The Volokh Conspiracy

who wants to save the aclu from what and why?

thedaddy

Whoop de doo; Neither side in this little battle is interested in addressing the ACLU's real problem, the glaring lack of principle that cripples the organization. Sure, it's entertaining to see the ACLU fighting over whether to censor it's own employees, but it's a tempest in a teacup compared to their opting out of the biggest civil liberties battles of our time, merely because they happen to be civil liberties that aren't terribly popular with "liberals".

Right, as the previous post hints at (if I had read it) the save the aclu people object to Romero's (new director) apparent private advice to the Ford Foundation to parrot the wording of the patriot act in their grants (while the aclu was busy opposing it) and signing agreements with the bush administration stating that the ACLU wouldn't employ anyone on the terrorist watch lists, which as the government seems to have started threatening some attorney's with this (the guy representing a gitmo inmate somehow involved with the 3 who killed themselves)could be problematic.

They also object to the secret agreement that Romero made ACLU staff sign which made them agree to pervasive monitoring of their emails, didn't provide whistleblower protections and apparently was not supposed to be revealed to the board. Once again seemingly hypocritical in light of the ACLU's positions on privacy and dissent.

Finally and most disturbingly was the effort to sanction board members for openly objecting to some of these other policies. In fact their was resolution recommended by committee stating that an ACLU board member may not publicly critisize the ACLU board or staff and could be sanctioned for such behavior.

Also Romero seems to have been dishonest in his role in several of these incidents.
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At the time the attempts to silence some of the board members first came to light I was vaguely active in an ACLU chapter on campus and I was highly disappointed that almost no one else seemed to be concerned. While I disagree with it I do understand why some people have this image of the ACLU as just a liberal cheerleader as the students involved in the club were far more inclined to just follow the organization and in solidarity oppose bush/republican policies on the war on terror rather than engage in serious debate about freedoms and the choices made by the national organization.

However, this is just the inescapable difficulty with abstract things like rights, freedom and dissent. People naturally understand 'them vs. us' but abstract concepts like the freedom to dissent are much harder for people to wrap their minds around, especially when these rights come at a cost to 'us' and might benefit 'them'. In other words (surprise surprise) ACLU chapters on campus are just another college club with people more interested in getting together, having snacks and getting worked up about what the other people are doing rather than discussing issues which might reveal serious dissent in the organization (people prefer to agree than to argue...well not me but most people).

Anyway despite this I still think the ACLU is very much an organization worth saving and I'm very much on the side of the save the aclu people. Still if you're a libertarian (or have sympathies) but think the ACLU's liberal bent makes it a lost cause then you really need to think about supporting a more conservative analog of the ACLU as right now I don't know of anyone else that people can count on to defend the unpopular free speech, free exercisce and other rights. Sure their are conservative organizations that will defend the rights of conservatives to express their views but I don't know any who will say provide legal defense to the student expressing the pro-drug message in school.

I think the anti-Second Amendment stance of the ACLU is what everyone here dislikes.

Do you mean the "non-Second Amendment stance"?

Also I'm just taking it for granted you are right about the ACLU and the 2nd ammendment not verifying that they oppose it.

Well, the ACLU focuses on some civil liberties, certainly not the economic ones. Of course, there are other groups that focus on the economic ones (or 2nd Amendment ones) and not other civil liberties. A full libertarian would presumably support all these groups.

logicnazi,

a country where an individual has no right to own a gun very quickly may become a country where an individual has none of the rights that the ACLU claims to protect. Sadly we are seeing this in the UK a bit as both gun rights and free speech erode (not to sound alarmist - its happeneing slowly and may reverse). Look to France and Germany for previous experience with this. The first act of all tyrants is to disarm the populace.

Gun rights protect all other rights, and as a government becomes more totalitarian it removes the right to protect and defend the individual (self-defense, home-defense, family-defense but also defense against the government) and replaces this right with government protection (must call 911 for help, must get government aid not a job, government provides healthcare, childcare, etc).

Gun rights are absolutely key.

As to protection of free speech and others, there are individual orgs for each of those rights and various combinations. See FIRE for example, for a better defender of free speech than the ACLU sometimes is. However, I agree that one should support a group for doing the right thing, even as one should challenge them when they do wrong. You are welcome to support the ACLU and should do so if you think they are generally good. I question them, they began as and have often appeared to remain, a socialist organization.

"Also I'm surprised at the hate for the ACLU on a largely libertarian website. "

I'm not sure what you mean, given the number of posts from a Volokh defending the ACLU against the latest goofy misrepresentation of the religious right.

"In other words, they don't take an active stance on the 2nd Amendment except to be fully and totally against protecting it."

I hardly see the sinister overtone here you obviously manage to invent. It's not like the ACLU runs around working gung-ho against gun rights either: comparing them to socialists who support free speach implies that they aren't just neutral on gun rights, but actively opposed.

And the 1st really can't be read as a collective right. But almost any legal scholar would agree that the 2nd can, even if they don't think that's the correct reading.

I actually researched how the ACLU came to its position on the Second. I enterviewed ex-National Board members and examined ACLU documents from the Seeley G. Mudd library. The short version is that the ACLU Board decided to review its relationship with the National Coalition to Ban Handguns (that's close to the name) back in the late 70's early 80's timeframe. Opening the issue up led some members to question the ACLU position itself. The Due Process Committee reviewed scholarship and concluded that the 2nd WAS an individual right. This finding didn't go over well because of its potential effect on donors and the idea pushed by the majority that guns were ipso facto a threat to civil liberties - how could "good liberals" support people having guns? The Due Process Committee was essentially told to go back and rethink things and come up with the right answer, which it did. Pretty appalling.

The ACLU is decent on the 1st Amendment but otherwise, operates as an auxillary of the communitarian/socialist wing of the Democratic Party, coming up with things like a "constitutional right" to health care. That's why I finally quit after being a member for 19 years.

> And the 1st really can't be read as a collective right. But almost any legal scholar would agree that the 2nd can

Really? Let's review the actual text.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.

It says that "the people" have a right to peaceably assemble and arguably to petition.

The assertion that the 1st is necessarily an individual right tells us that "the people" is necessarily individual.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Hmm - "the people" have a right to keep and bear. If "the people" is necessarily individual in the first amendment, how could "the people" become possibly collective by the very next sentence?

Note that the first says nothing about who has the rights mentioned before "peaceably to assemble". If we were to interpret those rights as some would have us interpret the 2nd, that "doesn't say who" would imply that govt can choose who has those rights.

The arguments that the 2nd is collective and the first is individual has everything to do with the subject of the amendments and nothing to do with the actual amendments. It's the "the constitution protects things I care about" theory of interpretation.

"Also I'm surprised at the hate for the ACLU on a largely libertarian website. "

I'm not sure what you mean, given the number of posts from a Volokh defending the ACLU against the latest goofy misrepresentation of the religious right.

I assume he means the hate for the ACLU one sees in the comments, not hate for the ACLU from the VC bloggers themselves, of which I see very little.

"Do you mean the "non-Second Amendment stance"?" They've helped spread the lie that the 2nd Amendment's "right of the people" = a collective right = a "right" of the government. This nullifies the 2nd Amendment: governments do not have rights, and governments do not need rights against themselves.

"Gun rights are absolutely key" sounds extreme, but follow the consequences of denying gun rights:

1. This establishes a precedent for standing a Constitutional protection for individual rights on it's head and turning it into a nullity.

2. It doesn't merely take away the right to own guns, it infringes the right of self-defense, by removing the means for weaker people to defend themselves. The British government has now gone beyond banning guns to trying to ban knives, and prosecuting homeowners who successfully defend themselves against intruders.

The effect, and quite possibly the real goal, is to make people dependent upon the government for their very lives. What will a population of sheep care about their other rights?

Cornellian: Why be surprised at the hostility (or even hate) for the ACLU among the commenters on this site? First, the site isn't quite "largely libertarian"; most of us have libertarian sympathies in many respects, but most of us are not hard-core libertarians. Second, the commenters on the site understandably come from an even broader range of perspectives than do the posters. The only thing that should ever be surprising from our commenters is unanimity.

I don't particularly hate the ACLU, but I'm not very impressed with their attempt to parade as the principled defender of civil liberties, while picking and chosing which liberties they'll defend. It more or less forces them to define away the civil liberties they don't want to defend, (Hence Strossen's "not coextensive" remarks.) which, like it or not, IS an attack on those liberties.

EV,

I usually pay little attention to who said what in the comments, since the point is what is being said, not who said it. However, I think the sequence went like this:

1) Poster 1 says he's surprised at the hostility to the ACLU around here given the libertarian bent of the VC

2) Poster 2 says what hostility?

3) I say I think Poster 1 was referring to the commenters, not the bloggers, and that I don't see all that much hostility to the ACLU by the bloggers. I.e. there's plenty of hostility commenters

4) You say not all the bloggers are hard core libertarians, and the commenters have a much wider range of viewpoints than the bloggers (not surprisingly since the commenters greatly outnumber the bloggers) hence there's no reason to be surprised at the animosity towards the ACLU displayed by many commenters.

All of these are perfectly good points. I'll just add that the ACLU position isn't always (or even frequently) the libertarian one so even "hard core libertarians" could find plenty to criticize, even if they're not likely to do so with quite the degree of venom displayed by a few of the posters around here, such as the one who keeps insisting that the ACLU is pro-pedophile. Maybe Poster 1 can speak up and address #4.

Perhaps the antipathy to the ACLU is a result of its hypocrisy on free speech issues, and the fact that it now sometimes supports restrictions on so-called hate speech and anti-abortion speech, even over the protests of some of its own local affiliates.

And the fact that the ACLU, self-proclaimed champion of free speech, doesn’t believe in free speech when it’s aimed at the ACLU itself, even though it believes that other private organizations should be compelled by law to tolerate dissent in their ranks or face a lawsuit.

The Supreme Court has ruled that the First Amendment and the Equal Protection Clause of the Constitution only restrict the conduct of state actors. Private associations are thus free to condition membership on not publicly criticizing the association’s positions or leaders, and to require that members share a common religion or other characteristic (unless the characteristic is prohibited by an antidiscrimination statute that does not intrude too deeply on the association’s First Amendment freedom of association). This is called the “state action” doctrine. It greatly limits federal courts’ control over private institutions, promoting freedom of association and a free market economy.

The ACLU, however, opposes the state action doctrine. It believes that private institutions, such as shopping centers and private colleges, should be subject to restrictions under the First Amendment, and that even the smallest businesses or associations should be subject to the Equal Protection Clause. For example, it argued in a Connecticut case that the Klan should be able to demonstrate in a private shopping center, overriding the property and free association rights of its owners, and recently persuaded the New Jersey courts to use the New Jersey State Constitution to force private housing developments and shopping centers to host political advocacy groups. Similarly, the ACLU argued that the boy scouts should not be able to dictate membership criteria, a position the U.S. Supreme Court rejected in 2000 on First Amendment freedom of association grounds. And it unsuccessfully urged the Oregon Supreme Court to hold that the owner of a small business violates the Constitution’s Establishment Clause, not just state law, by engaging in workplace religious proselytizing, in the 1995 Meltebeke case.

However, there is one special private organization that the ACLU believes should be exempt from judicial oversight so that it can restrict its members’ speech: the ACLU itself. The ACLU’s leader, Anthony Romero, has apparently created investigatory files on dissident members of the ACLU’s national board, who have criticized the ACLU for failing to oppose restrictions on politically incorrect speech, like anti-abortion ads. And he is pushing to forbid board members from criticizing the ACLU’s board or its staff, arguing that such criticism makes “fund-raising” harder for the ACLU. This is a very ironic position for an organization that claims to be a champion of free speech to take.

It is especially ironic given that the ACLU has repudiated far more limited speech restrictions it endorsed in the past. The ACLU continually depicts as a shameful cave-in to McCarthyism the ACLU’s own Post-World War II policy of excluding supporters of totalitarian movements from its board. That prohibition had the effect of excluding several communist ACLU board members who had backed Stalin’s dictatorship and previously supported the Hitler-Stalin nonaggression pact. Apparently, the ACLU believes in free speech for totalitarians, but not for First Amendment advocates.

Romero justifies the proposed speech restriction by pointing to a supposed need to balance “conflicting” rights. "Take hate speech," he said. "While believing in free speech, we do not believe in or condone speech that attacks minorities."

This is a frequent ACLU tactic, to argue that free speech is overridden by a competing “right” when the speech becomes inconvenient. The ACLU’s “balancing” is applied in an inconsistent and unprincipled manner, based on how much it sympathizes with the target of the speech.

For example, the ACLU successfully argued that Nazis advocating genocide should be allowed to march through the town of Skokie, home to many Holocaust survivors, saying that the Nazis’ free speech rights outweighed the interests of the Holocaust survivors. And it later sued a private restaurant, the Alpine Village Inn in Torrance, California, for refusing to serve neo-Nazis because they insisted on wearing swastikas while dining, trampling on the restaurant owners’ freedom of conscience and their private property rights.

But in another case, Aguilar v. Avis Rent-A-Car System, it filed an amicus brief supporting a state court’s gag order banning an employee from uttering even a single racial slur, based on racial harassment that was found to have occurred years earlier, even if no other employee ever heard the slur. The ACLU argued that such slurs could be banned because they were just “verbal acts” of “discrimination” against Hispanics, rather than “pure speech.” The state court accepted the “discrimination” rationale for restricting speech, even though federal courts have consistently held that a single slur does not constitute discriminatory harassment, either by itself or in conjunction with harassment that occurred long ago, and is irrelevant if other employees are not aware of it (and even though the employee accused of harassment was himself married to a Hispanic and the soccer coach of the very employees who accused him of harassment).

“Balancing rights” enables the ACLU to skirt principle to reach whatever pre-ordained politically correct result it wants.

And many former ACLU supporters, understandably, are offended by that, and by the ACLU's antipathy to free speech in many contexts.

Compare this:

What about those who are morally or religiously opposed to abortion?

Our tax dollars fund many programs that individual people oppose. For example, those who oppose war on moral or religious grounds pay taxes that are applied to military programs. The congressional bans on abortion funding impose a particular religious or moral viewpoint on those women who rely on government-funded health care.

to this (PDF):

Significantly, many advocates of vouchers for religious schools misleadingly label them "school-choice" or "parental-choice" measures.... they should not get away with this Orwellian "newspeak."...

As a civil-liberties organization, the American Civil Liberties Union, or ACLU, opposes vouchers whenever they interfere with the fundamental rights of students, parents, and others. The typical voucher program interferes with several fundamental rights: most importantly, the right to be free from government-supported religion...

Laundering public funds by passing them through parents' pockets does not cleanse voucher programs of their constitutional impurity: Significant tax dollars eventually will be paid directly to parochial schools...

I especially love Ms. Strossen's condemnation of the use of the word "choice", since in the ACLU's wordview it's supposed to be an exclusive synonymn for abortion. This allows them to be anti-choice on just about every other issue, but be smug in their own moral superiority.

I'm a (small "l") libertarian, and I hate the ACLU.

"The ACLU, however, opposes the state action doctrine. It believes that private institutions, such as shopping centers and private colleges, should be subject to restrictions under the First Amendment, and that even the smallest businesses or associations should be subject to the Equal Protection Clause. For example, it argued in a Connecticut case that the Klan should be able to demonstrate in a private shopping center, overriding the property and free association rights of its owners, and recently persuaded the New Jersey courts to use the New Jersey State Constitution to force private housing developments and shopping centers to host political advocacy groups. Similarly, the ACLU argued that the boy scouts should not be able to dictate membership criteria, a position the U.S. Supreme Court rejected in 2000 on First Amendment freedom of association grounds. And it unsuccessfully urged the Oregon Supreme Court to hold that the owner of a small business violates the Constitution’s Establishment Clause, not just state law, by engaging in workplace religious proselytizing, in the 1995 Meltebeke case."


To be fair, I believe the ACLU's position in the Boy Scouts case (Dale?) was actually based on the state action doctrine, arguing that the unique access the Scouts get to public fora (above that of other groups) make the Scouts' actions part and parcel of those of the state, and also that said fora are places of public accomodation and thus regulable by antidiscrimination law. You may disagree, but it's not a crazy interpretation, and certainly makes your claim less credible. I would be interested in learning the particulars of the Connecticut case you mention. It does not sound like a common (or constitutionally accurate) ACLU position. Do you have a cite for the Meltebeke case you mention--forgive me for asking, but I see many positions inaccurately attributed to the ACLU, and I am genuinely curious as a general supporter of its stances to see if it is really doing this. Perhaps Eugene is familiar with the record on these matters. Also, for the record, I do agree with EV and Akhil Amar that the 2nd Amendment does protect an individual right to bear firearms that should be incorporated through the 14th amendment--however, I imagine that some scope for some regulation is permissible under their views, e.g. that it would probably not violate the 2d to ban private ownership of nuclear missile submarines. I don't think the ACLU is obligated to agree with that stance, and I think there are reasonable, if ultimately unpersuasive arguments stemming from the 2d Am text that cut the other way. I don't think that makes the ACLU a protector only of civil liberties or people that it likes. I'm pretty sure no one at the ACLU *liked* the Nazis marching in Skokie--what decent person would? They defended the principle because the ACLU thought that to be what the law commands/permits. If they think the 2d Am.'s protections are less clear, they are in agreement with most courts and many rational people.

One last post--my apologies, that is not the amicus brief from Meltebeke, but from a later case.

So—can anyone point to documentation of what the ACLU's stance in Meltebeke was? In a Google search I was able to find Mr. Bader's claim (another version of his post above) and an op-ed by Ann Coulter that made the same claim without an underlying citation.

Bader post

Is there really an example of the ACLU seriously claiming that the establishment clause bars religious conduct by private employers? I have a lot of trouble believing this without seeing a document.

As a civil-liberties organization, the American Civil Liberties Union, or ACLU, opposes [school] vouchers whenever they interfere with the fundamental rights of students, parents, and others.

Back when the ACLU fought for the right of Nazis to parade through the Jewish Chicago suburb of Skokie it seemed they were neutral and absolutist when it came to supporting rights. But today they apparently toe the entire leftist Democratic party line. What happened and when?

Contrary to what Thales says, the Meltebeke case I described did not involve religious activity by a government entity. I have not misstated the facts of the case, as he and Plunge misguidedly suggest.

The facts of the Meltebeke case can be found at 903 P.2d 351 (Or. 1995) and 852 P.2d 859 (Or. App. 1993).

As those decisions plainly show, it involved religious proselytizing by a PRIVATE EMPLOYER with no nexus to any government agency (unless you consider a private business that is fined by a government agency for religious proselytizing to somehow be converted thereby into a government agency itself).

The issue in the case was whether the state Bureau of Labor and Industries acted properly in fining a small private business for religious harassment based on recurrent religious proselytizing by the proprietor of the small business.

The state court of appeals and state supreme court found that the agency overstepped its bounds in finding the small business, citing state constitutional guarantees of religious freedom. A concurring judge on the state supreme court, Justice Unis, argued that the fine also violated the state constitution's free speech guarantee.

The ACLU's amicus brief in the Meltebeke case argued not only that the religious proselytizing was properly fined as religious harassment (an argument that was rejected by the courts on civil liberties grounds, but at least had the virtue of being accepted by a dissenting judge on the court of appeals, and by the state's Bureau of Labor and Industries), but also, far more dubiously, claimed that the establishment clause overrode the private employer's religious freedom rights.

It is black-letter law that the establishment clause does not reach private religious conduct, even if it is arguably harassing or annoying, and that there is a difference between state-sponsored religious expression, which the Establishment Clause rightly restricts, and private religious expression, which the Free Exercise and Free Speech Clauses generally protect.

The ACLU frequently seems not to understand this basic, well-settled legal distinction, which is rooted in the state-action doctrine. See, e.g., the Supreme Court's Mergens v. Board of Education decision (noting the distinction between private religious expression, which the Constitution protects, and state religious expression, which the Establishment Clause forbids); U.S. v. Morrison (2000) (noting that private conduct, no matter how wrongful or discriminatory, does not implicate the constitution).

The Establishment Clause is simply irrelevant in cases involving private religious conduct or speech.

It is clear from the language in the Meltebeke decision itself that the state supreme court found that there was no state involvement in the religious expression that the state agency and the ACLU sought to restrict in that case, and that the establishment clause therefore had no applicability.

The court said that "in this case, there is no overt religious symbolism expressed or supported BY THE GOVERNMENT," and the religious expression at issue involved "no agent of the GOVERNMENT" or "acts of the GOVERNMENT." Meltebeke v. Bureau of Labor and Industries, 903 P.2d 351, 361 n. 15 (1995) (emphasis added).

Meltebeke was unlike the Lubbock CLU case, which involved improper state support for religious activities (although that court decision also wrongly suggested that the Establishment Clause restricts even private religious expression by students -- a position squarely rejected by the Supreme Court in its Mergens, Widmar, and Rosenberger decisions and by the Congress statutorily in the Equal Access Act, which protects students' private religious expression in the schools, and which was upheld by the Supreme Court against an establishment-clause challenge).

Hans Bader,

Please note the short post where I noted my mistake in posting excerpts from a different Oregon case. I accept your characterization of the facts of Meltebeke. What I and others would like is documentary support for this proposition:

"[The ACLU's brief] also, far more dubiously, claimed that the establishment clause overrode the private employer's religious freedom rights."


If the ACLU took this position under the facts as you state them, I would agree that it is wrong as a matter of establishment clause and free speech doctrine. Can you show us that the ACLU in fact took this position?

Also, your parenthetical after Morrison is a bit too quick:

"U.S. v. Morrison (2000) (noting that private conduct, no matter how wrongful or discriminatory, does not implicate the constitution)."

In fact, the 13th Amendment and legislation enacted pursuant to section 2 thereof does regulate private conduct involving slavery or the badges and incidents of slavery, which includes some forms of private racial discrimination, according to black letter constitutional law.

In my experience, the ACLU lawyers generally have an excellent understanding of the state action doctrine (and the above point where the Constitution allows private actors to violate the 13th amendment and accompanying legislation). This is key to the ACLU's actual winning of cases and recovery of its fees. Do they test borderline cases involving the public and private nexus? Of course. If there's a good argument that government collusion or entwinement with private actors violates the Constitution, this argument should be tested in court. When I interned for one branch, the first question asked in a case intake was "is there state action?"

It is clear from the language in the Meltebeke decision itself that the state supreme court found that there was no state involvement in the religious expression that the state agency and the ACLU sought to restrict in that case, and that the establishment clause therefore had no applicability.

And where does the language in that case suggest that the ACLU took the position that you ascribe to it? Nor do I think the language is as explicit as you suggest it is on the merits of the putative claim.

Allen Asch,

I agree. That is the thread I mentioned, thanks for the link, and I should have credited you with pointing out (with citations, etc.) the inaccuracies in Bader's characterization of the Lubbock case.

"However, the ACLU is the primary organization who is defending the unpopular speech claims "

I'm not sure of this. I know thefire.org has done a heck of a lot of work in the same area, and it seems to me with a lot less political bias.

"However, the ACLU is the primary organization who is defending the unpopular speech claims "

I'm not sure of this. I know thefire.org has done a heck of a lot of work in the same area, and it seems to me with a lot less political bias.

How many lawsuits has thefire.org filed? How many has it won?

Yammering about it on a blog is one thing, actually filing and winning suits is quite another.

In general responses to many of the other commenters, the ACLU is nothing more than a leftist political group with its own interpretation of the Constitution. That "living, breathing" piece of paper means whatever will get them the most donations. They are no different from any other identity group.

And, have you ever seen an impoverished ACLU attorney? I haven't. ACLU lawyers are loaded, and use sucker law students and bright-eyed young attorneys to do all the work, no different from any insurance defense firm. ACLU attorneys are great at disguising greed for conscience.

Zero.

"Because FIRE does not undertake direct litigation, these cases must be referred to outside attorneys who share our principles, values and goals."