[PLEASE NOTE IMPORTANT CORRECTION BELOW.]
Clayton Cramer posts about what he says is “The ACLU’s Stunning Hypocrisy About Free Speech.” His evidence? The only evidence that I saw in his posts was that (1) the ACLU was defending the rights of obnoxious anti-Mormon street preachers to speak on a pedestrian mall that had been sold by Salt Lake City to the Mormon Church, but (2) the ACLU is apparently not involved in defending the rights of obnoxious anti-gay street preachers to speak on a public sidewalk outside a gay pride festival in Harrisburg, Pennsylvania (see here for more details). Cramer argues based on this:
Where’s the ACLU? If they want to push for the right of offensive speech in Salt Lake City, why not in Harrisburg?
It seems increasingly clear that the ACLU has abandoned its support for freedom of speech, if that speech is directed against homosexuals.
Hence the charge (in the title of his post) of “the ACLU’s stunning hypocrisy.”
Well, let’s see: Do we know that the Harrisburg preachers called the ACLU? Cramer gives no evidence of that, and I know of none. Perhaps they didn’t call the ACLU. Perhaps they have their own lawyers and don’t need the ACLU’s help. (The ACLU had actually spoken up in the past on behalf of one of the Harrisburg preachers’ right to speak out against abortion. It’s not clear, though, whether Grove would be interested in ACLU’s direct legal help. And if the question is where ACLU’s public comment is, it’s not clear whether the ACLU’s views on the PrideFest controversy were solicited by the media — or for that matter whether they might have been solicited, given, but then not reported in any easily accessible publication.)
What’s more, to my knowledge in most instances decisions are made by local ACLU chapters. Even if somehow the Pennsylvania ACLU behaved differently from the Utah ACLU — and I stress again that we have no reason to think so, since we don’t know if the Pennsylvania ACLU was asked to stand up for Grove — that might simply be evidence of different views in the organization rather than “hypocrisy” on the part of the organization as a whole.
[MAJOR ERROR IN THIS ORIGINAL PARAGRAPH: Finally, when the national ACLU has had to speak up about the First Amendment and opposition to homosexuality, it has to my knowledge come out for the First Amendment. The ACLU filed an amicus brief supporting the Boy Scouts in Boy Scouts v. Dale, stressing their right to exclude gay scoutmasters. And the ACLU filed an amicus brief in Hurley v. Irish-American Gay, Lesbian & Bisexual Group — the case in which the organizers of the St. Patrick’s Day Parade wanted to exclude some pro-homosexuality floats — supporting the right of nongovernmental organizations to exclude such speech. (The Hurley brief was on behalf of neither party, because the ACLU argued, not implausibly, that the parade organizers might in fact be state actors because the city had given them preferred treatment. If this were so, and the ACLU asked that the case be remanded for findings on whether this indeed was so, then the gay rights group would itself have had a legitimate First Amendment claim to equal access to a state-actor-organized parade. But in any event, the ACLU expressed its full support for the rights of non-state-actors to speak, even when their speech involved the exclusion of pro-gay messages.)]
[CORRECTION:] My quick research last night completely led me astray as to the Boy Scouts v. Dale brief; the ACLU, it turns out, was indeed on the wrong side of the question, and in favor of applying the antidiscrimination law to the Boy Scouts — their theory was that “State regulation of who takes part in an act of expression, like a parade or a demonstration, interferes directly with a speaker’s message. By contrast, insisting that an association not discriminate in its membership ordinarily does not interfere with the organization’s message because there is little risk that an association open to the public will be thought to be making a statement through the composition of its membership.”
My apologies for screwing up on that (I must have picked up the wrong brief from the WESTLAW listing), and appreciate the messages from readers Benjamin George and Gil Milbauer who set me straight on this, and allowed me to promptly correct this.
Nonetheless, my basic point still remains: Even if the ACLU is in error on this score, neither the Harrisburg-Salt Lake City comparison nor the ACLU’s restricted view of the freedom of expressive association supports the charge of “hypocrisy” on the ACLU’s part. [END CORRECTION]
I have plenty of differences with the ACLU. I think they’re not as solid supporters of free speech as they used to be, and this is especially so as to some local chapters. And perhaps there is some other evidence somewhere out there that the ACLU fails to adequately support the right to engage in anti-gay speech. But Cramer has not, as I see it, adduced any reliable evidence in support of his pretty strident charges.
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