Nebraska ACLU asks for injunction against speech:

The Omaha World-Herald reports:

In a stark turnabout from its free-speech advocacy, the ACLU urged a judge Monday to prevent the Omaha World-Herald from publishing the name of the Plattsmouth, Neb., man who sued the city over a Ten Commandments monument.

Amy Miller, legal director of the American Civil Liberties Union Nebraska, asked the U.S. District Court for an order prohibiting The World-Herald from disclosing the man's identity, arguing that his safety and well-being would be endangered.

The newspaper vowed to fight the ACLU's request, saying it will continue to report on the court case because it is part of a major public policy issue. . . .

When the ACLU filed a lawsuit on the man's behalf three years ago, attorneys argued that the man should be able to proceed under the name John Doe. The ACLU said the pseudonym was necessary because of threats the man received over his protest of the monument in a city park.

Federal magistrate David L. Piester allowed the man to proceed anonymously, but that order applied only to the attorneys and the parties involved in the case. . . .

Now the ACLU wants the court to issue an order of confidentiality on the plaintiff's identity to apply beyond the courtroom. . . .

I highly doubt that the ACLU will win. (Note, incidentally, that this is yet another example of a Crime-Facilitating Speech controversy, since the ACLU is arguing that the publication of the plaintiff's name would facilitate crimes against him, even though the newspapers might not intend that result.) And I think it's also likely to lose some of its credibility in future cases where it tries to defend potentially harmful speech. True, they might reasonably argue that there's a difference between the speech they're trying to restrict here and the speech they try to protect elsewhere. But many in the public might not buy those arguments, and might see the ACLU as being unprincipled, and as simply trying to restrict speech that hurt its favored causes while protecting speech that helps its favored causes. And the ACLU's reputation for principled defense of free speech, and the grudging admiration that this has at times earned the ACLU even from some of its opponents, is one of its most valuable assets.

As I understand it, ACLU chapters have a lot of autonomy, and this decision by the Nebraska ACLU is likely not endorsed — and might even be much disapproved of, for all I know — by headquarters or by other chapters. People therefore ought not ascribe the decision to the ACLU generally; though in practice, I suspect that people will, given that most aren't aware of how the ACLU hierarchy operates. That's the nature of trademarks: One user of the mark can taint it in a way that affects all the other users as well, rightly or wrongly.

I hope to get a copy of the ACLU's motion in this case soon, and perhaps this might shed more light on the subject; if so, I'll blog more about it.

Nebraska ACLU and lawyers' ethical obligations:

A few readers asked, apropos this post: Does the Nebraska ACLU have an ethical obligation to try to protect its client, even if that means asking for a court-imposed restriction on the press, and perhaps undermining its credibiltiy in future free speech cases?

My understanding -- which my colleague Norm Spaulding confirms -- is that (1) the ACLU can probably ask the client to agree up front that there are some things it won't do to represent him, but (2) if there was no such agreement, the ACLU may in fact be obligated to do all it can to protect the client. (I had meant to foreshadow that in the original post, but forgot to.) Public interest organizations often do agree with a client that the organization will do certain things (for instance, litigate the theory that is likely to set the precedent they like) and not do other things even if they're in the client's best interest (for instance, spend many hours getting the client a remedy that sets no helpful precedent). That's part of the deal: If a public interest firm is to invest its time and effort in a case, it can reasonably insist that it will seek those remedies that really serve its goals, and that it won't do other things that undermine its goals.

So I think the Nebraska ACLU should have made clear to the client up front that it wouldn't try to gag the media as part of its attempt to protect the client. But if it failed to do so, then maybe it is indeed stuck.

Here's the ACLU's press release, by the way:

ACLU denied court order protecting client from danger of attacks in Ten Commandments Case

ACLU Nebraska announced today that it sought and was denied a restraining order prohibiting the Omaha World Herald from identifying a plaintiff whose identity is under a court-ordered protective seal. The ACLU appeared before Judge Richard Kopf on Tuesday afternoon and asked the court for a temporary restraining order protecting the identify of John Doe, the plaintiff in the ACLU's suit over a religious monument in a Plattsmouth city park.

"We are concerned that our client's life will be placed at risk if his name is disclosed," said ACLU Executive Director Tim Butz. "We are at a loss to explain how identifying him by name will foster any public debate. All it will do is fuel hatred and perhaps lead to harm to our client and his family. Now that the World Herald has been told it may publish our client's name, we ask in the name of common decency that they not do so.

"The World Herald has already shown its editorial hostility to our Plattsmouth case and will paint our efforts as a violation of the First Amendment. We see it as something we were required to do in order to zealously represent our client's interest. In a perfect world, we would not have had to do seek this order, but then in a perfect world the newspaper would not have threatened to place our client's life at risk.

"It is unusual for the ACLU to be in court taking a position such as this, and we are the first to admit that this was difficult for us to do. The World Herald placed us in a conflict not of our choosing. We had only two choices, and we did not like either of them. We could do something that appears at first blush to be contrary to the First Amendment or we could do nothing and allow our client to be placed in jeopardy.

"Had there been time, we would have preferred to have a non-ACLU attorney represent him in today's hearing, but the World Herald would not give us any assurances that they would not publish his name before this could happen. As his counsel of record, our attorneys had to act and act quickly. The canon of ethics requires that we act in our client's interest and not in our own.

"We will review today's order with our client and allow him to determine what next steps will be taken."

More on Nebraska ACLU seeking gag order on the press:

I wanted to see the ACLU's brief in support of its motion asking a court to order the Omaha World-Herald not to publish the name of an ACLU client-plaintiff. The ACLU was kind enough to pass along the court's order denying the motion, and the text of the motion itself, but it said that it couldn't pass along the brief supporting the motion -- which contains all the argument and citations of authority -- because all other documents are sealed. (The judge had already, I think at the ACLU's request, restricted the parties from revealing the plaintiff's name, and thus presumably ordered some documents to be sealed; the question in the motion was whether he could restrict newspapers who aren't parties to the case from doing the same.)

So I can't really evaluate the merits of the ACLU's arguments as well as I'd like. But just focusing on the existing law, and setting aside any creative arguments that the ACLU might have made and I haven't thought of, it's not surprising that the judge denied the ACLU's request, and it would be surprising if that denial were overturned.

Unfounded Attack on the ACLU:

I have many differences with the ACLU, but I find many of the attacks on the ACLU to be quite reprehensible. Consider, for instance, the following from the Stop the ACLU blog, quoting a letter from another group:

Yesterday the ACLU announced that they would be suing the city of New York for violating the rights of American citizens who use the public subways because they are subject to random searches. Whether you agree or disagree with the random searches, we all know they are intended for our security in a dangerous time. They are intended as a plan to thwart terrorists and protect Americans from harm.

Don Swarthout, President, Christians Reviving America's Values, is releasing the following response:

"If the ACLU wins this battle in court they will receive a very large financial boost as they have from similar 'victories' in San Diego, Alabama and Virginia. When the ACLU wins their attorneys are paid hundreds of thousands of dollars by tax-payers.

"The never ceasing flow of litigation against cities, states, and the federal government is nothing more than fund-raising stunts. Many of the ACLU's victories come not because their complaint is just, but because the municipality budget is inadequate to match the abusive onslaught.

"In New York, apparently the ACLU believes these searches are unconstitutional because they are random. Although the ACLU has also called metal detectors in airports an invasion of privacy. There is no pleasing the ACLU, because improving society or protecting the rights of American citizens is no longer its goal.

"Now the ACLU is coming against the Constitutional duty of the United States government which requires the protection of citizens. What is in question here is the definition of freedom. Freedom comes with responsibility. The ACLU has become an anti-Christian, pro-terrorist, entity whose only goal is to get the headlines to keep donations rolling in.

"The ACLU's abuse of the legal system is criminal. For that reason Christians Reviving America's Values is drafting a letter asking the US Congress to investigate the ACLU for widespread use of frivolous lawsuits. In the case of the New York lawsuit, the ACLU's actions may also be dangerous to the citizens of New York City."

I called Mr. Swarthout on the phone and I have full permission to reprint his statement here. He said he has come across our site when he was doing research a few times, and that he really appreciates what we are doing. Mr. Swarthout, we really appreciate what you are doing too. If people don't wake up, this trojan horse named the ACLU may just destroy us from within. They consistently defend our enemies, and fight against our efforts to fight them. ACLU, root for the good guys for a change!

We wish Mr. Swarthout the best of luck in this letter to Congress. We hope it is successful, and that Congress will listen. And for those who want to defend the ACLU on this action…just remember…and if they are successful, and one day these terrorists blow up a few thousand in a subway, you will be able to thank the ACLU.

By filing lawsuits, the ACLU is exercising its (and its clients') legal rights and its (and its clients') constitutional rights: The Petition Clause, which protects the right to petition courts for redress of what one perceives as grievances. One may disagree with them. One may try to change the legal doctrines under which they're suing (by Congressional action, by persuading the courts to change the constitutional rules, or for that matter by constitutional amendment) to keep the ACLU from willing. One may call for changes to statutes that give prevailing plaintiffs in some civil rights actions the right to recover attorneys' fees, though I'm skeptical about that. But there's nothing remotely "criminal" about the ACLU's actions.

Filing an outright frivolous complaint -- which is to say one that is not "warranted by existing law or by a nonfrivolous [i.e., legally plausible] argument for the extension, modification, or reversal of existing law or the establishment of new law" -- is punishable. One can already get sanctions for the filing of such frivolous complaints. But I know of no systematic pattern of the ACLU's filing such frivolous complaints.

In fact, my sense is that most of the criticism that the ACLU faces comes because their arguments are too successful -- not only nonfrivolous, but actually ones that win in court. If the ACLU only filed complaints that were such clear losers to be frivolous, they wouldn't much bother people: At most, they'd waste some government lawyers' time, but since government entities tend to have lawyers on salary (and generally not very high salary), they wouldn't even waste much government money. In those frivolous cases, the government would fight the ACLU, win (by definition, since if the government lost, the case wouldn't be frivolous), and even get sanctions against the ACLU.

But in fact the ACLU often wins, and even when it doesn't, its arguments are generally quite plausible. For instance, the claim that random searches of people in subways are unconstitutional is an eminently plausible Fourth Amendment claim, perhaps even a winning one. Searches that aren't based on any individualized suspicion are usually unconstitutional; even some conservative Justices have said so. (See, e.g., City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (Thomas, J., dissenting) ("I rather doubt that the Framers of the Fourth Amendment would have considered 'reasonable' a program of indiscriminate stops of individuals not suspected of wrongdoing."); Minnesota v. Dickerson, 508 U.S. 366 (1993) (Scalia, J., concurring) (expressing "doubt" as to whether even suspicion-based searches for weapons are constitutional, unless the suspicion rises to the relatively high level of "probable cause": "I frankly doubt, moreover, whether the fiercely proud men who adopted our Fourth Amendment would have allowed themselves to be subjected, on mere suspicion of being armed and dangerous, to such indignity").

There are some exceptions, including one for airport searches. Perhaps courts should extend this exception to subway searches, especially aimed at finding bombs. But given the current law, the ACLU's argument is eminently credible.

If you don't like the Fourth Amendment rules that make it possible for the ACLU to sue, fault the Justices who have developed those rules. (In some situations, fault the Framers for setting up the constitutional provisions based on which these rules have been developed; while the Fourth Amendment's ban on unreasonable searches doesn't clearly prohibit the New York searches, it doesn't clearly authorize them, either.) Or fault the Framers for maintaining the English system of justice, in which people have legal rights against the government, and are entitled to go to court to vindicate those rights, even when the majority believes (for good reason or bad) that the rights are dangerous to the common good. Or perhaps, at most, argue that while the ACLU has a legal right to do what it's doing, it ought to (presumably in highly unusual circumstances) refrain from exercising its rights.

But stop calling them "criminal" for exercising their constitutional rights. Stop calling their lawsuits "frivolous" when the lawsuits bother you precisely because they may well prevail. Stop calling them "pro-terrorist" when there's absolutely no reason to think that they indeed favor terrorism, and lots of reason to think that they favor (whether soundly or misguidedly) legal rules -- such as limits on government power to search -- that unfortunately sometimes protect terrorists while at the same time protecting law-abiding citizens. (It's far from clear to me that random searches are going to do much good at stopping suicide bombers, or that bans on random searches will help terrorists; but I acknowledge that some constitutional rules that the ACLU defends do at times protect terrorists as well as protecting law-abiding citizens.)

What is in question here, indeed, is "the definition of freedom." There is lots of room for good faith disagreement about the scope of our freedoms. But that some people have a broader view than you do -- whether it relates to the right to bear arms, the right to be free from unreasonable searches and seizures, the right to counsel, the right to spend one's money for political causes -- doesn't make them criminals, doesn't make them pro-criminal or pro-terrorist, and doesn't make their arguments frivolous.

Before Criticizing a Group, It Helps To Get One's Facts Straight:

One commenter on my earlier ACLU post writes:

The ACLU may not be a criminal organization but it is certainly dishonest. It is not looking out for the interests of Americans, just a select group of Americans. The ACLU stood silent through decades of speech codes and 'verbal harassment' regulations on American campuses, all aimed toward non-liberal voices. It supports gender and racial discrimination, including outright quota systems. It excuses violations of the Constitution against non preferred groups while pretending to protect everyone's rights.

First, while I strongly disagree with the ACLU's position favoring race and sex preferences, I don't think this position is dishonest. There's a perfectly credible argument that discrimination against historically disfavored groups should be judged under a different constitutional rule than discrimination against historically favored groups. Again, I think this argument is mistaken, but reasonable minds can surely differ about this -- and one can certainly look out for the interests of Americans generally (for instance, as to the Fourth Amendment, Sixth Amendment, and the like) and yet take the view that discrimination against some groups is worse than discrimination against others. The ACLU is wrong here, but not dishonest.

Second, the ACLU most certainly did not stand silent as to campus speech codes. In Iota Xi v. GMU, the first federal court of appeals case striking down college speech codes (in 1993), the ACLU of Virginia filed an amicus brief in favor of the plaintiffs, who were punished for putting on a skit in blackface. According to a Nat Hentoff column -- and Hentoff has long been a vocal opponent of speech codes -- the two earlier district court cases that ultimately struck down campus speech codes, in Michigan and in Wisconsin, were filed by local ACLU affiliates.

In Newsom v. Albemarle County School Bd., a 2003 court of appeals, the ACLU backed a high school student's right to wear an NRA T-shirt (surely a "non-liberal voice[]"). For another recent example of an ACLU chapter's interceding on behalf of allegedly racially offensive speakers, see here. And the national ACLU's 1994 position statement on the subject condemns campus speech codes; I believe the national ACLU's anti-speech-code policy was adopted in 1991 (though there was a good deal of dissent within the ACLU about it, especially, I'm told, in the California chapters).

One can (and, in my view, often should) disagree with the ACLU's substantive positions. One can criticize them as dishonest, if one can really point to actual dishonesty, rather than just substantive disagreement. But if one is to criticize them, one should first make sure that one's own arguments are factually accurate.

Honesty and Accuracy, Even in Arguing Against People You Disagree With:

One reader writes, apropos my defense of the ACLU against charges of "frivolous" and "criminal" litigation:

If the ACLU is successful in their New York subway suit, we all lose our most basic freedom -- not to be killed by a bomb. If they are successful, it will be the end of riding on the subway (following a successful train bombing in the USA).

I usually agree with Eugene but in this case I think he has lost his usual common sense and is thinking only of the legal technicalities.

Distinguishing fair criticisms of one's adversaries from unfair criticisms is not a technicality. I've seen lots of people, left, right, or elsewhere, make the same mistake: Just because they think their adversaries are wrong in one way (e.g., propose an unsound view of the Constitution), they feel free to just throw a barrage of epithets at them -- their arguments are criminal, frivolous, pro-terrorist, dishonest, corrupt, Nazi, or what have you. And then, when a third party defends the targets against the unfair criticisms, the critics seem upset. How can you defend these bad people? They're clearly wrong!

Well, that our adversaries are wrong doesn't justify our making wrong (and unfair) arguments ourselves. Consider the message I quote above: My correspondent is complaining about what would happen if the ACLU is successful in their suit. That is flatly inconsistent with the argument that the ACLU's position is "frivolous." (To be frivolous, a legal position has to be not just a loser, but such a sure loser that it can't be justified as a good faith attempt to change the law.) If the ACLU's positions were really frivolous -- which is the supposed essence of the Christians Reviving America's Value call for "the US Congress to investigate the ACLU for widespread use of frivolous lawsuits" -- then why worry about the ACLU's lawsuit being successful?

If you think the ACLU's legal position is mistaken, explain why you think it's mistaken. Labeling that position with epithets that it doesn't deserve is, I think, on balance ineffective, since it undermines your own credibility. But effective or not, it's just wrong.

The ACLU, Communists, and Private Organizations:

One of the great things about blogging is that you don't need a news hook; you can write about whatever catches your eye. This post is about one such item, which I think is emblematic of three not uncommon errors in some liberal circles: A tendency to overextend constitutional norms from government action to private action; a tendency to overlabel action as McCarthyism or close to it; and a tendency to miss the real threat that Communism posed in its heyday.

It turns out (I didn't know this until last year) that in 1940, the ACLU formally barred Communists from leadership or staff positions, and either then or later took the position that it didn't even want them as members. And it also turns out that many people, including at least one First Amendment scholar whose work I much admire, have since then faulted the ACLU for this, calling it a sign of "falter[ing]" in an "organization[] dedicated to the protection of civil liberties." (In the late 1960s, there was even a strong internal ACLU movement to remove this bar, on the grounds that it was wrong from the outset.) Here are a few thoughts about this.

1. To begin with, an organization genuinely devoted to civil liberties shouldn't want its policy to be guided, even in part, by people who are committed to philosophies that are antithetical to those liberties, such as Communism and fascism. You can be dedicated to protecting Communists' right to speak, even though Communist doctrine dismisses free speech as bourgeois folly. But that doesn't mean that you should want them to help run your group.

2. What's more, this theoretical objection was amply borne out in the ACLU's then fresh history. In the 1930s, there were indeed some Communists, and more Communist sympathizers, in important positions at the ACLU. As one might expect, the Communists tried to bend the ACLU to the party line, for instance by making the ACLU soften its criticism of Communist attempts to violently suppress speech in the U.S.

And why not? Communists really weren't interested in protecting free speech; they were interested in defending Communism and the Soviets. (Joining groups and then influencing them to serve the Party's ends was standard procedure for the Communists, and they were apparently quite good at it.) And on top of that, with the Molotov-Ribbentrop pact, and the U.S. Communist Party's lockstep move away towards support for Nazi Germany — a position that was rightly anathema even to those who had been blind to Communism's many other sins — the dangers of influence by Communists were even clearer.

3A. On top of that, the ACLU was an organization that sought to change public opinion in favor of civil liberties. It's hard to do that when the public sees you as being under the influence of notorious enemies of liberty. The ACLU had been heavily criticized in the 1930s for this in the press, and a Congressional committee was preparing to criticize them for it further.

Of course, one can condemn organizations that surrender ethical principles for the sake of public relations — that bow to the unjust criticism of outsiders instead of explaining why the criticism was unjust. But here the criticism was in large measure well-founded, both ethically and factually. Ethically, the ACLU had no constitutional, legal, or moral obligation to keep people who adhered to anti-liberty creeds in its councils.

3B. And factually, there had indeed been Communists on the ACLU's board. There were also solid Communist sympathizers: The chairman of its board of directors was thought, even by many in the ACLU, to be in the Communist camp (whether or not he was a party member).

The ACLU's founding director and likely most influential official, Roger Baldwin, had long been an admitted supporter of communism as an economic system, and on balance an apologist for the Soviet Union. Though he criticized the Soviets at times, he had also praised the USSR as on balance a haven for liberty. His true break with the Soviets (which ultimately brought him around to pretty vociferous anti-Communism) came not with Stalin's ascent, not with the Ukrainian famine, not with the Terror and the show trials — he defended the Soviets even after that — but only in 1939, with the Molotov-Ribbentrop pact.

On top of that, Baldwin was on the record as having said that his commitment to civil liberties for supposed reactionaries was sheerly instrumental, just a tool for advancing the cause of communism. His struggle for free speech, he said, was just incidental to the class struggle, a useful tactic for furthering communist goals. When the working class took over, the resulting regime should be supported by any means necessary, including dictatorship. Dictatorship and suppression of civil liberties would be necessary to get to a socialist society, so such suppression is justified. That was the position of the founding director of the ACLU.

If you were an impartial observer of the ACLU in the 1930s, would you have trusted its commitment to genuine civil liberties, in the face of such evidence? Even if you accepted that Baldwin had changed his mind in 1939, wouldn't you expect at least some assurance that the ACLU would try to keep Communists from influencing its policy to meet their ends (which in 1940 were pro-Nazi ends as well as pro-Soviet ends)? If you were considering donating money, time, or effort to the ACLU, wouldn't you want to make sure that your donation wasn't diverted (and perverted) into serving the ends of totalitarianism, rather than liberty? It seems to me quite proper for the ACLU, a private ideological organization that had every constitutional, legal, and ethical right to pick and choose its leaders and administrators, to try to offer the public some such assurance.

* * *

Here's what I take away from this case study: First, we should remember that free speech principles affect private groups, especially private ideological groups, differently from the government. The government must hire people without regard to religion, but the Catholic Church may insist that its cardinals not be Protestants. The NAACP need not admit Klansmen. Such groups are entitled to exclude officials and members based on their ideology, in order to protect themselves both from internal subversion — in the sense of undercover diversion of a group to ends that diverge from its underlying purposes — and from justifiable public opprobrium.

Second, we must avoid the Reverse Mussolini Fallacy. That Mussolini made the trains run on time (if he did) isn't reason to like Mussolini; but that you dislike Mussolini isn't reason to dislike trains running on time. That McCarthy condemned Communism (which he often did through wrongful means) doesn't mean that there's McCarthyism — or even a violation of civil libertarian principles — whenever a group condemns Communists, or seeks to exclude them from its councils.

Third, the Communists really were a menace back then, and not just through espionage or plans for violent revolution. They also undermined legitimate groups, trying to turn them into fronts that would serve the Communists' (and to a large extent Stalin's) ends. That would be bad for the country, but it was also bad for the groups, including liberal or socialist groups. The ACLU majority of 1940 deserves praise, not condemnation, for recognizing this threat.

Roger Baldwin (the ACLU's Founding Director):

A comment to my "the ACLU, Communists, and private organizations" post asked for evidence supporting my claims about Roger Baldwin, the ACLU's Founding Director (for the details of those claims, see that post). That's a very fair question; part of the answer is to point people to Robert C. Cottrell's Roger Nash Baldwin and the American Civil Liberties Union (Columbia University Press 2000), which I believe is generally seen as a fair-minded and on balance positive biography. But I thought I'd also quote excerpts from a rather striking article published by Mr. Baldwin in Soviet Russia Today in 1934 (I've also put a copy of the entire text here) (emphasis in original):

I believe in non-violent methods of struggle as most effective in the long run for building up successful working class power. Where they cannot be followed or where they are not even permitted by the ruling class, obviously only violent tactics remain. I champion civil liberty as the best of the non-violent means of building the power on which workers rule must be based. If I aid the reactionaries to get free speech now and then, if I go outside the class struggle to fight against censorship, it is only because those liberties help to create a more hospitable atmosphere for working class liberties. The class struggle is the central conflict of the world; all others are incidental.

Proletarian Liberty in Practice

When that power of the working class is once achieved, as it has been only in the Soviet Union, I am for maintaining it by any means whatever. Dictatorship is the obvious means in a world of enemies at home and abroad. I dislike it in principle as dangerous to its own objects. But the Soviet Union has already created liberties far greater than exist elsewhere in the world. They are liberties that most closely affect the lives of the people — power in the trade unions, in peasant organizations, in the cultural life of nationalities, freedom of women in public and private life, and a tremendous development of education for adults and children. . . .

I saw in the Soviet Union many opponents of the regime. I visited a dozen prisons — the political sections among them. I saw considerable of the work of the OGPU. I heard a good many stories of severity, even of brutality, and many of them from the victims. While I sympathized with personal distress I just could not bring myself to get excited over the suppression of opposition when I stacked it up against what I saw of fresh, vigorous expressions of free living by workers and peasants all over the land. And further, no champion of a socialist society could fail to see that some suppression was necessary to achieve it. It could not all be done by persuasion. . . .

[I]f American champions of civil liberty could all think in terms of economic freedom as the goal of their labors, they too would accept "workers' democracy" as far superior to what the capitalist world offers to any but a small minority. Yes, and they would accept — regretfully, of course — the necessity of dictatorship while the job of reorganizing society on a socialist basis is being done.

Quite remarkable words, it seems to me, from the head of an American civil liberties organization. To his credit, Baldwin apparently recanted in 1939 (though, as I said, that was mighty late), and turned into a severe critic of the Soviet regime. And of course even in the 1930s, many in the ACLU were anti-Communist, and today's ACLU ought not be judged because of the failings of an ACLU leader in the 1930s. Still, it seems to me that once one reads these words, it becomes hard to call Baldwin an "FDR socialist," unless one has a very dim view of FDR.

More on the ACLU's Exclusion of Communists:

I asked Geof Stone to respond to my post defending the ACLU's exclusion of Communists from leadership roles and staff positions, and its statements that Communists, fascists, and others are unwelcome as members. (Geof is one of the scholars who criticized the exclusion, and whose criticism I was in turn criticizing.) Here's Geof's response:

Professor Volokh has, as always, offered a set of thoughtful observations on a difficult issue. As "the First Amendment scholar" referred to in the post, I thought it appropriate to add a few words.

Eugene's central point is that private organizations have no constitutional obligation to admit as members people they don't like. Of course, this is correct. The Constitution applies only to government. Yale University, Microsoft, and the Boy Scouts cannot violate anyone's constitutional rights.

Does this mean they act morally or wisely if they have a Jewish quota, or refuse to hire blacks, or exclude gay scoutmasters? Of course not. That these acts are not unconstitutional does not make them admirable, ethical, or defensible.

On the other hand, a private organization is not bound ethically to admit or employ all-comers. The Chicago Cubs don't have to let people who can't hit a baseball play shortstop (although they have long followed such a policy), and the Catholic church doesn't have to let Lutherans serve as priests.

The morality or wisdom of exclusionary decisions must turn on the nature of the private organization and the nature of the exclusion. I stand by my statement, quoted by Eugene, that the ACLU's decision to exclude "Communists" was a sign of "falter[ing]" in an "organization[] dedicated to the protection of civil liberties."

Certainly, the ACLU had every legal right to do what it did. But in doing what it did, it betrayed its own principles. The core principle it betrayed was that individuals should be judged on the basis of their actions rather than on the basis of their political or religious associations.

A fundamental problem during the anti-Communist witch hunt was defining a "Communist." Was a "Communist" someone who was currently a member of the Communist Party? Someone who had once been a member of the Communist Party? Someone who had been a member of an organization that had once been affiliated by the Communist Party? Someone who had once been a member of an organization that had once been supported by the Communist Party? Someone who had once attended a meeting of an organization that had once been affiliated with the Communist Party? Someone who had dated someone who had once been a member of the Communist Party?

Certainly, a private organization that adheres to certain core beliefs can ethically insist that its members support those beliefs. If the ACLU wished to insist on this, the proper approach for the ACLU would have been to focus on whether individuals supported the organization's core beliefs, rather than to focus on "Communism."

By allowing itself to be intimidated into sacrificing the principle that individuals should be judged on the basis of their actions rather than their political associations, the ACLU fell victim to the same hysteria of "guilt by association" that would infect the nation for the next two decades.

Perhaps other private organizations could act this way without violating their most fundamental values, but this was not the case for the ACLU. It had a responsibility to stand for a principle, and in this it faltered. Who knows, following Eugene's logic, perhaps members of the ACLU will someday soon demand that Muslims be excluded from its Board. I hope not.

I think my original post and Geof's suffice to lay out the arguments on both sides, but let me offer a brief reaction. The ACLU's rule as to the board and its staff was that the ACLU "regards it as inappropriate for any person to serve on the governing committees of the Union . . . or on its staff, who is a member of any organization which supports totalitarian dictatorship in any country, or who by his public declarations and connections indicates his support of such a principle." Its statement as to its members was that "The ACLU needs and welcomes the support of all those -- and only those -- whose devotion to civil liberties is not qualified by adherence to Communist, Fascist, KKK, or other totalitarian doctrine." The member statement thus, as I read it, doesn't focus on members' group memberships, but rather their views; the ACLU concluded, I think quite rightly, that those who adhere to Communist, Fascist, or KKK doctrine can't at the same time adequately support the organization's core beliefs.

The officers-and-staff statement did also ask whether people belong in certain organizations; but it seems to me that, where private organizations are concerned, judging people based on their political and religious associations can be quite proper. Membership in the Communist Party or the KKK doesn't tell you everything about a person's view, but it generally tells you something. We're not talking here just about past membership, or membership in a group that's supposedly allied with the bad groups; that may indeed be less telling. But if someone is currently a member of an organization that supports dictatorship (or racism), and works towards dictatorship (or greater racial prejudice), it seems to me that the ACLU can reasonably conclude that this person is pretty unlikely to be a committed ACLU officer or staffer. And outside who are judging a group may likewise think the less of the group because it has Communists or Klansmen among their officers.

I certainly hope that the ACLU won't exclude Muslims as officers, but that's because I suspect that many Muslims can be quite committed civil libertarians, much as many Jews are. The closer analogy is to the Catholic church excluding Muslims as bishops. Yes, you can imagine someone who is currently enrolled in a mosque but who would make a great Catholic bishop. It just isn't very likely. Nor is it likely that someone who is a member of the Communist Party or the Klan would do a good job of defending civil liberties.

More on Roger Baldwin (the ACLU's Founding Director):

Allen Asch, in the comments to a recent post, continues to express doubt that Baldwin was a communist in the 1930s. Since I happen to have the data handy, and since Mr. Asch had earlier expressed skepticism about a Baldwin quote on the topic that had been floating around on the Internet -- skepticism that is eminently sound, though in this particular instance proves to be misplaced -- I thought I'd post it.

To begin with, Baldwin had always denied being a member of the Communist Party, and I've seen no evidence to the contrary. He apparently didn't get along well with the Party, which he rightly saw as authoritarian.

He did, however, support the necessity of a dictatorship of the proletariat, which, once implemented, to be "maintain[ed] by any means whatever," including abrogation of civil liberties -- a pretty solidly communist view. Mr. Asch suggests a different interpretation of Baldwin's position, but I'm afraid I find that interpretation quite unpersuasive.

He also expressed support for communism as an economic system, writing in a note to be included in the 30th reunion classbook of the 1905 Harvard class,

My "chief aversion" is the system of greed, private profit, privilege, and violence which makes up the control of the world today, and which has brought it the tragic crisis of unprecedented hunger and unemployment. I am opposed to the new deal because it strives to strengthen and prolong production for private profit. At bottom I am for conserving the full powers of every person on earth by expanding them to their individual limits. Therefore, I am for socialism, disarmament, and ultimately for abolishing the State itself as an instrument of property, the abolition of the properted class and sole control by those who produce wealth. Communism is the goal. It sums up into one single purpose -- the abolition of the system of dog-eat-dog under which we live, and the substitution by the most effective non-violence possible of a system of cooperative ownership and use of all wealth.

(Robert C. Cottrell, Roger Nash Baldwin and the American Civil Union 228-29 (2000).) And despite the reference to "non-violence," the earlier quote reveals that Baldwin was willing to endorse dictatorship and not just peaceful democratic change.

Finally, Baldwin also often defended the Soviet Union; he definitely did criticize its repression of dissent and civil liberties, but he ultimately defended such repression:

I saw in the Soviet Union many opponents of the regime. I visited a dozen prisons -- the political sections among them. I saw considerable of the work of the OGPU. I heard a good many stories of severity, even of brutality, and many of them from the victims. While I sympathized with personal distress I just could not bring myself to get excited over the suppression of opposition when I stacked it up against what I saw of fresh, vigorous expressions of free living by workers and peasants all over the land. And further, no champion of a socialist society could fail to see that some suppression was necessary to achieve it. It could not all be done by persuasion.

Nor is it easy to dismiss this, as Mr. Asch suggests might be the case, as being based on lack of information about Soviet repression (i.e., to take the view that Baldwin was merely a dupe of the Soviets rather than a fully knowing supporter). Baldwin had traveled to the Soviet Union, had written about it, and had corresponded to many of his friends on the Left who tried to persuade him to criticize the Soviets (including Emma Goldman, see, e.g., Cottrell at 194, 197-98, 216). Yet he continued to defend the Soviets as late as December 1936, when the Moscow show trials were already underway. (One would think that a defender of civil liberties who had also written about the Soviet Union would know a show trial when he saw it.)

Only the Molotov-Ribbentrop Pact -- a foreign policy move rather than an anti-civil-liberties move on the part of the Soviet Union -- ultimately made him change his views. "The Nazi-Soviet pact made you feel that suddenly the Communists were different people. They had abandoned us and got into bed with Hitler." I can certainly see why many on the Left who were primarily focused on fighting the European fascists, and who didn't care much about Stalin's mass murders of his own, would see the Pact as "the biggest shock of [their lives]." But why would someone who is focused on civil liberties be more struck by the Pact than by the show trials and all that came before and after? In fact, why should he be that surprised that two totalitarian regimes would make this sort of foreign policy move?

I should probably be doing some real work now instead of expounding on this. But setting the facts straight on the history of communism, both abroad in the United States, is pretty important to me. There were unfortunately far too many people who (1) endorsed communism as an economic system -- a colossal blunder that's worth studying, and one that reflects a lack of interest in at least the property rights protections of the Bill of Rights -- (2) endorsed communism's goal of a dictatorship of the proletariat that would justify massive suppression of even noneconomic liberties, and (3) either let themselves be fooled into turning a blind eye to the Soviets' atrocities, or, in Baldwin's case, likely willingly ignored what the Soviets were doing. Among other things, only understanding this record can help us understand why the ACLU and other groups felt it necessary to condemn Communism, and why Baldwin himself ultimately turned into a prominent critic of the Soviets.

New York Civil Liberties Union vs. "Unwanted, Abusive, and Intrusive Military Recruitment Tactics":

The NYCLU press release reports:

The New York Civil Liberties Union today announced its major campaign against unwanted, abusive and intrusive military recruitment tactics in schools. The beginning of a new school year marks the opening of another season of military recruiting of high school students as the military exercises the authority it gained under little-known provisions of the No Child Left Behind Act. Such provision have been interpreted as a requirement that school authorities turn over student contact lists to the military and afford its recruiters unprecedented access to students in school. . . .

"The military is setting its sights on vulnerable groups of young people as it tries to meet the demands for more soldiers to fight an increasingly unpopular war." said Donna Lieberman, Executive Director of the NYCLU.

"We send our children to school for an education, not to become military targets. Unfortunately, little noticed provisions of No Child Left Behind have given the military unprecedented access to students in school and an aggressive military has turned some of our schools into a recruiting ground. The NYCLU seeks to ensure that they respect the privacy rights of the children and do not interfere with education."

As part of its campaign, the NYCLU will begin distributing a new pamphlet "No Student Left Unrecruited" outside high schools in New York City today. The pamphlet outlines student rights and provides a tear-off form that students can submit to their schools to remove their name from the recruiting lists sent to the military.

The NYCLU campaign also includes:

* a new NYCLU military recruiting Web site, http://milrec.nyclu.org, which contains student rights information, forms and legal analyses that will help students, parents and educators protect student privacy rights and report recruiting abuses;

* a confidential complaint center where students, parents and educators can report abusive recruiting tactics;

* plans to contact to every school superintendent in the state, urging them to replace ineffective parental "opt-out" procedures that leave virtually no child unrecruited, with an instant in-class student opt-out form that allows students to remove themselves from the military recruiting lists. . . .

In the past there have been complaints of intimidation, deception and harassment by military recruiters in person, by telephone and by e-mail. In some schools, military recruiters have made themselves a regular presence with weekly visits and extensive access to students. Special military marketing materials target students of color. . . .

Of course, "abusive" military recruitment tactics, including "intimidation, deception and harassment" are surely wrong, and generally counterproductive -- they risk alienating the very students whom the military is trying to recruit, and of course their friends as well. The site doesn't point to specific instances of this, but if there are such instances, they should certainly be complained about.

Yet I wonder about other aspects of the NYCLU's complaints, for instance:

1. Why is there a civil liberties problem with unwanted military recruitment? If you don't want the military to offer you a job, you can just say "no, thanks." How is it a violation of your civil liberties to be approached in the first instance? (Yes, I realize that the school is giving the military contact information, but how does providing this information interfere with anyone's civil liberty?) Is it really an aspect of our civil liberty not even to be asked to join?

2. What exactly is the civil liberties problem with "ineffective parental 'opt-out' procedures that leave virtually no child unrecruited"? Presumably the procedures are "ineffective" because parents don't choose to use them. And there seems to be little wrong with a circumstance in which virtually no child is unrecruited. Even if "in-class student opt-out" is more "effective" at removing students from recruiting lists, why is that a plus for civil liberty?

3. The ACLU generally supports race-based affirmative action, including race-based outreach. Many of its allies in this campaign point to the military as an example of an institution that effectively practices such race-based affirmative action. Wouldn't the military "targeting students of color" -- and offering them important training opportunities, though of course ones that also carry considerable personal risk -- therefore be good?

4. The ACLU generally takes the view that young people are mature enough to exercise their free speech rights, abortion rights, and so on. Yet here the NYCLU characterizes older teenagers, who are presumably 17 or 18 when they sign up (I'm not sure whether the military enlists 17-year-olds, but let's even assume that they are), as "vulnerable groups of young people." Why aren't these students, especially when they turn 18 and are adults, entitled to learn about the options they have available to them -- options they may find financially, educationally, and patriotically valuable?

5. Why exactly does it matter for civil liberties purposes whether the war is increasingly unpopular or not?

I ask above what the civil liberties problems are with the military's actions, because I assume the NYCLU is still an organization that's focused on civil liberties; I realize it may define them differently than how others may define them, yet one would think that there is still a boundary to what is a civil liberties issue.

Naturally, if this were the New York Anti-Military-Recruiting Union setting up this project, or even the New York Pacifists' Union or the New York Anti-War-in-Iraq-Union or the New York Anti-Bush-Administration-Union, I wouldn't be asking these questions: It would be quite clear why those groups might want to decrease the effectiveness of the Administration's military recruiting plans. (Not all those groups might want to take these steps; for instance, many foes of the Bush Administration or even of the war effort might not want to try to decrease the effectiveness of recruiting. But at least I could understand why some such groups would act this way.)

What I don't quite see is why the New York Civil Liberties Union would see this as part of its agenda.

For more, including the views of Nat Hentoff, a former ACLU board member, see this New York Sun article.

ACLU Derangement Syndrome:

There's Bush Derangement Syndrome, there's Those Darned Jews Derangement Syndrome, there's Those Awful Somdomites Derangement Syndrome, and there's ACLU Derangement Syndrome. Clayton Cramer points to a very interesting lawsuit in Italy (I quote the Times (London) story, which makes the matter seem somewhat more troubling than the Washington Times story that Cramer links to):

AN ITALIAN judge has ordered a priest to appear in court this month to prove that Jesus Christ existed.

The case against Father Enrico Righi has been brought in the town of Viterbo, north of Rome, by Luigi Cascioli, a retired agronomist who once studied for the priesthood but later became a militant atheist.

Signor Cascioli, author of a book called The Fable of Christ, began legal proceedings against Father Righi three years ago after the priest denounced Signor Cascioli in the parish newsletter for questioning Christ's historical existence.

Yesterday Gaetano Mautone, a judge in Viterbo, set a preliminary hearing for the end of this month and ordered Father Righi to appear. The judge had earlier refused to take up the case, but was overruled last month by the Court of Appeal, which agreed that Signor Cascioli had a reasonable case for his accusation that Father Righi was "abusing popular credulity".

Signor Cascioli's contention — echoed in numerous atheist books and internet sites — is that there was no reliable evidence that Jesus lived and died . . . .

Signor Cascioli's one-man campaign came to a head at a court hearing last April when he lodged his accusations of "abuse of popular credulity" and "impersonation", both offences under the Italian penal code. . . .

But then, after noting the story, the post goes on:

Now, I would like to think that the freedom of religion and freedom of the press provisions of the First Amendment would prevent such a suit from going forward in the U.S.--but you never know what cleverness the ACLU will pull out of its bag of magic tricks next.

In Britain, a prominent scientist is arguing that religion is a form of child abuse [quote omitted] . . . .

Ah, that's it! The ACLU will argue that children have a right to not be mentally abused by exposure to religion. This was, after all, the policy of the Soviet Union, which prohibited teaching religion to those under 18, and the ACLU's founder was a defender of Soviet practices on civil liberties. . . .

Utterly missing is any foundation whatsoever supporting the assertion that the ACLU would support any such speech restriction. That the ACLU's founder was originally a defender of the USSR is quite right, but what happened in the 1930s tells us very little about what the ACLU is likely to do 70 years later. (It's also quite incomplete, I think, without an acknowledgment that Baldwin later turned into a severe critic of the USSR and of Communism.) The ACLU has on balance been a strong supporter of free speech claims; not as strong as I might have liked at times (including in some cases involving private religious speech in public schools and , though note its correct view in this religious speech case), but hardly a fit target for aspersions such as these.

When I queried Mr. Cramer about this (with a message that read "Interesting subject -- but do you have any foundation whatsoever for the suggest that the ACLU would make any such arguments?"), he responded:

Its long history of opposing religious instruction in public schools, even when multiple beliefs were being taught, with the permission of the parents? I'm thinking of McCollum v. Board of Education (1948). I don't know if they participated in that suit or not, but I do know that they have participated in suits attempting to suppress far less substantial expressions of Christianity, such as the Los Angeles County seal idiocy.

But surely there's a very big difference -- a difference that First Amendment law has long made clear -- between what government agencies may say, and what private institutions and individuals (including churches) may say. Even many conservatives would agree, for instance, that government-run schools shouldn't teach specific aspects of religious doctrine (e.g., that Presbyterianism provides the proper theology, and all else is error and heresy); even Justice Scalia's opinion in the Ten Commandments case, for instance, was limited to government speech that took no sides within the Christian/Jewish/Muslim monotheistic tradition. Yet this tells us nothing about what churches or priests may say on their own. Mr. Cramer goes on to write:

Most people that aren't lawyers can see that the ACLU's mission hasn't changed since Roger Baldwin wrote that article about the Soviet Union.

I've criticized the ACLU often before, probably more often than I've defended them. I'm sure I'll criticize them often in the future.

But, unfortunately, it seems to me that much criticism of the ACLU of the right reflects more by way of knee-jerk hostility than simply well-founded ideological disagreement. The four Derangement Syndromes I noted in the first paragraph (yes, the term is partly facetious; I don't think it's literal "derangement") have different moral qualities -- but what they share in common is a hostility that causes the speaker to miss contrary evidence, and to lose a sense of perspective. Bush has this effect on some; Clinton had this effect on some in the past; the NRA has this effect on some; the ACLU has it on some, too.

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

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

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

(See the original post for links.)

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

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

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

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

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

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

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

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

* * *

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

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

Why Do I Keep Blogging About Unsound Criticisms of the ACLU?

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

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

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

ACLU of Texas and Gun Rights:

I think it's too bad that the ACLU takes a collective rights view of the Second Amendment, and generally doesn't do much to defend state constitutional rights to bear arms. (As readers of this blog might realize, I don't think they're evil or even hypocritical for disagreeing with my interpretation of the Second Amendment, or even for declining to defend the clearly individual state constitutional rights. They're entitled to pick and choose what rights they think are most important to defend, just as the NRA and my two favorite conservative/libertarian public interest law firms, the Institute for Justice and the Center for Individual Rights, are entitled to do the same. I just think the ACLU is mistaken in its views.)

In any case, though, I'm pleased that the ACLU of Texas is taking a pro-right-to-self-defense view; Scott Henson, director of the police accountability project for the ACLU of Texas, testified this Spring -- on the ACLU of Texas's behalf -- in favor of a proposal to let law-abiding citizens carry guns in their cars. The law ultimately passed, and Mr. Henson is now trying to check how well it's being implemented, by filing state open records act requests for any instructions that government agencies are giving police officers about the new law. Sounds like good work to me.

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.