The Endangered ACLU

Jesse Walker | May 25, 2007

Writing in The Wall Street Journal, Wendy Kaminer plays taps for the American Civil Liberties Union. "Once the nation's leading civil liberties group and a reliable defender of everyone's speech rights," she argues, "the ACLU is being transformed into just another liberal human-rights group that reliably defends the rights of liberal speakers."

Kaminer's evidence consists mostly of cases where the group has refrained from taking a position, as opposed to actively taking the wrong side. But there's also this:

Last March, the ACLU announced its support for a bill introduced by Rep. Carolyn Maloney (D., N.Y.) aimed at barring antiabortion centers from advertising "abortion counseling" services. While some crisis pregnancy centers that offer abortion counseling can fairly be accused of engaging in a bait and switch (trying to lure women seeking abortions into counseling sessions with antiabortion advocates), they're also engaged in political speech at the core of First Amendment protections. Not surprisingly, the ACLU's endorsement of legislation restricting this speech generated controversy when it was reported in the New York Sun. How did ACLU leaders respond? The press release announcing support for the Maloney bill was deleted from the ACLU Web site. Today, one year later, the national board is seriously considering adopting a policy on commercial speech that would support restrictions on advertising by nonprofit antiabortion clinics.

This isn't the first time this tension within the union has spilled into print. Back in 1990, Reason ran a cover story called "Has the ACLU Sold Out?"; it described a similar split between people who put civil liberties first and people who think liberty is a euphemism for liberal. After that article ran, the civil libertarians regained the upper hand, but apparently they didn't vanquish the other side for good.

Still, at a time when Bob Barr can be a consultant to the ACLU and the Texas branch can tiptoe toward the Second Amendment, Kaminer's report of the group's decline seems premature. Hopefully her article will serve as a rallying cry, not an obituary.

Comments

|5.25.07 @ 11:39AM|#

And why, exactly, are we paying attention to what the WSJ editorial page has to say about civil liberties?

Jesse Walker|5.25.07 @ 11:51AM|#

Wendy Kaminer, a liberal feminist, is a longtime activist in the ACLU. Do not confuse her views on civil liberties with those of the Wall Street Journal editorial board.

|5.25.07 @ 11:51AM|#

Imagine there were some evil anti-hurricane-insurance group, that wanted (for whatever reason) for people to have to pay out of their own pockets for hurricane damage. A few months before the annual hurricane season, they advertised themselves as "Acme Hurricane Insurance", and sought out all the new homeowners in the area. Then once they had bagged potential "customers", either told them that they specifically did not need insurance, or even decepitively "stalled" them until it was too late into the season. Are their actions protected political speech?

Single Issue Voter|5.25.07 @ 11:51AM|#

"And why, exactly, are we paying attention to what the WSJ editorial page has to say about civil liberties?"

Why not?

Or are you so fucking stupid you would not take cover if "FAUX News" reported a tornado was about to hit your house.

|5.25.07 @ 12:04PM|#

I think the point is that WSJ wouldn't be running an article about the ACLU that praised its work exposing the Bush Administration's abysmal record on civil liberties.

The ACLU has long struggled with political correctness, often unsuccessfully. Many years ago, with the demise of McCarthyite anti-communism and segregation I thought the ACLU had outlived its usefulness, until the Bush Administration made it relevant once more.

I thought Kaminar's piece was quite one-sided and, at times, manipulative. Did she want to piss on the ACLU entirely on her own, or was she working to please the WSJ? Either way, it's pretty ugly.

Paul|5.25.07 @ 12:12PM|#

None of these tensions within the ACLU are new. This makes me no less (or more) skeptical of the ACLU because in my opinion, that's just what they do.

|5.25.07 @ 12:20PM|#

I thought the ACLU had outlived its usefulness, until the Bush Administration made it relevant once more

You're kidding right? You must be if you think the most important work the ALCU has to do since the demise of McCarthyism and segregation is to stand up to the Bush administration.

|5.25.07 @ 12:26PM|#

It is the marketplace of ideas. The ACLU doesn't give a shit about things like censorship on campus, unless of course it touches one of their sacred cows, or supression of religous speach. The people who do care about those things are free form their own organizations and in fact have done so.

I can kind of stuff only surprises you if you ever help the ACLU in any special esteem. I never have. Perhaps I would if I were older and had lived through the days when the ACLU really was a special organization. But the fact is there is nothing special about the ACLU. It is just another partisian organization with an agenda and biases. Sometimes it is right. Sometimes it is wrong.

|5.25.07 @ 12:31PM|#

The ACLU lost my contribution when they sold my name and address to every left wing nut job group that would pay them 2 cents.

I am not a huge advocate of privacy rights and the constitution is fairly ambiguous about them...but fuck an A this is the ACLU!!!!

|5.25.07 @ 12:31PM|#

Imagine there were some evil anti-hurricane-insurance group, that wanted (for whatever reason) for people to have to pay out of their own pockets for hurricane damage. A few months before the annual hurricane season, they advertised themselves as "Acme Hurricane Insurance", and sought out all the new homeowners in the area. Then once they had bagged potential "customers", either told them that they specifically did not need insurance, or even decepitively "stalled" them until it was too late into the season. Are their actions protected political speech?

Basically, it would be protected commercial speech (not political speech, another category) as long as it's not fraudulent, libelous/slanderous, or infringing on another's intellectual property. Your hypothetical seems to assume that the customers would be tricked into buying the worthless insurance. In that case, the Constitution would not protect the organization from a fraud judgment.

|5.25.07 @ 12:40PM|#

bchurch,

Your analogy is flawed. If there were a clinic that scheduled women for abortions and then put them under and when the women woke up, they were still pregnant and in the third trimester, that would be equivalent to your hurricane example.

In this case, offering "abortion counseling" could mean counseling for or against abortion and they should be equally valid from a constitutional POV.

disclaimer: pro-choice and I encourage anyone who isn't sure they want a kid to abort.

|5.25.07 @ 12:45PM|#

If the national group would stop the whistling past the graveyard approach to the second amendment, people might take them more seriously. As it is, they have no credibility as an independent organization concerned about civil rights, they're simply another liberal bias group. "Not that there's anything wrong with that", as is said, but they certainly aren't what they claim.

|5.25.07 @ 12:50PM|#

I disagree with the ACLU on several issues (such as immigration rights, affirmative action, guns), but THANK GOD for them. The landmark cases that they have brought in defense of accused persons and speech rights alone, often on behalf of folks who would not have had anyone else defend them, make them a national treasure.
It's at least reasonable to see the clinics issue as one of deception, not speech (has the ACLU ever declined to protect a pro-life speech from being held?), and considering their service to this nation in behalf of liberty they should get the benefit of the doubt.

MattXIV|5.25.07 @ 1:14PM|#

This all has to be viewed in the context of the internal politics of the ACLU. Currently, the longstanding tension between the the liberal politics of many involved with the ACLU and a transideological commitment to civil liberties has melded with a dispute over internal governance at the ACLU.

Kaminer and the rest of the Save the ACLU folks are (justifiably in my opinion) angry with Anthony Romero (the current Executive Director) for his heavy-handed management style and the ACLU failing to get involved in some current civil liberties controversies.

|5.25.07 @ 1:19PM|#

This article uses a fairly common propaganda tool. It lumps in the ACLU's opposition to "Bait and Switch" speech with "political speech" The sentence quoted below is a good example of this. The ACLU is opposed to anti-abortion "bait and switch" speech. Some of these anti-abortion groups are also engaged in protected political speech. Therefore, the ACLU is opposed to anti-abortion political speech.

"While some crisis pregnancy centers that offer abortion counseling can fairly be accused of engaging in a bait and switch (trying to lure women seeking abortions into counseling sessions with antiabortion advocates), they're also engaged in political speech at the core of First Amendment protections."

|5.25.07 @ 1:32PM|#

Gimme Back My Dog,

Fraud does not become an actionable offense only if someone falls for it.

It is a crime for those Nigerian dudes to send out those emails, whether anyone falls for it or not.

Jesse Walker|5.25.07 @ 1:40PM|#

This article uses a fairly common propaganda tool. It lumps in the ACLU's opposition to "Bait and Switch" speech with "political speech"

I hate to dispute your expertise in "fairly common propaganda tools," but trying to persuade someone not to have an abortion is itself protected speech.

There are some anti-abortion centers that cross the line into committing fraud, but the activities restricted by the bill were broader than that. More here.

|5.25.07 @ 1:52PM|#

joe,

Where is the fraud in offereing "abortion counseling" and then adivsing clients not to have an abortion?

|5.25.07 @ 2:05PM|#

It deliberately misleads women into believing that the clinic offers services it does not.

Why do you think they don't advertise as "anti-abortion counseling?" Why do you think they got the Yellow Pages to list them under "abortion services," and resisted their later efforts to classify them under "abortion alternatives?"

Engaging in a deliberate effort to mislead people into thinking you are offering a service you do not offer is fraud - and no, a semantic argument about the language that they chose in order to mislead the public being grammatically correct does not void the fact that they purposely engage in a carefully orchestrated strategy of deliberately misleading the public about their services.

|5.25.07 @ 2:11PM|#

Isn't it misleading for an organization that provides abortions to call themselves "Planned Parenthood"? Shouldn't they call themselves "Planned non-Parenthood"? Does Planned Parenthood provide any counseling that doesn't lead to recommending an abortion to end an unwanted pregnancy?

|5.25.07 @ 2:26PM|#

Thanks for pointing me to the WSJ editorial. I wish Katherine Mangu-Ward was interested in civil liberties. I am still astonished by her reasoned "libertarian" views toward surveillance cameras.

Does Planned Parenthood provide any counseling that doesn't lead to recommending an abortion to end an unwanted pregnancy?

Yeah, actually quite a bit of it, especially considering that many planned parenthood centers don't perform abortions.

dhex|5.25.07 @ 2:29PM|#

planned parenthood makes sense since, well, contraception is a form of planning.

"Or are you so fucking stupid you would not take cover if "FAUX News" reported a tornado was about to hit your house."

i would take cover, but i would reject their hypothesis that the tornado was caused by sufis whirling for jihad.

Dave B.|5.25.07 @ 2:35PM|#

The ACLU is clearly in the right here. If a place advertizes itself as an abortion counseling center, how could one expect to be advised on whether to get an abortion? No one could reasonably expect such insidious tricky. Similarly, suicide counselors shouldn't be allowed to advise against suicide unless they advertize themselves as anti-suicide counselors.

|5.25.07 @ 2:35PM|#

Flyover Country,

Planned Parenthood provides pre-natal care, fertility counseling, and other services that are perfectly consistent with that name. If these "abortion counseling clinics" actually offered abortion services or counseling about how to obtain them, in addition to anti-abortion counseling, there wouldn't be a problem here.

|5.25.07 @ 2:38PM|#

If there actually were organizations that counseled people to commit suicide, or that presented information supporting either decision, then an anti-suicide group that attempted to pass itself off as one of them would be committing fraud, and your analogy would be apt, Dave B.

But there are not, so it is not.

The standard here is not, "Can I make a semantic point to show that the anti-abortion groups' advertising is grammatically correct?" The standard here is, "Are these groups passing themselves off as something they are not?"

|5.25.07 @ 2:41PM|#

It deliberately misleads women into believing that the clinic offers services it does not.

Why do you think they don't advertise as "anti-abortion counseling?"

So I guess you'd agree that rape counselors should instead be called "anti-rape counselors." Because leaving the "anti" off the front of the word inevitably creates the impression that you're in favor of the thing.

This is clearly an attempt by Planned Parenthood et al. to establish as a matter of law that the only kind of "abortion counseling" that should be permitted is that which holds out abortion as an option. The next step will be to rule that "crisis pregnancy centers" can't call themselves that legally unless they hold out abortion as an option, on the grounds that "everybody knows" that the crisis of an unwanted pregnancy can't properly be addressed otherwise. PP et al. thus will attempt to restrict by law the terms of the debate over what options ought be considered in dealing with a crisis pregnancy, and keep "what everyone knows" from changing.

|5.25.07 @ 2:45PM|#

I see Dave B. already made what basically was my point. I also see that joe failed to address the point that this is really a debate over what "abortion counseling" properly entails, and to render the pro-lifers' answer to that question illegitimate as a matter of law.

steveintheknow|5.25.07 @ 2:46PM|#

As public knowledge and awareness that "crisis pregnancy centers" are anti-abortion "clinics" increases, at what point does it cease to become "fraudulent"? At what point does common knowledge kick in? Does money have to exchange hands for "fraud" to take place?

I can definitely see paying for an abortion and not receiving one as fraud, but simply being "fooled" into walking through front door only to turn around and walk back out…I am not so sure.

Is Miller Light fraudulent for telling me it is the champagne of beers?

|5.25.07 @ 2:57PM|#

Miller Lite does not claim to be the champagne of beers. That would be Miller High Life.

http://www.millerhighlife.com

|5.25.07 @ 3:00PM|#

Seamus,

See my comment at 2:38. If there were "rape counseling" organizations that put out a pro-rape message, then an anti-rape group that attempted to pass itself off as one would be committing fraud.

This is not about magical words; it's about trying to pass yourself off as something you're not.

If there was no actual Bill Gates, and I called myself "Bill Gates" instead of "Joe Boyle" while soliciting people to invest in my software company, I would not be committing fraud. But there is a Bill Gates, and if I dressed up like him, told people I was "Bill Gates, the software CEO," and solicited money from them, I would be defrauding them.

steveintheknow|5.25.07 @ 3:01PM|#

Thanks Flyover. Its been a while since I last popped the cork on one. :)

|5.25.07 @ 3:03PM|#

If a beer distributor calls you up and offers you cases of "the King of Beers" at a steep discount, and then ships you Crazy Horse Malt Liquor, he is committing fraud.

He is deliberately trying to mislead you.

|5.25.07 @ 3:13PM|#

"This is clearly an attempt by Planned Parenthood et al. to..."

It doesn't matter. If Pat Buchanan decides to call the police on the kid who broke into his car JUST BECAUSE the kid is Mexican, the kid still commited B&E.

steveintheknow|5.25.07 @ 3:14PM|#

joe

Does someone have to pay for service before they find out the counseling provided is of only one kind?

What if someone knows a crisis preg. center is an anti-abortion clinic, is it still fraud?

|5.25.07 @ 3:17PM|#

steveintheknow,

I'm not sure if trying, and failing, to defraud someone counts as fraud, or attempted fraud, or conspiracy to commit fraud.

Nonetheless, if those Nigerian dudes ever come to the US and are taken into custody, the FBI won't have to prove that anyone fell for that particular groups emails. Just sending out the emails is a criminal act.

steveintheknow|5.25.07 @ 3:21PM|#

joe

One more thing I don't think your analogy addressed.

Crisis preg. centers do offer counseling, just not every kind. Certainly not the kind I would be looking for. Is a mattress store fraudulent for advertising "mattress store" if they don't offer king-size beds, which I happen to be looking for?

steveintheknow|5.25.07 @ 3:24PM|#

The reason why I ask about payment is because only then does "offering abortion counseling" to someone who thinks they are walking into a planned parenthood become fraud.

Otherwise, they are getting counseling, which is what is being offered.

Thats all, really.

|5.25.07 @ 3:25PM|#

joe,

I think when you are talking about fraud, you have to get into semantic arguments. If you don't, let's lock up Ed McMahon right now because those Publishers Sweepstakes certainly lead people to believe their chances of winning are higher if they buy the magazines.

As I said before, I have no love for these anti-choice types, so you could change my mind, but I still don't see how arguing against having an abortion is not giving abortion counseling. If a marriage counseler listens to a couple fight, throws up his or her hands and says 'this is hopeless, you two should get divorced' is the counseler a fraud?

|5.25.07 @ 3:30PM|#

s.i.t.k,

If you advertise yourself as the Men's Clothing Warehouse, you are not engaged in false advertising if you don't carry Big and Tall Sizes.

If you advertise yourself as the Men's Clothing Warehouse, and tell people who are looking to buy a suit "Sure, come on in," when all you do is proclaim the superiority of nudism, you are engaged in false advertising.

|5.25.07 @ 3:37PM|#

GBMD,

By "semantic," I mean that the issue is not whether the dictionary definition of "abortion counseling" includes anti-abortion counseling.

People get indicted for committing fraud all the time for making statements that are technically accurate. Read the fraud statutues some time - the standard is the effort to mislead.

These places deliberately try to mislead people into thinking they are something they are not - that is they mission, the purpose. They commonly employ tactics such as setting up shop across the street from Planned Parenthood so they can say, "Yep, we're the place on Elm Street." Another favorite is to carefully choose a name, like "Planning for Parenthood."

Look at my "Bill Gates" example - if a guy with a Gameboy fix-it shop who is named William Gates starts soliciting investments by calling himself, "Bill Gates, the computer CEO," his is committing fraud, without ever telling a lie. If he dresses up with the haircut and glasses, that is an overt act of fraud.

steveintheknow|5.25.07 @ 3:37PM|#

If you advertise yourself as the Men's Clothing Warehouse, and tell people who are looking to buy a suit "Sure, come on in," when all you do is proclaim the superiority of nudism, you are engaged in false advertising.

Well I guess that's where we disagree.

If I am forced to accept your clothing store metaphor - which I think misses actual scenario, but whatever - then I see the crisis preg. centers as being the "Men's Clothing Store" that doesn't offer B&T sizes, not the one that sells no clothing at all.


Anyway, have a good weekend. I am out.

steveintheknow|5.25.07 @ 3:43PM|#

joe

BTW the devil is in the details, and I know very little, so you might be right.

|5.25.07 @ 3:51PM|#

I agree, steveintheknow, the questions here are about "how," not "whether," these places advertise their "abortion counselling services."

If they try to make themselves appear to be somebody else, they are committing fraud.

|5.25.07 @ 4:05PM|#

I don't know. I think they would have to be defrauding someone for it to be fraud. Someone coming in to get advice on how to go about getting an abortion and instead being shown a fetus in a jar (or whatever they do). You know, she's out her time and she's been inconvenienced. I'm not unsympathetic to that, but I don't think it raises to fraud.

|5.25.07 @ 4:46PM|#

Jesse
That was some reporting by the NYSun. You mean Silvergate and Hentoff, two PROMINENT LIBERAL CIVIL LIBERTARIANS are against it? Oh my God. And did you hear that Zell Miller, a DEMOCRAT thinks that some of what the Democratic Party is doing is wrong? I'm shocked, shocked...

|5.25.07 @ 4:50PM|#

I'm going to have an awesome weekend, steveintheknow.

I just bought a pressure washer, and it rulez.

You got any gunk on your foundation?

|5.25.07 @ 5:30PM|#

Another favorite is to carefully choose a name, like "Planning for Parenthood."

Aside from the trademark issue, this strikes me as pretty much the opposite of misleading; after all, that's *exactly* what these places generally do.

Jesse Walker|5.25.07 @ 5:31PM|#

Ken: Yeah, I saw that part. Also the parts you apparently missed, where Silverglate, Eugene Volokh, and others actually critiqued the bill.

NP|5.25.07 @ 6:08PM|#

If you cut through all the howling and whining generated here so far and try to think rationally, the crux of this matter is what Jesse said earlier:

I hate to dispute your expertise in "fairly common propaganda tools," but trying to persuade someone not to have an abortion is itself protected speech.

If you think an individual or a group is misleading or ripping off others, you fight that with more reasoned, intelligent speech, or, if you happen to need a more drastic resort or just be really pissed off, you bring a lawsuit. If we tried to ban everything that we considered wrong or misleading, the press as we currently know it (not to mention the advertising industry, lobbying groups and other orgs of similar ilk) wouldn't exist.

Also, I hate to recite the tiresome right-wing homily, but saying the ACLU doesn't not lean to the left is like saying the opposite about the WSJ editorial board.

|5.25.07 @ 6:27PM|#

Obviously, any place that offers "abortion counseling" must be fraudulent unless you can know in advance, before you even talk to them, that their "counseling" will consist of "Yep, you should do it!"

|5.25.07 @ 7:04PM|#

If an organization sponsored free "pro-life counseling", and then when you got in there they tried to counsel you that being pro-life is wrong, would the ACLU go after them for being deceptive? If not, aren't they mighty selective about what is deception? Are they trying to stop statists who are trying to tear down classical liberalism and who are generally anti-stuff-libertarians-consider-progress from calling themselves "liberals" or "progressives"? For that matter, where is the ACLU's outrage against the government calling something the "Social Security Trust Fund" when it's socialist, not social, it's not secure, and it's not a trust fund in the sense of having any real money saved up?

If they're not trying to take your money or physically harm you, and you're free to walk out as soon as you grasp you don't agree with their agenda, how's that fraud?

|5.25.07 @ 10:07PM|#

jh,

If I won't sell you my product at the price I advertised, and you're free to walk out as soon you realize that, how is that fraud?

Very, very easily, actually. Cases like that are prosecuted all the time. Force AND fraud, dude. They're not the same thing.

Seamus,

Do you think there might be some deception-related issue to an anti-abortion group telling women that they're "Planning for Parenthood," that goes beyond the semantic meaning of those three words? Really concentrate, and see if you can think of some other angle that such a group might be working.

|5.25.07 @ 10:09PM|#

Stevo,

I'm surprised that you'd buy into right-wing talking points like that.

Do you actually think that "Yep, you should do it!" is the only thing Planned Parenthood staff say to women who want to talk about their problem?

|5.25.07 @ 11:52PM|#

All right, you may have a point there, joe. Although I have my doubts about Planned Parenthood providing objective advice.

I guess it bothers me that a pro-abortion stance is assumed to be the "default" legitimate POV when someone seeks information about abortions. And it seems wacky to see the ACLU come down on this side of it. The situation is murky at best, and I would have expected the old ACLU to err on the side of freedom of speech, if error must be risked.

FWIW, in my local Yellow Pages there are separate ad categories for "abortion alternatives," "abortion providers" and "abortion referrals." I like that arrangement. Would crisis pregnancy centers that advertise "abortion alternative counseling" be acceptable?

|5.26.07 @ 1:57AM|#

There's at least one pro-suicide organization that I know of, Compassion & Choices, which is the result of a merger of some older ones, including the Hemlock Society.

I'd love to see an "Alcohol Counseling" hotline that advised you on the proper mixing of cocktails, or what wine or beer goes best with the dinner you are making.

I can't see how any "abortion counseling" service that is non-commercial could be gigged for fraud. IMS, most of these pro-life operations don't charge, but are funded by donations.

Kevin

Paul|5.26.07 @ 3:03AM|#

It deliberately misleads women into believing that the clinic offers services it does not.

Why do you think they don't advertise as "anti-abortion counseling?"

So they could advertise themselves as being a "pro-choice" group, and help the women to make the "choice" not to have an abortion. Or perhaps the "pro choice" movement has already staked out that ground as being an implicit "pro abortion" movement?

Grotius|5.26.07 @ 8:06AM|#

joe,

If there actually were organizations that counseled people to commit suicide...

Such groups do exist actually. Ain't nothing per se wrong with suicide.

I disagree with you on this matter but I have as yet to be presented with the official right-wing talking points memo. I'll get back to you.

Grotius|5.26.07 @ 8:12AM|#

Since which place in a locale offers which services is fairly well known in a community it is hard for me to see where the "deception" lies.

___________________________________________

joe,

Oh, and since you are slinging the word left and right, can you define the term fraud for us? Thanks.

BTW, this probably isn't a good definition:

Engaging in a deliberate effort to mislead people into thinking you are offering a service you do not offer is fraud...

Otherwise I would suspect that TV shows which hoax people by pretending to offer a service would be committing fraud.

|5.26.07 @ 10:41AM|#

Wow, some amazing hair splitting going on here to avoid the obvious.

The reality is that while the ACLU has some flaws, they are mostly wrongly slandered by the right, and their actual mission and behavior is routinely misrepresented in some of the most dishonest ways around.

The organization is not on the way out: it just has the same old same old attempts to delegitimize everything it does by lying about it.

Snore.

Grotius|5.26.07 @ 10:48AM|#

plunge,

Are you arguing that Wendy Kaminer, the author of the WSJ article and someone that Jesse Walker describes as "a liberal feminist," is doing these things? In other words, who are specifically referring to?

|5.26.07 @ 11:27AM|#

Stevo,

"I guess it bothers me that a pro-abortion stance is assumed to be the "default" legitimate POV when someone seeks information about abortions."

I've been trying to make this point, but I guess I haven't done a very good job expressing myself. The problem isn't that counselling women not to have abortions can't accurately be described as "abortion counselling." The problem is that these organizations engage in deceptive business practices, to trick women in the middle of a crisis to come in and be "counselled" by deliberately misrepresenting themselves.

'FWIW, in my local Yellow Pages there are separate ad categories for "abortion alternatives," "abortion providers" and "abortion referrals."'

Mine, too. These categories were created a few years ago, because of this exact same problem. "Planning for Parenthood," or whatever the local front group called itself, was advertising the Yellow Pages under the "Abortion Services" heading, right alongside "Planned Parenthood," making their ads look as similar as possible, and in some cases even acquiring as similar a phone number as they could. It took a concernted campaing by women's groups to get the producers of the yellow pages to do something about this effort to mislead their consumers.

|5.26.07 @ 11:56AM|#

I think everyone involved agrees that what the "abortion counseling" services do now is not illegal or actionable under current law, since they're trying to get a new law adopted in order to make it illegal or actionable. The issue is whether such a law would be contrary to the First Amendment. I think the argument that the law would not be barred by the First Amendment is pretty weak, though I suppose it's not entirely frivolous.

Also, it seems to me that there isn't much harm done by what the "abortion counseling" services do. If you've already decided that you want an abortion and are only looking for assistance in getting one, then you'll just walk out when you realize that the "abortion counseling" place isn't going to provide the help you want. OTOH, if you're unsure, then being told why you shouldn't have one is as likely to help you reach a decision as being told why you should have one. After all, the idea behind free speech is to change the minds of people.

|5.26.07 @ 12:15PM|#

"I guess it bothers me that a pro-abortion stance is assumed to be the "default" legitimate POV when someone seeks information about abortions."

I would say the default position is that abortion is an option that can be considered. Pro-abortion is pretty much a minority position...

check out
http://vhemt.org/

Grotius|5.26.07 @ 12:25PM|#

joe,

The problem is that these organizations engage in deceptive business practices, to trick women in the middle of a crisis to come in and be "counselled" by deliberately misrepresenting themselves.

At this point, since this is the crux of your claim, one should simply ask you to prove this assertion.

Mine, too. These categories were created a few years ago, because of this exact same problem. "Planning for Parenthood," or whatever the local front group called itself, was advertising the Yellow Pages under the "Abortion Services" heading, right alongside "Planned Parenthood," making their ads look as similar as possible, and in some cases even acquiring as similar a phone number as they could. It took a concernted campaing by women's groups to get the producers of the yellow pages to do something about this effort to mislead their consumers.

For the sake of argument I'll accept this portrayal as accurate. Why then does one need a law? Clearly - again, going by your account - if groups that see abortion as an option that should be available are this successful in the marketplace of ideas then the notion that a law must be passed seems superfluous at best. Note that I am not as yet even dealing with the First Amendment implications of such a law.

Grotius|5.26.07 @ 12:31PM|#

joe,

BTW, it would be helpful if the name of the actual group, the place where this took place, etc. were revealed.

|5.26.07 @ 1:09PM|#

http://www.aclu.org/freespeech/commercial/index.html

My reading of the ACLU position of commercial speech seems at odds with the WSJ piece.

WSJ seems just to cherry pick...

Grotius|5.26.07 @ 2:03PM|#

Neu Mejican,

From the article:

Today, one year later, the national board is seriously considering adopting a policy on commercial speech that would support restrictions on advertising by nonprofit antiabortion clinics.

I would guess that would mean that the policy as currently stated on the ACLU's webpage may not be the future policy.

|5.26.07 @ 2:50PM|#

Grotius,

I prefer to hold judgment on actions until they are made. Considering the merits of a particular position, even if considering it seriously, does not equal adopting said position.

This is like condemning Bush for not being willing to take military action off the table in talks with Iran.

|5.26.07 @ 3:11PM|#

A counter example to the WSJ case...

http://www.aclu.org/freespeech/protest/27266prs20061027.html

"Our government violates the principles in the First Amendment when it puts an overbroad permit scheme in place to restrain free speech in a public place," said Joe Cook, Executive Director of the ACLU of Louisiana. "The sweep of the ordinance is so wide that it could encompass a chance meeting on the street corner by two strangers."

Crayton peacefully picketed for about 40 minutes on a public sidewalk with a sign that said "Christians: Wal-Mart Supports Gay Lifestyles And Marriage. Don't Shop There." He was approached by a Natchitoches police officer who refused to allow him to continue without obtaining a permit from the city. Crayton had received permission from the chief of police to hold an "open air meeting," but he also needed permission from the Mayor. The Mayor has failed to approve Crayton's application even though it was submitted several weeks ago.

"The right to be heard on matters of religious and political significance is at the core of our constitutional system," said Katie Schwartzmann, Staff Attorney for the ACLU of Louisiana. "The city of Natchitoches has effectively silenced Mr. Crayton on what for him is an important religious issue, and this type of government censorship cannot stand unchallenged."

|5.26.07 @ 3:15PM|#

And how does removing the public support from the bill by taking it off the website indicate anything other than that they have changed their position or are reconsidering it?

Robert|5.26.07 @ 3:28PM|#

The cynic could say that's a wash -- anti-homosex vs. Wal-Mart.

|5.26.07 @ 6:17PM|#

"joe | May 25, 2007, 10:07pm | #

jh,

If I won't sell you my product at the price I advertised, and you're free to walk out as soon you realize that, how is that fraud?

Very, very easily, actually. Cases like that are prosecuted all the time. Force AND fraud, dude. They're not the same thing."

Joe, first of all, I was talking about someone offering FREE counseling, such as free pro-life counseling where they counsel you that being pro-life is wrong. What does that have to do with fraud related to advertising something that's offered for sale?

Second, have you ever tried to buy a car? Because car dealerships pull this bait and switch thing all the time, except with some fine print at the bottom about how the car they're advertising is just one car only, and damn, it's always been sold when you get in the showroom. So, are you saying with the appropriate fine print, such allegedly misleading titles would be fine? If not, how do you prohibit it without giving the government free reign to regulate us to death?

Grotius|5.26.07 @ 7:26PM|#

Neu Mejican,

I prefer to hold judgment on actions until they are made.

I don't. I think as a general rule that it is perfectly appropriate to criticize proposals. Indeed, we do that all the time here.

|5.26.07 @ 8:46PM|#

Grotius,

I agree that it is perfectly appropriate to criticize proposals.

That is different than passing judgment on someone for considering the proposal...

M, too lazy to google just now|5.26.07 @ 11:01PM|#

Who has the details on the analogous case(s) of prosletizing messianic Jews (ie, Jewish converts to Christianity) taken to court by orthodox Jews for deceptive advertising?

|5.27.07 @ 4:53PM|#

jh,

"What does that have to do with fraud related to advertising something that's offered for sale?"

I don't know - you brought it up. I was just pointing out that "bait and switch" scams can get you fined, because you asked.

"So, are you saying with the appropriate fine print, such allegedly misleading titles would be fine? If not, how do you prohibit it without giving the government free reign to regulate us to death?" It generally takes a pattern of this behavior before the government will step in. Anyone can sell out the one car that they advertised, but if someone is making a point of doing this deliberately, they are exposing themselves to legal jeopardy.

|5.29.07 @ 12:27PM|#

Wendy Kaminer was absolutely right.

The ACLU now often attacks, rather than defends, free speech. It often supports speech codes, and denying protections to people accused of politically correct crimes.

By contrast, in the past, it defended free speech at the expense of property rights.

For example, the old ACLU once sued the owners of the Alpine Village Inn in Torrance, California, for not allowing neo-Nazis to display swastikas in their restaurant, even though the restaurant was a private business, and the First Amendment doesn't apply against private businesses.

But the new ACLU seeks to use government power to gag speech, on campus and in the workplace.

In Aguilar v. Avis Rent-A-Car System (1999), the ACLU argued that racial slurs aimed at illegal aliens were not speech, but just a "verbal act." In that case, it helped convince the California Supreme Court, in a 4-to-3 ruling, to uphold an injunction banning any racial slur in a private workplace. The injunction banned even comments that a complainant learns about second-hand.

In Meltebeke v. Bureau of Labor and Industries (1995), the ACLU argued that private employers' free speech rights are outweighed not just by state employment laws, but by the establishment clause (even though the federal courts have made clear that the establishment clause only applies to government agencies and public employers). (The Oregon Supreme Court did not agree with the ACLU).

Today, the ACLU is supporting the federal hate-crimes bill, which would allow people found innocent of hate-crimes in state court to be reprosecuted in federal court.

The ACLU focuses on the fact that the bill would include sexual orientation along with race and gender.

But it ignores the more relevant fact that backers of the bill have openly sought to take advantage of a loophole in constitutional protections against double jeopardy, a loophole that the ACLU once opposed. (The loophole is the result of the Supreme Court's 5-to-4 Bartkus decision).

One supporter of the bill called it a "vital safety valve" in case a person accused of hate crimes is found innocent in state court, arguing that such a person should be reprosecuted in federal court.

A liberal lawyer cited the collapsed Duke lacrosse rape case as an example of the need for a federal hate crimes law, saying that the prosecution failed only because the local prosecutor, Michael Nifong was "ineffective and overzealous," and saying that federal reprosecution should follow when a state hate crimes prosecution results in acquittal or the dropping of charges, as in the Duke lacrosse case.

(Never mind that the Duke lacrosse defendants were exonerated by DNA evidence, and the North Carolina attorney general recognized that they were in fact innocent).

Testifying before Congress in support of the federal hate crimes bill, former ACLU National Legal Director Burt Neuborne argued that federal hate crimes prosecutions should be allowed even after a person is found innocent in state court if the state prosecutor was of "questionable effectiveness" or if the prosecutor supposedly had "inadequate resources."

These arguments are a scary attack on the constitutional presumption of innocence, allowing an innocent person to be subjected to two successive prosecutions despite a finding of innocence in state court (successive prosecutions would bankrupt most innocent defendants -- the Duke lacrosse defendants incurred lawyers' fees of $80,000 a month).

The federal hate crimes bill that the ACLU is supporting would fundamentally erode basic civil liberties.

|5.29.07 @ 11:00PM|#

"If there were 'rape counseling' organizations that put out a pro-rape message, then an anti-rape group that attempted to pass itself off as one would be committing fraud."

Actually, since rape is a crime, a private organization trying to get potential rapists not to rape would be considered to be spreading a good message.

The case would be otherwise if rape was a constitutional right proclaimed by the U.S. Supreme Court. I can imagine the opinion:

"Every man has the right to decide this intimate and personal issue for himself. Of course, there are some sincere religious people who say women are human, but this is a divisive religious question on which we refuse to take sides. Thus, it is wrong to interfere with a man's autonomy because of speculation about whether women are human."

In this climate, organizations trying to persuade men not to commit rape might certainly be in danger of a fraud prosecution.