ACLU's Gag Reflex When It Comes To Criticism
Nick Gillespie | May 24, 2006, 3:59pm
Reader John Gilmore sends word of the ACLU's latest cause: stifling internal dissent.
From a NY Times account:
"Where an individual director disagrees with a board position on matters of civil liberties policy, the director should refrain from publicly highlighting the fact of such disagreement," the committee that compiled the standards wrote in its proposals.
"Directors should remember that there is always a material prospect that public airing of the disagreement will affect the A.C.L.U. adversely in terms of public support and fund-raising," the proposals state.
Given the organization's longtime commitment to defending free speech, some former board members were shocked by the proposals.
Nat Hentoff, a writer and former A.C.L.U. board member, was incredulous. "You sure that didn't come out of Dick Cheney's office?" he asked.
"For the national board to consider promulgating a gag order on its members--I can't think of anything more contrary to the reason the A.C.L.U. exists," Mr. Hentoff added.
Unexpurgated bit here.
Hans Bader | May 24, 2006, 5:58pm | #
People who defend the ACLU, despite its hypocrisy, on the grounds that it is a private organization, are missing the point.
The reason the ACLU is hypocritical is because it insists that other private organizations permit internal opposition to organizational policies, on pain of being sued by the ACLU, even though the First Amendment does not restrict private organizations. (The ACLU uses state constitutional and statutory provisions to achieve this result, as an end run around the federal Constitution's First Amendment case law).
Yet the ACLU refuses to apply this rule to itself, insisting that it and it alone of all private organizations has the right to restrict members' speech, even though the dissenting board members it seeks to silence are those who are most faithful to the ACLU's stated mission of defending free speech.
The Supreme Court has ruled that the First Amendment and the Equal Protection Clause of the Constitution only restrict the conduct of state actors. Private associations are thus free to condition membership on not publicly criticizing the association’s positions or leaders, and to require that members share a common religion or other characteristic (unless the characteristic is prohibited by an antidiscrimination statute that does not intrude too deeply on the association’s First Amendment freedom of association). This is called the “state action” doctrine. It greatly limits federal courts’ control over private institutions, promoting freedom of association and a free market economy.
The ACLU, however, opposes the state action doctrine. It believes that private institutions, such as shopping centers and private colleges, should be subject to restrictions under the First Amendment, and that even the smallest businesses or associations should be subject to the Equal Protection Clause. For example, it argued in a Connecticut case that the Klan should be able to demonstrate in a private shopping center, overriding the property and free association rights of its owners, and recently persuaded the New Jersey courts to use the New Jersey State Constitution to force private housing developments and shopping centers to host political advocacy groups. Similarly, the ACLU argued that the boy scouts should not be able to dictate membership criteria, a position the U.S. Supreme Court rejected in 2000 on First Amendment freedom of association grounds in the Dale case. And it unsuccessfully urged the Oregon Supreme Court to hold that the owner of a small business violates the Constitution’s Establishment Clause, not just state law, by engaging in workplace religious proselytizing, in the 1995 Meltebeke case.
However, there is one special private organization that the ACLU believes should be exempt from judicial oversight so that it can restrict its members’ speech: the ACLU itself.
The ACLU’s leader, Anthony Romero, has apparently created files on dissident members of the ACLU’s national board, who have criticized the ACLU for failing to oppose restrictions on politically incorrect speech, like anti-abortion ads. And he is pushing to forbid board members from criticizing the ACLU’s board or its staff, arguing that such criticism makes “fund-raising” harder for the ACLU. This is a very ironic position for an organization that claims to be a champion of free speech to take.
It is especially ironic given that the ACLU has repudiated far more limited speech restrictions it endorsed in the past. The ACLU continually depicts as a shameful cave-in to McCarthyism the ACLU’s own Post-World War II policy of excluding supporters of totalitarian movements from its board. That prohibition had the effect of excluding several communist ACLU board members who had backed Stalin’s dictatorship and previously supported the Hitler-Stalin nonaggression pact. Apparently, the ACLU believes in free speech for totalitarians, but not for First Amendment advocates.
Romero justifies the proposed speech restriction by pointing to a supposed need to balance “conflicting” rights. "Take hate speech," he said. "While believing in free speech, we do not believe in or condone speech that attacks minorities."
This is a frequent ACLU tactic, to argue that free speech is overridden by a competing “right” when the speech becomes inconvenient. The ACLU’s “balancing” is applied in an inconsistent and unprincipled manner, based on how much it sympathizes with the target of the speech.
For example, the ACLU successfully argued that Nazis advocating genocide should be allowed to march through the town of Skokie, home to many Holocaust survivors, saying that the Nazis’ free speech rights outweighed the interests of the Holocaust survivors. And it later sued a private restaurant for refusing to serve neo-Nazis because they insisted on wearing swastikas while dining, trampling on the restaurant owners’ freedom of conscience and their private property rights.
But in another case, Aguilar v. Avis Rent-A-Car System, it filed an amicus brief supporting a state court’s gag order banning an employee from uttering even a single racial slur, based on racial harassment that was found to have occurred years earlier, even if no other employee ever heard the slur. The ACLU argued that such slurs could be banned because they were just “verbal acts” of “discrimination” against Hispanics, rather than “pure speech.” The state court accepted the “discrimination” rationale for restricting speech, even though federal courts have consistently held that a single slur does not constitute discriminatory harassment, either by itself or in conjunction with harassment that occurred long ago, and is irrelevant if other employees are not aware of it (and even though the employee accused of harassment was himself married to a Hispanic and the soccer coach of the very employees who accused him of harassment).
“Balancing rights” enables the ACLU to skirt principle to sacrifice fundamental civil liberties to reach whatever pre-ordained politically correct result it wants.
thoreau | May 24, 2006, 8:20pm | #
On the ACLU, my reasons for joining are eminently pragmatic: I oppose the expansion of the federal government's police powers in the wake of 9/11, and the ACLU, for all its faults, has been a strong and powerful advocate for reining in those exceeses.
I disagree with them on many things, but they tend to be very active in the areas where I agree with them, while they are less active in the areas where I disagree.
On the 2nd amendment: I am willing to believe, at least for the sake of argument, that if you read it with a dictionary from the 1790's then it would be perfectly obvious that it protects gun ownership as an individual right.
But the fact remains that for people who use modern American English it is difficult to interpret. The whole "well-regulated militia" thing certainly suggests one take, but the part about "the right to keep and bear arms shall not be infringed" suggests another take. I felt that way back when I was a big fan of gun control, and I feel that way now that I'm a big fan of gun rights.
If it were up to me, the 2nd amendment would be replaced with a new amendment that would spell it out in modern English, one way or the other. It would say something like:
"The right of self-defense being necessary to the security of a free people, the right of the people to keep and bear firearms, knives, and other personal weapons, including (but not limited to) all weapons available to law enforcement agencies, shall not be infringed."
MainstreamMan | May 25, 2006, 1:03am | #
"As a thought exercise, I'm hard pressed to figure out how, say, even a belt-fed .50 machinegun deliberately endangers anyone without a malicious operator."
It might have a dangerously incompetent or careless operator, but the gun cannot deliberately endanger because it doesn't have mental states.... However, certainly malicious/incompetent use of arms is no more protected than "speech that is meant to deliberately endanger others." IMHO the main cause of conflict in the wording of the 2nd involves the interpretation of "infringed." At what point does regulating become infringing?
"MainStreamMan, I ♥ your bigoted stereotyping of me."
Yeah, I thought you would. So now I am a bigoted criminal who hates rational discourse ... Mediageek is such a good judge of character. Sorry, but I must continue to mock you for a while longer. You are just so reactively dour.
"Except that after the part about the "well-regulated militia" it says that the right of the people to keep and bear arms shall not be infringed. Not "the right of the militia."
Militia =
1. An army composed of ordinary citizens rather than professional soldiers.
2. A military force that is not part of a regular army and is subject to call for service in an emergency.
3. The whole body of physically fit civilians eligible by law for military service.
i.e., Militia= the people. Another source of ambiguity. Nice try though. I believe that having people with stakes on both sides of the issue actively thinking about what is meant by the 2nd is the only way towards the appropriate balance. We can only pretend to know what the founders meant by the law. On the other hand, we can decide their intentions don't matter so much, and determine what it means for us today.
On balance, I think the ACLU is a positive and important agent in our society.
Jersey McJones | May 25, 2006, 8:05am | #
This is how the ACLU is scape-goated by the knee-jerks of the idiot right who fail to understand the mission of the ACLU:
Juggler says,
"The notion that the ACLU defends the consitution no mater what is absurd. They'd drop dead before they defended economic liberties, and they happily attack such liberties. There is a reason they have a C in their acronym."
Yes, Juggler, the protection CIVIL liberties are the mission of the ACLU. Economic liberties can and do fall under that scope, but I get the distinct feeling that you are more concerned with the "right" to be sleazy con artist, legally, at the expense of the right to sue sleazy con artists.
How libertarian of you.
____
Mediageek reminds us of the most important issue for people who have no idea what an important issue is - the right to sell guns illegally to street gangs:
"Yeeeeeah booooy. Like how they stand up for the 2nd Amendment.
Geeze, Jersey, could you at least once try to be something other than a straw man with a pulse?"
Yes, geek, lord knows the right to sell guns illegally to child killers is a vital one.
And what other right under siege needs standing up for? Religion? Commerce? The media? Hey - here's a thought for you - how's about worrying about a right that IS actually under siege? Like privacy? No? Still worried about rights that are so entrenched and safe only a paranoid moron would worry about them? Get a life.
Let me say this to all you libertarians out there:
ONLY A COMPLETE AND UTTER MORON WOULD THING THE 2ND AMENDMENT IS UNDER SIEGE.
____
Hans, here, strains to redefine the mission of the ACLU so as to point out a preconceived hypocrisy:
"The reason the ACLU is hypocritical is because it insists that other private organizations permit internal opposition to organizational policies, on pain of being sued by the ACLU, even though the First Amendment does not restrict private organizations. (The ACLU uses state constitutional and statutory provisions to achieve this result, as an end run around the federal Constitution's First Amendment case law)."
Hans, if you think that's what the ACLU does, then you're the type of guy who, while working at a gas station, asks the customer what type of sandwich he would like at the pump. Get a friggin' clue. The ACLU stands up for the constitutional rights of citizens, not the right to disagree with your boss, genius.
________
Dusty has some lint between the ears:
"Ehh? In what way do teachers unions do the dirty work of supporting the Constitution? Unionism -- at least as it exists under the National Labor Relations Act -- is about as antithetical to freedom and rights as anything I can imagine."
They teach. As for the right to organize - if you think that shouldn't be a right, then you’re a fascist pig.
____
All I can say is thank God for Dave W!
JMJ
MainStreamMan | May 25, 2006, 12:12pm | #
"Yet in many states that still have legal open carry, others who are ignorant of the law routinely call the cops when they see someone openly carrying a firearm."
We went over this. Whether it is legal or not, it is atypical. This creates conflict as the behavior is outside of the community standards of behavior. Reason for this... most people don't feel the need to brandish a deadly weapon. Most people are rational in this way.
There is something about taking responsibility for your decisions. It involves understanding the consequences of your actions. If carrying your deadly weapon into Burger king (our first example) is likely to result in the cops being called, then maybe you should leave it in the car. If Burger King is so dangerous that you need your gun, maybe you should eat at In&Out Burger where you can feel safe leaving the gun in the car.
If there are no places in the world where you can feel safe without your gun. You are paranoid.
I had a roommate who always took his gun with him when he worked (as a truck driver, alone on remote hiways in NM). A rational precaution. When he got home, he locked it up. When we went out as a group, he didn't feel he needed the gun. He realized that for most daily activities in most places, there is no need for a deadly weapon (and, just in case you don't know, NM has one of the highest violent crime rates in the country).
It is the failure to discriminate between dangerous situations and safe that causes the problems, not "ignorant" minds that find your behavior aberrant.
Like I said. Carry a gun. It is your right. But carry it openly so rational people can decide whether they want to freely associate with you.
"You've never, not once, explained how it's yours or anyone else's business as to whether an individual chooses to carry a defensive implement."
Free association requires lack of deceit.
Hans Bader | May 25, 2006, 12:37pm | #
JMJ suggests that I misunderstood the ACLU's mission when I pointed out its hypocrisy.
I pointed out that the ACLU hypocritically advocates forcing other private organizations to tolerate dissenting speech from their employees and members, under threat of lawsuits, but refuses to tolerate such speech from its own board. He is quite wrong to deny this hypocrisy.
The post he criticized is reprinted below. An annotated version of my post, with links to supporting evidence, is found at the Open Market blog of the Competitive Enterprise Institute at http://www.ceiopenmarket.org/openmarket/2006/05/what_free_speec.html.
POST ON THE ACLU'S HYPOCRISY:
The ACLU, self-proclaimed champion of free speech, doesn’t believe in free speech when it’s aimed at the ACLU itself, even though it believes that other private organizations should be compelled by law to tolerate dissent in their ranks or face a lawsuit.
The Supreme Court has ruled that the First Amendment and the Equal Protection Clause of the Constitution only restrict the conduct of state actors. Private associations are thus free to condition membership on not publicly criticizing the association’s positions or leaders, and to require that members share a common religion or other characteristic (unless the characteristic is prohibited by an antidiscrimination statute that does not intrude too deeply on the association’s First Amendment freedom of association). This is called the “state action” doctrine. It greatly limits federal courts’ control over private institutions, promoting freedom of association and a free market economy.
The ACLU, however, opposes the state action doctrine. It believes that private institutions, such as shopping centers and private colleges, should be subject to restrictions under the First Amendment, and that even the smallest businesses or associations should be subject to the Equal Protection Clause. For example, it argued in a Connecticut case that the Klan should be able to demonstrate in a private shopping center, overriding the property and free association rights of its owners, and recently persuaded the New Jersey courts to use the New Jersey State Constitution to force private housing developments and shopping centers to host political advocacy groups. Similarly, the ACLU argued that the boy scouts should not be able to dictate membership criteria, a position the U.S. Supreme Court rejected in 2000 on First Amendment freedom of association grounds. And it unsuccessfully urged the Oregon Supreme Court to hold that the owner of a small business violates the Constitution’s Establishment Clause, not just state law, by engaging in workplace religious proselytizing, in the 1995 Meltebeke case.
However, there is one special private organization that the ACLU believes should be exempt from judicial oversight so that it can restrict its members’ speech: the ACLU itself. The ACLU’s leader, Anthony Romero, has apparently created investigatory files on dissident members of the ACLU’s national board, who have criticized the ACLU for failing to oppose restrictions on politically incorrect speech, like anti-abortion ads. And he is pushing to forbid board members from criticizing the ACLU’s board or its staff, arguing that such criticism makes “fund-raising” harder for the ACLU. This is a very ironic position for an organization that claims to be a champion of free speech to take.
It is especially ironic given that the ACLU has repudiated far more limited speech restrictions it endorsed in the past. The ACLU continually depicts as a shameful cave-in to McCarthyism the ACLU’s own Post-World War II policy of excluding supporters of totalitarian movements from its board. That prohibition had the effect of excluding several communist ACLU board members who had backed Stalin’s dictatorship and previously supported the Hitler-Stalin nonaggression pact. Apparently, the ACLU believes in free speech for totalitarians, but not for First Amendment advocates.
Romero justifies the proposed speech restriction by pointing to a supposed need to balance “conflicting” rights. "Take hate speech," he said. "While believing in free speech, we do not believe in or condone speech that attacks minorities."
This is a frequent ACLU tactic, to argue that free speech is overridden by a competing “right” when the speech becomes inconvenient. The ACLU’s “balancing” is applied in an inconsistent and unprincipled manner, based on how much it sympathizes with the target of the speech.
For example, the ACLU successfully argued that Nazis advocating genocide should be allowed to march through the town of Skokie, home to many Holocaust survivors, saying that the Nazis’ free speech rights outweighed the interests of the Holocaust survivors. And it later sued a private restaurant for refusing to serve neo-Nazis because they insisted on wearing swastikas while dining, trampling on the restaurant owners’ freedom of conscience and their private property rights.
But in another case, Aguilar v. Avis Rent-A-Car System, it filed an amicus brief supporting a state court’s gag order banning an employee from uttering even a single racial slur, based on racial harassment that was found to have occurred years earlier, even if no other employee ever heard the slur. The ACLU argued that such slurs could be banned because they were just “verbal acts” of “discrimination” against Hispanics, rather than “pure speech.” The state court accepted the “discrimination” rationale for restricting speech, even though federal courts have consistently held that a single slur does not constitute discriminatory harassment, either by itself or in conjunction with harassment that occurred long ago, and is irrelevant if other employees are not aware of it (and even though the employee accused of harassment was himself married to a Hispanic and the soccer coach of the very employees who accused him of harassment).
“Balancing rights” enables the ACLU to skirt principle to reach whatever pre-ordained politically correct result it wants.
--Hans Bader
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