLU is still a very speech-protective organization. In addition to the examples Professor Volokh airs, the most famous example is probably the Nazis in Skokie, Illinois. The ACLU lost a heck of a lot of Jewish members over that one.

When I worked for the ACLU Foundation of Southern California, twelve years ago, the chapter was litigating Johnson v. County of Los Angeles, which established the right of a firefighter to read Playboy magazine at work, despite the fact that it might offend female coworkers.

I understand the ACLU isn't a perfectly libertarian orginization. Nobody agrees with them 100 percent of the time. But there's a big gap between "I don't always agree with the positions they take" and "they are a bunch of hypocrites". And the critics of the ACLU want to slide directly from the former into the latter without any support for the position.
1.20.2006 4:39pm
Houston Lawyer:
It is interesting that the limitations on free speech that the ACLU supports (i.e. workplace harrassment) are the ones with the most effect on the most people. Just yesterday I had to explain to my secretary (who is young and pretty) that there are legal reasons why my male law partners and I don't seem to notice changes in her hair or clothes styles (as opposed to typical male indifference). Civil penalties limit freedom of speech far more effectively than criminal ones.
1.20.2006 5:16pm
farmer56 (mail):
Public defender

You make an anology of the right to free association..(Constitution)..AND.. The law of The right to be free of discrimmination.

There is no Constitutional 'Right to be free from discrimintaion'. If...That were true...two girls would be sitting in law classes now, except they had the wrong color of skin. I kook forward to you quoting the applicaple law.
1.20.2006 5:32pm
CJColucci (mail):
If the crowd you run with keeps needing reminders that it is making up its unshakeable and fervent views out of whole cloth, maybe you need to run with a different crowd.
1.20.2006 5:37pm
farmer56 (mail):

Be less cryptic.

Maybe mention some point of law, or, the constitution.
1.20.2006 5:41pm
Gordon (mail):
I would suggest that some of the ACLU's detractors go to the ACLU's own website with an open mind and see all of the issues upon which the national organization and its state chapters are litigating or arguing about.

I don't agree with the ACLU on a majority of the issues upon which it opines. But I am very thankful and happy that an organization like the ACLU exists to argue and litigate these issues.

I'm also happy the NRA and its legal arm exists to espouse 2nd amendment rights, though I disagree with many if not most of their positions.

I'm also happy that the Pacific Legal Foundation and like-minded groups exist to espouse Fifth Amendment Takings Clause rights, even though I think they go way too far.

Demonizing the ACLU is nothing more than ignorant, demagogic, partisan hackery. Disagreeing with the ACLU, as suggested by Professor Volokh, is something else entirely.
1.20.2006 5:41pm
The Orginal TS (mail):
Houston Lawyer, I'm not too philosophically comfortable with some workplace restrictions myself. On the other hand, I also recognize what proponents of these restrictions are weighing in the balance on the other side. The same law that keeps you from offering your secretary perfectly civil compliments also prevents you from telling her she's got nice tits or telling her that her new hairstyle makes her look like a bull dyke. It is unfortunate that we cannot legislate politeness and sensitivity and leave it at that. The law is all too often a very blunt instrument.

Another point in defense of the ACLU is that it often acts as the canary in the coal mine. For example, I read that the NY chapter of the ACLU is now challenging NY City's random subway search policy. Whether you agree with this policy or not, you must admit that this policy is the thin end of the wedge of what could be a major change in America's view of privacy and the Fourth Amendment. The balance between security and liberty is something that America needs to seriously debate. Regardless of the conclusions that debate reaches, the debate itself is a good and necessary thing. The ACLU often serves as a catalyst for this kind of debate by taking these kinds of cases and forcing the government to make a reasoned defense of its position.
1.20.2006 5:48pm
The Orginal TS (mail):

Come on, now, be fair. I offered you a link to comment on. Please do. Here it is again to save you from scrolling up.

Do you disagree with the ACLU's position here?
1.20.2006 5:54pm

You make an anology of the right to free association..(Constitution)..AND.. The law of The right to be free of discrimmination.

There is no Constitutional 'Right to be free from discrimintaion'.

"[No State shall] deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. Amendment XIV Section 1. [emphasis added].

I'm not sure if this is what you're looking for, but I think it could be paraphrased generally as a 'right against discrimination.'
1.20.2006 6:15pm
Anderson (mail) (www):
Cramer's moral and intellectual laziness are on fine display at this post, where he suggests that Michael Scheuer, formerly of CIA's bin Laden unit, actually finds bin Laden's ideology "rather attractive." Cramer does his trademark "I wonder" to accuse Scheuer of being sympathetic to OBL. No, really, read the post.

(Offered per the remarks about CC's lack of cognitive skills. My full reaction to his post is not only off-topic but too rude for the comments here.)
1.20.2006 6:44pm
Doctor Biobrain (mail) (www):
Geez, this post was sort of like using Tae Kwon Do to take out a cricket. This Cramer guy clearly has no idea of what he's talking about, and is just repeating the "ACLU=Bad" version of reality that he's been fed. I suppose these kinds of refutations need to be done, but isn't there some lighter way of dealing with these twits? It just seems like a form of compliment to be giving a fancy legal sounding rebuttal to such an absurd claim as Cramer's. I've been criticized for wasting good posts rebutting dopes like Mickey Kaus, but this Cramer guy makes Kaus look like a genius.

As to the issue, I've always found it funny that people who see themselves as libertarian-types hate the ACLU so much. Equally, it's a bit odd that some liberal-types who shouldn't like it do. But I guess that's just one of those quirks that make me hate people so damn much.
1.20.2006 6:59pm
Dilan Esper (mail) (www):

Not to tell you how to run your law practice, but comments about a female employee having changed her hairstyle or looks do not constitute actionable sexual harassment absent other, more unreasonable and offensive conduct.

To constitute sexual harassment, conduct must be "severe or pervasive" and must cause offense to the reasonable person (or reasonable woman, here in the Ninth Circuit).

I don't deny that sexual harassment laws, if overzealously enforced, can impinge on freedom of expression. But I have a feeling that less people would object to them if they were more familiar with what the law actually is, and the high threshold that has to be met to establish a sexual harassment claim. To hear the media tell it, an offhand stupid comment is "sexual harassment"-- in fact, that is not close to being the law.
1.20.2006 7:48pm
Edward A. Hoffman (mail):
Original TS (and Houston Lawyer):

Dilan is right. There is no "law that keeps you from offering your secretary perfectly civil compliments". Some people might withhold such complements due to an unreasonable misunderstanding of the law, but that fact is not an indictment of the law itself. There may be people who misunderstand other laws and therefor refrain from taking perfectly legal actions, but that doesn't mean the laws are to blame.
1.20.2006 9:48pm
Smithy (mail):
Clayton is right: the left has no interest in free speech per se, it is merely interested in protecting anti-American dissent. It does not support the rights of those who would speak out on behalf of Christ. Neither does it support those who would bear arms in defense of themsselves in their communities. Unless the speech is anti-Bush, anti-America, anti-Christ, or all of the above, they do not support its expression. They are the very embodiment of liberal hypocrisy.
1.20.2006 9:51pm
The Orginal TS (mail):
Edward, but in the corporate world, it's a matter of loss prevention. Given the potential liability in this area, many firms &companies create blanket rules that make whole classes of speech taboo. There's simply no upside for them in seeing how close they can sail into the wind without getting into trouble.

Remember, a sexual harrassment claim is in the eye of the beholder, even if that claim won't necessarily prevail. The last thing you ever want to be doing is trying to parse half-remembered statements to figure out whether they're actionable or not. Plus, reality is far more murky than the statement of facts in an opinion. A perfectly unobjectionable statement, may, for example, be rendered objectionable be an accompanying leer or hand gesture -- or at least an alleged leer or hand gesture.

The point here is that many organizations simply prefer to avoid the whole morass as much as possible. The farther they stay away from the line, the less chance they'll have a problem. This can often be taken to unfortunate extremes but I can't say that they are irrational extremes.
1.20.2006 10:47pm
DonBoy (mail) (www):
Cramer's been like this for a good 20 years; he was a notorious poster on Usenet political groups. (Google's Usenet archives are a drop in the bucket in this regard, for some reason.)
1.20.2006 11:27pm
TJ (mail):
Clayton is right: the left has no interest in free speech per se, it is merely interested in protecting anti-American dissent.

This doesn't seem to be a reasonable claim.

It does not support the rights of those who would speak out on behalf of Christ.

Popular speech almost never needs protection. And nor, generally, do the religious rights of a majority (also, try being a Hindu in Oregon some time and compare that to being a Baptist in California).

Unless the speech is anti-Bush, anti-America, anti-Christ, or all of the above, they do not support its expression.

This sentiment has been refuted many a time. Clearly you're upset by the ACLU.

They are the very embodiment of liberal hypocrisy.
1.21.2006 12:45am
Eugene Volokh (www):
Smithy: In this very post, I point to how the ACLU has worked to protect racist speech (with no anti-Bush, anti-America, or anti-Christ angle). In a post several days ago, I point to a page that lists many cases in which the ACLU has worked to protect religious speech (including the religious speech of Christians). Did you not read those posts, or at least not read them carefully? Or did you read them and just forget the facts they gave when making your own assertion, which proves to be factually mistaken?
1.21.2006 12:47am
Brian G (mail) (www):
Give me some cites to cases where the ACLU defend anti-homosexual speech. Those I'd like to see, if they even exist.
1.21.2006 12:54am
Edward A. Hoffman (mail):
The Original TS wrote:
Edward, but in the corporate world, it's a matter of loss prevention. Given the potential liability in this area, many firms &companies create blanket rules that make whole classes of speech taboo. There's simply no upside for them in seeing how close they can sail into the wind without getting into trouble.
If you know of any company that has created blanket rules from "offering perfectly civil compliments" (remember, this is what you claim the law prevents) to co-workers, please identify it and tell us what you know about the blanket rule it adopted. And please also explain why you believe implementing such a rule was a reasonable reaction to any statute or court decision.

Alternatively, perhaps you could tell us what you consider to be a "perfectly civil" compliment that can no longer be given. It may turn out that our disagreement is about what's reasonable rather than what the law says.
Remember, a sexual harrassment claim is in the eye of the beholder, even if that claim won't necessarily prevail. The last thing you ever want to be doing is trying to parse half-remembered statements to figure out whether they're actionable or not. Plus, reality is far more murky than the statement of facts in an opinion. A perfectly unobjectionable statement, may, for example, be rendered objectionable be an accompanying leer or hand gesture -- or at least an alleged leer or hand gesture.
The same could be said of claims of defamation, assault, fraud, perjury and any other crime or tort that can be comitted via speech. By your logic it would be reasonable for companies to bar almost all speech because someone might wrongfully accuse an employee of one of these offenses. Indeed, your logic suggests that many companies must already be doing this. Once again I challenge you to provide an example.

Besides, sexual harrassment claims are definitely not "in the eye of the beholder", at least in any legal sense. Such claims must involve conduct the average reasonable person would consider unacceptable before a plaintiff can win such a case. You're right that people will bring some legally baseless lawsuits, but that is true of almost any type of case.
The point here is that many organizations simply prefer to avoid the whole morass as much as possible. The farther they stay away from the line, the less chance they'll have a problem. This can often be taken to unfortunate extremes but I can't say that they are irrational extremes.
Since you are so sure that "many" organizations react this way, it should be easy for you to identify one or two and to demonstrate that they have actually reacted as you describe. I'll go out on a limb and predict that you won't have any verifiable examples to support your sweeping claims.
1.21.2006 1:51am
Eugene Volokh (www):
Brian G: I know of few cases in which someone was prosecuted, sued, or expelled over anti-homosexual speech (except for speech that falls within the existing First Amendment exceptions, such as threats or fighting words, and that is unprotected without regard for whether it's antigay or not). Look at the Supreme Court cases: Racist speech in Brandenburg, R.A.V, Black, and Forsyth County, anti-Semitic speech in the Skokie case; no anti-homosexual speech cases there, nor ones I've seen in lower courts. There was an incident I discussed here, but it was something of a rarity. There might be some other cases or incidents I've missed, but I doubt there are many. Without many governmental attempts to suppress such speech, it's hard for there to be much ACLU defense against such governmental attempts.

The closest I've seen to "anti-homosexual speech" cases have been cases involving exclusion of homosexuals from parades (Hurley) or organizations (the Boy Scouts). The ACLU's view has been that (1) a purely private parade has the right to exclude pro-gay speech (not quite "anti-homosexual speech" on the parade organizers' part but more like an anti-homosexuality editorial decision), but that (2) if certain parade organizers have consistently been given preferential status by the government they become state actors and are thus barred from excluding speech this way and (3) even purely private groups may not exclude gay members (and officials and scoutmasters). I think the ACLU is mistaken on 3, but it's not a ridiculous line for them to have drawn (discriminatory choices in which speech to allow are protected by the Free Speech Clause, discriminatory choices in which members to admit is not protected), and it's a line that would extend not just to sexual orientation discrimination but to other forms of discrimination as well. But, as I said, these weren't quite "anti-homosexual speech" cases.

But more broadly, if you think the ACLU has an ideology that leads it to defend virulently anti-black speech (as in R.A.V. v. City of St. Paul and Virginia v. Black) and virulently anti-Semitic speech (as in the Skokie case), but would lead it to balk at defending anti-gay speech, I'd like you to flesh your theory out a little bit. My sense is that if they're willing to defend bigoted speech generally, they'd defend anti-gay speech, too.
1.21.2006 1:58am
Allen Asch (mail) (www):
Brian G wrote:

Give me some cites to cases where the ACLU defend anti-homosexual speech. Those I'd like to see, if they even exist.

How about the recent ACLU support of Prof. Hans Hoppe at UNLV? For details, see this link:

Lecture causes dispute: UNLV accused of limiting free speech

Or, a more classic case was the ACLU amicus brief in Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 US 384 (1993). In that case, the ACLU supported the right of a Christian church to use public facilities to show a six part film series from Focus on The Family's James Dobson, entitled "Turn Your Heart Toward Home," including one part entitled "THE FAMILY UNDER FIRE." One Christian video site summarizes the "Turn Your Heart Toward Home" series by saying "James and Shirley Dobson challenge viewers to return to the traditional values upon which families are best created and nurtured."

Even though I've never seen the James Dobson series which the ACLU defended, I'm fairly confident it includes "anti-homosexual speech."

Hope that helps,

Allen Asch
1.21.2006 4:23am
Master Shake:

It is interesting that the limitations on free speech that the ACLU supports (i.e. workplace harrassment) are the ones with the most effect on the most people. Just yesterday I had to explain to my secretary (who is young and pretty) that there are legal reasons why my male law partners and I don't seem to notice changes in her hair or clothes styles (as opposed to typical male indifference). Civil penalties limit freedom of speech far more effectively than criminal ones.
I am guessing that your secretary was seriously creeped out by your "explanation".
1.21.2006 4:32am
Frank Drackmann (mail):
But if you find a pubic hair on your coke can, don't mention it, unless you want it brought up during your Supreme Court confirmation hearings. I still don't see how that was sexual harassment, seems Clarence Thomas was the harassed party in that case.
1.21.2006 8:04am
Hans Bader (mail):
Houston Lawyer and the Original TS are write about the overbreadth of harassment law. Edward A. Hoffman should read Eugene Volokh's harassment web sites to see examples of perfectly reasonable speech suppressed by harassment law.

It's true that, in theory, harassment law doesn't reach speech that isn't "pervasive" or "severe." But those are alternative, disjunctive tests for liability, meaning a non-severe comment can be a building block of a harassment claim if comments in the workplace are pervasive.

More importantly, harassment law is built on a totality-of-circumstances test under which the comments of each of a hundred different co-workers are grouped together in determining whether their comments are pervasive, even if the co-workers don't know of each others' comments. See Schwapp v. Avon (2d Cir. 1997) (grouping together a dozen different comments by different co-workers, many of which the plaintiff learned about second-hand or third-hand); but see Individual Rights Foundation amicus brief in support of defendant in Lyle v. Warner Bros. TV, pending before the California Supreme Court (arguing persuasively that both the logic of the antidiscrimination statutes and the First Amendment bar reliance on comments not directed at the plaintiff based on her sex, and citing federal appellate decisions giving limited weight to undirected comments because they are not made "because of sex" as Title VII mandates).

Even very trivially offensive comments, viewed in isolation, can be deemed actionable if they are "pervasive" (as they inevitably are -- if you say a million things in a year, and 10 or 15 of them are mildly offensive, that can be enough for a hostile environment claim, even though 99.9 percent of your comments are non-controversial. And reasonable minds may differ about whether 10 or 15 comments out of a million were offensive, even if the speaker reasonably thought they were not).

When I worked for a public interest law firm, no one contacted me complaining that their free speech rights were violated by the sort of statutes that offend the ACLU, like obscenity laws. Obscenity laws are so narrow that it takes effort to violate them.

Most of the calls I got were from people censored under harassment rules adopted in response to harassment laws. More speech is suppressed by harassment law than all other kinds of speech regulation put together. And Edward A. Hoffman's comparison of harassment law to defamation is inapt, since defamation defendants have all sorts of procedural protections (such as being entitled to know the exact language they are alleged to have used, de novo review on appeal, and partial exemptions for speech about public figures or about matters of public concern) that harassment defendants lack owing to courts' unwillingness to recognize First Amendment limits on harassment law. I don't know how many harassment cases I've read where the plaintiff alleged dirty talk without even dislosing the exact language, and I've talked to any number of employees fired for using supposed "innuendo" or "sexual language" that wasn't even specified (it could have been harmless references to sex ed or political discussion of the Lewinsky affair for all we knew).
1.21.2006 7:57pm
Edward A. Hoffman (mail):
Hans Bader's response sounds good, but it addresses an argument he invented instead of the one contained in my post.

I never denied that people self-censor in order to guard against a harassment charge. They certainly do and, when a man who would otherwise greet a female subordinate with something along the lines of "nice rack!" says "good morning" instead, the anti-harassment laws are working as intended. Reasonable people can disagree about whether this is a good idea, but that is not what I was talking about.

What I said earlier was that anti-harassment laws do not dissuade people from offering "perfectly civil compliments", as The Original TS had claimed. His post grossly overstates the effect such laws have in the real world, and all I did was challenge him to back up his factual claims.

Do people sometimes refrain from saying something close to the line for fear of a harassment claim? Sure. People also stay away from the line for fear of being accused of fraud, defamation, perjury, etc. People also do this with laws unrelated to speech, as when they refrain from committing a battery or a theft for fear of the legal consequences. Laws often over-deter, but that is insufficient reason to scrap those laws entirely.

Mr. Bader seems to believe the mere fact that people restrain themselves proves there is something wrong with the law, but the reason we have law at all is because we *want* people to restrain themselves in certain ways. Laws exist to deter certain types of conduct, and some of these types -- including harassment -- are carried out via the spoken word. If he believes there is something special about harassing speech that makes deterring it an illegitimate goal of the law then he should be able to explain his position. So far he has merely asserted it, which is hardly the same thing.

Saying that the First Amendment protects harassment because it is a form of speech is not sufficient because there are other forms of speech the law prevents with no real controversy. I can face legal consequences for disclosing trade secrets, making false advertising claims, threatening to kill someone, telling a foreign government how to evade our defenses, falsely accusing someone of a crime, etc. even though all of these actions would be in spoken form. The First Amendment is not absolute and there are categories of speech which can be regulated, so an argument that harassment isn't one of them must go beyond merely citing that amendment.

"Perfectly civil compliments" should not be deterred by the law and, as far as I know, there is no law which does so. The Original TS argued that such laws not only exist but have a pervasive impact on our culture, and I challenged him to back up this claim. I did not say that all harassment laws are perfect, nor did I deny that they sometimes have unintended consequences. But that is what Mr. Bader claims I said, and his rebuttal to this straw-man argument does nothing to address the one I actually made.
1.21.2006 8:53pm
Brian G (mail) (www):
I didn't know the ACLU was involved in Lamb's Chapel. I thought I knew that case inside and out considering it was an important case fro my argument at a moot court competition.

Also, thanks Allen Ach for those cites. Believe it or not, I love finding out I don't know things.
1.22.2006 3:09am
farmer56 (mail):

Ok I read your link. And so?It seems to say the govt cannot have an opinion on a persons expression of religion. I'll get back to you a link. But, I know I read somewhere tha Congress shall make no law prohibiting the free expression of Religion. I am almost sure that is in the Federal Constitution. But it seems that SCOTUS is not part of congress, but, a student lead prayer at a football game is 'congress'. The county courthouse is part of the federal Congress, but, SCOTUS is not. Tell me where SCOTUS gets its power to overturn the decissions of state and local govts that have no mention in Federal statute, or the Federal Constitution?

XIV section 1

That has been overturned by 5 citizens of the United States, when it was determined that Federal statute is superiour to the Constitution, when two girls were denied access to a govt funded education institution, because they did not meet the race reqirements mandated by the govt. Hum
1.23.2006 10:24am
Edward A. Hoffman (mail):

The courts can strike a statute which conflicts with the Constitution. Marbury v. Madison, 5. U.S. (1 Cranch) 137 (1803). If they couldn't, the Constitution would have no effect on what statutes could do and Congress would be able to establish an official religion, ban certain types of speech, take private property without paying just compensation, censor newspapers, etc. The judicial authority of which you complain is what has prevented such things from happening.

The First Amendment -- along with the rest of the Bill of Rights -- applies to state and local governments due to the 14th Amendment, which was enacted in 1868.

Federal courts can strike state or federal statutes for contravening the U.S. Constitution, and state courts can strike state (but not federal) statutes which contravene either the state or federal constitutions.

Courthouses are not part of Congress and neither are high school football games, but they are government functions and must not be run in a way that conflicts with the Constitution.

Students can pray at football games or anyplace else they want, but a public school cannot organize such prayers. Setting them up so they can be described as "student-led" doesn't allow the school to ignore this legal requirement. Prayers which are initiated by private individuals or entities are another matter and the courts would not intervene.
1.23.2006 4:04pm
farmer56 (mail):
Edward A Hoffman

You are a lawyer are a want to be. 1st Ammendment Congress shall make NO law. I did not study law, But I did read some histroy. Several states founded and supported churches after ratification of the constitution.

And, you do the same as most. Substitute rhe word Congress with government. you got to justify that little switch.

And You never addressed the Constitutional ban on discrimmination due to race. with the recent deccission that said "well we got affirmative action laws, guess, they trump that whole ammending the constitution thing. And what part of federal law or the constitution sets the age for execution.

Oh! forgot, Private Property??? Serious? SCOTUS just did like you did. substitute the phrase ' for public use' with, 'for public good'.

Keep your legs moving,cause your starting to sink
1.23.2006 5:37pm
The Orginal TS (mail):
Farmer56, I've asked you twice now to respond to my evidence demonstrating that the ACLU supports religious display and expression and you have not done so. I can only assumet that it is because you cannot.

Edward asked me for evidence of institutions that have broad anti-harrassment speech bans. Take a look at the Chicago Board of Trade's policy. It's quite long so I've bold some of the more sweeping language.

Harassment is visual, verbal, or physical conduct that is based on an individual's race, sexual orientation, color, religion, gender, national origin, age, disability, or other legally protected status and that:

creates an intimidating, hostile, or offensive working environment;

interferes with an individual's work performance; or
otherwise adversely affects an individual's employment opportunities or benefits.

Such conduct may include, but is not limited to, the following:

threatening, intimidating, or hostile acts based on an individual's race, sexual orientation, color, religion, gender, national origin, age, disability, or other legally protected status;

written, verbal, or graphic material viewed, stored, displayed, or circulated in the workplace (including via email/Internet) or placed on walls, bulletin boards, or elsewhere on our premises that degrades, shows hostility or aversion toward, or is based on an individual's or group's race, sexual orientation, color, religion, gender, marital status, national origin, age, disability, or other legally protected status;

verbal harassment, such as epithets, derogatory comments, slurs, negative stereotyping, off-color jokes, innuendos, propositions, threats, or suggestive or insulting sounds;

verbal, written, or graphic communication that relates to race, sexual orientation, color, religion, gender, national origin, age, disability, or other legally protected status;

physical harassment, such as assault, impeding or blocking movement, or any physical interference with normal work or movement when directed at an individual based on his/her race, sexual orientation, color, religion, gender, national origin, age, disability, or other legally protected status;

any request, promise, statement, threat, or comment directed at an employee regarding preferential treatment through increased pay, wages, position, promotion, or working conditions in exchange for sexual favors, accompanied with any promise, statement, threat, or comment of advising of adverse actions that may result due to denial of such favors; and

any other conduct that unreasonably interferes with an employee's performance of his or her job or creates an intimidating, hostile, or offensive work environment.

I think you'll agree, that's pretty sweeping language. As ridiculous as it is, read literaly, it bars any verbal communication that relates to gender. Of cours, it also bars a huge array of other expression and, apparently, would prevent someone from reading Modern Bride (let alone Cosmopolitan) on their lunch break.

Of course, not all institutions go this far. But there is certainly a tendency toward overbreadth. As I say, it's a business decision and there is little downside in being to restrictive.
1.23.2006 6:18pm
Edward A. Hoffman (mail):

Thank you for your oh-so-polite response.

You are entitled to your beliefs, of course, and the fact that you didn't attend law school has nothing to do with this fact. It does, however, seem to have a lot to do with your understanding of the issues about which you write. You seem to think they are simple and clear-cut, so that anyone who doesn't see them as you do must be either unintelligent or dishonest. This is simply not the case.

Yes, several states founded churches after the Constitution was ratified. At the time, states did not have to respect the First Amendment. That changed in 1868 when the Fourteenth Amendment took effect; since then, states have not been allowed to endorse any church or religion. Your argument is essentially that we should disregard the Fourteenth Amendment, but there is no reason why we should. You might feel that it should be repealed but, unless and until that happens, it is there and states must abide by it.

Whether you approve or not, though, hundreds of years of precedent hold that the Fisrt Amendment's reference to Congress is binding on other parts of the government. In other words, this is what the law currently says. There may be decent arguments that it shouldn't say this and that it should be changed, but you want to just disregard the current state of the law and proceed as if what matters is your vision of what the law should be rather than what courts have said it is. You would do better to argue that the courts should overrule their earlier interpretations of the Constituion than to argue that we should pretend those interpretations were never made.

Your position on racial discrimination is a reasonable one but your claim that I "never addressed" it is not. Your earlier post did not identify the case you had in mind; it simply stated a handful of facts without giving me any way to research the case and find out why it was decided the way you say it was. It's hard to respond to a claim about a case I know nothing about.

You ask "what part of federal law or the constitution sets the age for execution", and the answer is that it doesn't do so expressly. It also doesn't expressly say your freedom of speech (or mine) applies on-line. It doesn't give much detail about anything, since it is only a few pages long and cannot possibly be specific about every legal issue that comes along. It instead establishes general principles which must be followed. Courts are sometimes asked to decide if they have been followed properly, and when that happens they are presented with specific state actions which they must either affirm or strike down. That is why courts do so much of the line-drawing in our system. There is nothing wrong with this, since the courts draw lines when they make decisions you like as well as in decisions you don't.

Look again at my brief mention of private property. I didn't say the courts prevent it from being taken; I said they prevent it from being taken without fair payment. The recent Kelo decision allowed the government to take some properties for controversial reasons, but the government still has to pay for them. (Note that if the decision had gone the other way the Court would still have drawn a line, albeit one which you would have liked a lot better.) That's the point I made, but it isn't the one you replied to. Your aguments will be more credible if you respond to what others actually say.
1.23.2006 6:37pm
Edward A. Hoffman (mail):
The Original TS:

You say "Edward asked me for evidence of institutions that have broad anti-harrassment speech bans", but this is not what I asked for at all. I asked for evidence of institutions that had panned "perfectly civil compliments", which is what you originally claimed was commonplace. The excerpts you quote don't do that.

I agree that these regulations go too far by barring speech which is merely "based upon" someone's age, gender, etc., but this language is not required by any statute, regulation or court decision of which I am aware. It is simply an overreaction of the type I mentioned in a prior post. The fact that the Chicago Board of Trade overreacted to a court decision (I presume that's what happened) does not mean there is anything wrong with the decision itself.
1.23.2006 6:49pm
The Orginal TS (mail):
I asked for evidence of institutions that had panned "perfectly civil compliments", which is what you originally claimed was commonplace. The excerpts you quote don't do that.

Color me unconvinced -- CBOT bars its employs from making any verbal communication that relates to gender. This, unfortunately, sweeps up a fair number of innocuous compliments.

"Nice Dress!"
"You're fired!"

Anyway, the broader point is that these laws and institutional attempts to avoid running afoul of them, can have a substantial impact on speech in the workplace, an impact well beyond forbidding vicious verbal attacks and quid pro quo sexual harrassment.
1.23.2006 9:05pm
Edward A. Hoffman (mail):
The Original TS:

Even if the CBOT regs cover some civil compliments they are an overreaction and are not mandated by the law. The law is not to blame for CBOT's misunderstanding of it. Besides, I have a hard time believing that saying "Nice dress" would actually get anyone into trouble.

And as for the chilling effect you mention: how is this different from the chilling effect of laws governing fraud, false advertising, assault, trade secrets, confidentiality, etc. that I discussed before? They probably over-dissuade speech in many instances, but are they objectionable on that basis? If not, what is so different about laws re: workplace harassment? And if you think the other types of laws I mention are also objectionable, do you think the remedy is to do away with them completely?
1.23.2006 9:21pm
Ryan Waxx (mail):
I love the 'invincible defense' standard you all seem to hold the ACLU's actions to.

1. If a person makes a allegation about the ACLU's general stances, call the person uninformed if he doesn't provide examples.

2. If the person does provide examples, simply choose one and point out a minor flaw, ignoring the larger point. Alernatively, claim that the example isn't extreme enough.

3. If in the example provided the ACLU takes a clearly monstorous position, simply point out that well, there are many many branches of the ACLU who don't agree, and look here's a brief 40 years ago in Crotchscratch, Arizona which kinda sorta implies the opposite. Never ever engage the actual example.

4. If a person makes an allegation the ACLU's devotion to Civil liberties is... ahem... incomplete because they generally don't bother to defend evil whitey or that bad Jesus person or the 2nd amendment, simply say that they don't have the resources to defend all American Civil Liberties(and what pray tell does their acronym stand for, again?), it's just conincidence.

Note: be careful not to laugh out loud while claiming that the ACLU just *loves* to defend non-leftist causes, that will give away the game too early. Bonus points for mentioning the Crotchscratch, AZ descision.

5. You've won! If the ACLU doesn't act, see 4. If they do act, see 1, unless examples are provided in which case go to 2 or 3. Rinse and repeat endlessly.

That's an impressive defense you have erected. If you were defending the Aryan Nation with those required burdens of proof, I doubt anyone could satisfy you that they were particularly harmful or even that they didn't like blacks.

And then you could smugly state that your opponent suffers from ANDS. Great job! Keep pelting the peasants from atop the tower of your arrogance! That'll show them!

For extra ego points: Pretend that the only time the ACLU argues against religion is when the government is directly involved. Convienently ignore the fact that nearly no activity on the face of the earth is unconnected to goverment in some form or another, and that the ACLU takes advantage of this to attack all religion that they can find some obscure link to government with.

We are educated in government and government-funded schools, walk on government streets, shop and eat and work in government-regulated businesses, and join clubs that may have some future contact with the goverment (such as the Boy Scouts being mentored by the military for their Jamboree). EVERYTHING is linked to government if you look hard enough.

Maybe if you go into your backyard, dig a very deep hole (after making sure no government cables are below the ground), and put up a manger scene where no one can see it, then the ACLU can't find some hook to use the 'government involvement' excuse to ban it. I exaggerate, of course, but not by a whole lot.
1.24.2006 12:56am
Allen Asch (mail) (www):
Ryan Waxx,

I noticed your criticisms of the ACLU provided no examples of any actual ACLU actions. Without providing any examples, you didn't even give your opponents a chance to start "ignoring the larger point" or refusing to "ever engage the actual example." Lucky for you, you preemptively determined your opponents are impervious to facts because your argument is entirely fact free.

My opposition to your argument, on the other hand, is entirely fact based. For example, I have asserted that the ACLU fights just as hard to defend individual free exercise of religion as it does to protect against unconstitutional government promotion of religion. In support of my assertion, I provided a few of the numerous examples of the ACLU protecting the free speech and free exercise rights of Christians. See this link:

The ACLU Defends Christians' Free Speech and Free Exercise Rights

The ACLU's commitment in these cases to free speech and free exercise rights, regardless of the beliefs being protected, religious or otherwise, is consistent with what I have seen in over twenty years of being an ACLU member, nearly half that time as a cooperating attorney. The ACLU's commitment to civil liberties has aligned it in lobbying and litigation over the years with such varied people/groups as Oliver North, Jerry Falwell, Bob Barr, Dick Armey, the KKK, the American Nazi Party, the NRA, the Democratic Party, the Republican Party, the Green Party, the Natural Law Party, the Conservative Party, the Libertarian Party, and the U.S. Taxpayers Party, among others.

The ACLU finds itself aligned with such a wide variety of different partisan personalities and parties because the ACLU acts on principles like free speech, free exercise of religion, and due process that apply to all people regardless of political persuasion. When Oliver North's due process rights are violated, the ACLU sides with Oliver North. When Jerry Falwell's free exercise rights are violated, the ACLU sides with Jerry Falwell. When the KKK's free speech rights are violated, the ACLU sides with the KKK.

Sorry, Red Waxx, but those are just the facts.

Allen Asch
1.24.2006 5:00am
Hans Bader (mail):
The idea that the ACLU only opposes government religious speech, and has never sought to silence private religious speech, is just wrong. And Ryan Waxx is correct.

Here are some examples.

In the Lubbock Civil Liberties Union case, an ACLU affiliate, with the blessing of the national ACLU, got a federal appeals court to rule that religious speech by students, without any assistance from state actors or school employees, was restricted by the Establishment Clause. (That case is now recognized as having been abrogated by subsequent Supreme Court decisions holding that the Free Exercise Clause protects, and the Establishment Clause does not prohibit, private religious speech, even when it occurs in state-controlled settings like the public schools. Thus, student-initiated bible studies are protected by the free-speech and free-exercise clauses, not banned by the Establishment Clause).

In the Meltebeke case, the ACLU argued that the religious speech of a purely private small business was constrained by the Establishment Clause.

By the way, the Supreme Court has held over and over again that the equal protection clause only reaches state discrimination, not private discrimination (this is called the state-action doctrine), so don't try to claim that the ACLU is just "balancing" free speech and equal protection rights when it attempts to silence non-governmental speakers whose speech supposedly offends religious or racial minorities who overhear such speech. There are no competing constitutional rights to "balance" in such cases.
1.24.2006 11:09am
Allen Asch (mail) (www):
Hans Bader,

I'm not sure if your anti-ACLU post is based on a misunderstanding of the ACLU, a misunderstanding of the two examples you cited, or both.

First, the ACLU does not just defend the fundamental rights guaranteed by the US Constitution. Long ago, the ACLU's members through their representatives on the national board decided to support the liberties guaranteed by our civil rights laws as well. See, for example, one of the ACLU's standard "interest of amici" statements saying the ACLU is "dedicated to the principles of liberty and equality embodied in the Constitution and this nation's civil rights laws."

Thus, while it's true that religious harassment of an employee by a private employer does not violate the US Constitution, it still implicates those civil rights laws the ACLU is dedicated to protecting.

And, the case you cite, Meltebeke v. Oregon Bureau of Labor and Industries, 322 Or. 132 (1995), seems like clear religious harassment to me. Here are a few facts from the case:

"In the month during which Employer employed Complainant, Employer invited him to attend church eight times (twice a week). The first such request occurred two days after Complainant was hired. Complainant repeatedly told Employer that he 'could not make it' but that he 'would think about it.' He never did attend. Employer also tried to call Complainant at home to encourage him to attend church.

On more than one occasion, Employer told Complainant that he was a sinner who would go to hell, because he slept with his fiancee and because he did not attend church. Employer made similar remarks to the fiancee, whom Complainant later married, and to Complainant's mother. Employer told Complainant that 'he had to be a good Christian to be a good painter, and that he should go to church to be a good painter.' He also told Complainant that he wanted to work with a Christian, because he believed that a Christian 'wouldn't be stealing stuff' while working 'in people's homes, inside repainting.'"

Wouldn't a reasonable person find the actions of the employer to be religious harassment? The court thought so...

As for Lubbock Civil Liberties Union v. Lubbock Ind. Sch. Dist., 669 F.2d 1038 (5th Cir. 1982), you did not accurately describe the case when claiming it involved "religious speech by students, without any assistance from state actors or school employees." Reading that case, I find that the school supervised prayer meetings to which you inaccurately refer were only the last pretextual attempt by the school to cover the school's endorsement of religion. Here are some facts from the case:

"the LCLU filed suit seeking an end to various practices in the District which it contended were unconstitutional violations of the establishment clause of the first amendment. Included in these practices were morning Bible readings over school public address systems, classroom prayers led by teachers, a period of silent prayer ended by 'Amen' over school public address systems and distribution of "Gideon" Bibles to fifth and sixth grade students." (footnote omitted)

The court found that the school supervised prayer meetings in that context might be seen by impressionable students as a government endorsement of religion. I happen to disagree with some of the ACLU positions in equal access cases (see, e.g., my December 30, 2003 post titled " Is the ACLU a 'partisan' organization? How much do I agree with the ACLU?" on the archived ACLU message board thread at: this link). The ACLU is a little more sensitive than I am to the inability of impressionable students to tell the difference between government and private religion. Despite that difference, however, Lubbock Civil Liberties Union seems like the best argument in favor of the ACLU's position.

I hope these facts help clear up your misconceptions,

Allen Asch
1.24.2006 1:34pm
Hans Bader (mail):
I think I did accurately characterize Meltebeke, but I may have forgotten some relevant facts in Lubbock, as you observe.

You've left out the fact that the court actually ruled in favor of the business owner accused of religious harassment in the Meltebeke case, based on his religious-freedom rights under the state constitution, albeit on narrow grounds. (Judge Unis, specially concurring, relied on another theory for ruling in favor of the business owner, and would have found that Oregon's religious harassment rule violated the free-speech clause of the state constitution).

In Meltebeke, the state and the business owner, Meltebeke, disagreed about whether the state's interest in eradicating religious harassment outweighed Meltebeke's right to aggressively proselytize his religion.

The court ultimately ruled for the business owner, Meltebeke on narrow grounds (reading into Oregon's religious harassment rule, on state-constitutional religious-freedom grounds, a scienter requirement (i.e., that Meltebeke had to be aware of the hostile environment he was creating through his speech before being subject to liability) that is lacking in harassment rules generally, compare Ellison v. Brady (9th Cir. 1991) (no defense that harasser did not know he was creating a hostile environment).

But none of the state supreme court justices bought into the idea promoted by the ACLU in its amicus brief that the establishment clause itself (as opposed to the state's regulatory interests in preventing discrimination) furnished a justification for overriding the business owner's religious freedom. That is a hair-brained idea, since the establishment clause only limits the government's ability to speak on religious matters, not private individuals or institutions. (Kelly Ford of Beaverton, Oregon, counsel for Meltebeke, sent me the ACLU's amicus brief, which I read at the time).

With respect to the lawsuit brought by the Lubbock Civil Liberties Union, it appears that there were additional practices by the school that did violate the Establishment Clause, in addition to practices that didn't but were banned by the overbroad relief granted by the courts, which overreacted by restricting even private religious speech by students. But innocent practices cannot be banned to prevent the recurrence of legal violations, as the ACLU has admitted in other contexts, see, e.g., NAACP v. Claiborne Hardware (1982).

By the way, the fact that students may have supervised while praying isn't sufficient to convert their praying into state action. Students are under continual supervision by school employees when in school, but that doesn't mean their speech can be imputed to the school or the state. See, e.g., UWM Post, Inc. v. Board of Regents, 774 F.Supp. 1163 (E.D. Wis. 1991). If their speech could be imputed to the school on that basis, students would have very little free speech rights at all, since many appeals courts have held (as the Fifth Circuit did in Estiverne) that state actors and institutions have no free speech rights.

It's been years since I read the Lubbock case, and truth be told, the main thing I remember from the Brandon Board of Education and Lubbock line of cases was their objectionable idea that (to quote Judge Kaufman in Brandon) "sensitive establishment clause considerations" override the rights of purely private speakers to express their religious convictions in the public schools.

So thanks for pointing out additional relevant facts. It seems that after a hiatus of several years in litigating Section 1983 claims, my knowledge of First Amendment law in the educational context may be getting a bit rusty.
1.25.2006 10:57am