Freedom of Speech

ACLU’s David Cole Responds About ACLU and the Freedom of Speech [UPDATED with comments from former ACLU leaders Nadine Strossen and Ira Glasser] [FURTHER UPDATED with link to Kaminer’s reply]

Is the ACLU becoming less committed to protecting free speech, especially speech that some view as "imped[ing] progress toward equality"?

|The Volokh Conspiracy |

[FURTHER UPDATE: For Kaminer's reply, see here.]

I've been traveling with family, so I haven't been able to focus on many interesting stories in the news; one that I've heard about, but couldn't look into closely, involves Wendy Kaminer's (paywalled) Wall Street Journal article titled, "The ACLU Retreats From Free Expression." (Kaminer is a former ACLU board member who has in recent years sharply criticized the ACLU for, among other things, lessening its commitment to protecting free speech) The article discusses this ACLU document called ACLU Case Selection Guidelines: Conflicts Between Competing Values or Priorities; here's an excerpt, as quoted in Robby Soave's post here at Reason:

The speech-case guidelines reflect a demotion of free speech in the ACLU's hierarchy of values. Their vague references to the "serious harm" to "marginalized" people occasioned by speech can easily include the presumed psychological effects of racist or otherwise hateful speech, which is constitutionally protected but contrary to ACLU values. Faced with perceived conflicts between freedom of speech and "progress toward equality," the ACLU is likely to choose equality. If the Supreme Court adopted the ACLU's balancing test, it would greatly expand government power to restrict speech.

In Brandenburg v. Ohio (1969), for example, the ACLU defended the First Amendment rights of a Ku Klux Klan leader prosecuted for addressing a small rally and calling for "revengence" against blacks and Jews. The U.S. Supreme Court reversed Clarence Brandenburg's conviction, narrowly defining incitement to violence as speech both intended and likely to cause imminent illegal action. Brandenburg made an essential distinction between advocacy and action, which progressives who equate hate speech with actual discrimination or violence seek to erase.

The ACLU would be hard pressed to take Brandenburg's case today, given its new guidelines. The organization hasn't yet endorsed a ban on hate speech, or a broader definition of incitement. The guidelines affirm that "speakers have a right to advocate violence." But even if Brandenburg managed to pass the new balancing test for speech cases, some participants at his rally were armed, and, according to the guidelines, "the ACLU generally will not represent protesters who seek to march while armed." …

All this is the ACLU's prerogative. Organizations are entitled to revise their values and missions. But they ought to do so openly. The ACLU leadership had apparently hoped to keep its new guidelines secret, even from ACLU members. They're contained in an internal documentdeceptively marked, in all caps, "confidential attorney client work product." I'm told it was distributed to select ACLU officials and board members, who were instructed not to share it. According to my source, the leadership is now investigating the "leak" of its new case-selection guidelines. President Trump might sympathize.

As I've mentioned, I haven't been able to investigate this closely enough to evaluate the criticism for myself, but David Cole, the ACLU's National Legal Director, passed along this response, which I'm delighted to publish:

The ACLU's Continuing Commitment to Defending the Speech We Hate

By David Cole

The ACLU, the nation's oldest and largest civil liberties organization, has always had its share of critics. Many condemned us for defending Nazis' right to march in Skokie in the 1970s. Some, like former Attorney General Ed Meese, labeled us the "criminals' lobby" for advocating for constitutional rights for those accused of crime. We earned few friends when we represented Anwar al-Awlaki, an American citizen suspected of terrorist ties and killed in a drone strike by the Obama administration. After we represented a white supremacist denied a permit by the city of Charlottesville, we were criticized for defending white supremacists. Such criticism comes with the territory, and does not dissuade us from defending the Bill of Rights, no matter how unpopular our clients may be.

But Wendy Kaminer's criticism, published in the Wall Street Journal, is different from those challenges to our work. Her critique is predicated on a fundamental misrepresentation. She falsely accuses the ACLU of having secretly changed its policy regarding free speech — and of launching an investigation to determine who "leaked" the "secret" document that she claims reveals this asserted change in policy. In fact, the ACLU remains fully committed to defending free speech as the document she cites – our guidelines for case selection—expressly reaffirms. That document does not change our longstanding policies and has never been secret.

After the tragic events in Charlottesville, we reaffirmed our commitment to defending speech with which we disagree. The ACLU Board — the only entity with the authority to change ACLU policy — discussed Charlottesville, and no one on the staff or the board asked the board to change our policies.

Nonetheless, it seemed clear to us that guidelines would help ACLU affiliates and national staff in considering cases that might pose conflicts between our values. We are a multi-issue organization, and some cases may present conflicts, such as between gay rights and religious freedom, privacy and women's rights, or speech rights and equality. The guidelines, which have been distributed to all ACLU staff members, are explicitly designed to help affiliates and national staff think through various factors in case selection decisions.

Kaminer claims the guidelines change our policy. But the guidelines clearly state that they do not "change ACLU policy, which is set by the Board." They reaffirm our view that free speech rights "extend to all, even to the most repugnant speakers — including white supremacists — and pursuant to ACLU policy, we will continue our longstanding practice of representing such groups in appropriate circumstances to prevent unlawful government censorship of speech." Nothing in the guidelines supports Kaminer's claim that "free speech has become second among equals."

Kaminer objects to any acknowledgement that speech can cause harm. But that is simply a recognition of fact, and denying it flies in the face of lived experience and ignores the costs of free speech. All rights come with costs, from privacy to due process to the right against compelled self-incrimination. Acknowledging this hardly means one lacks commitment to the rights. It simply recognizes the stakes. The guidelines do not suggest that the ACLU should not represent a speaker because his speech causes harm. Rather, they "attempt to identify the kinds of questions that ought to be considered, the processes for their consideration, and the measures that can help mitigate the harms to competing interests." We will continue to represent those expressing offensive and harmful views, but we as an organization also insist on our right to condemn a speaker's views even as we defend the right to express them.

And if you don't believe our words, judge us by our acts. We represent Milo Yiannopoulos in a suit against the Washington, DC Metro system for suppressing ads for his book. We are defending a student group in San Diego that was penalized for publishing a satire of "safe spaces" that some students and faculty deem offensive. We disagree sharply with those who engage in terrorism, criminal activity, homophobic or racist speech, or attempts to dissuade women from obtaining abortions. Yet we have defended the constitutional rights of terrorists, criminals, anti-gay and racist bigots, and right-to-life advocates. We don't burn flags, but we defend the rights of those who do. Indeed, we'll even defend Kaminer's right to criticize the ACLU. But we do wish she'd get the facts straight.

Naturally, I'd be delighted to publish any response in turn from Wendy Kaminer; and of course our readers can review the ACLU document for themselves.

UPDATE: Nadine Strossen, a former president of the ACLU, responds (originally posted by Ron Collins at Concurring Opinions, here and here, though with some extra material that she e-mailed me in response to my question):

Only the National Board may change policy, and it was consoling to me that the Board didn't even consider doing so despite the post-Charlotte blowback. In contrast, the Board did several years ago reconsider and revise its campaign finance position (to take a less absolutist free speech position), and back in the early 1990s (when I was on the Board, and in part during my Presidency) it did revisit ACLU's hate speech position in response to the then-new push for campus hate speech codes. (Of course, we reaffirmed our traditional policy — unanimously, which is almost unheard of for that fractious and huge body!) The Board is extremely jealous of its policy prerogatives and would never let the staff get away with in effect modifying policy through the stratagem of implementation guidelines.

I hasten to add that I agree with the Board's judgment that these guidelines do not in fact alter the ACLU's longstanding and proud — although always controversial — policy of defending freedom even for "the thought that we hate," as Justice Holmes put it. Rather, the guidelines set forth and explain the factors that have always been pertinent to the intake process.

The guidelines lay out more than a dozen such factors. The one that has drawn criticism is the potential harmful impact of the speech at issue. But acknowledging this incontrovertible fact is NOT AT ALL to say that such harm would warrant the ACLU not taking the case. To the contrary, the guidelines expressly reaffirm that the ACLU will nonetheless do so. However, that consideration might well influence HOW the ACLU handles the case. Thus, the guidelines address the importance, when taking such cases, of seeking to mitigate the speech's potential harm through the following means: retaining the ACLU's right to speak against the views that it is defending from suppression; engaging in counter protest when appropriate; consulting with its allies to explain why it is taking the case; and devoting any attorneys fees earned to the competing civil liberties interests.

In fact, it has been a longstanding ACLU tradition, while defending freedom for anti-civil liberties views, to encourage its supporters to exercise their free speech rights to engage in "counterspeech," protesting those views. During my tenure as President, the Board and staff repeatedly discussed such strategic considerations concerning speech with various anti-civil liberties and otherwise noxious messages, while nonetheless defending the right to purvey such messages; for the sake of the ACLU's effective advocacy and pursuit of its overall mission, it would have been irresponsible not to do so.

As the policy-setting body (including for substantive free speech policies), the Board would have to vote for any proposed change in policy. The fact that the Board did not even consider — let alone authorize — a change in policy for these cases means that the Board leadership viewed the staff guidelines as being consistent with the longstanding substantive policy. (The Board has always bent over backward to be sure that the staff doesn't even inadvertently intrude into the Board's policy-making power.)

But Ira Glasser, a former executive director of the ACLU, takes a different view (again, originally posted by Ron Collins at Concurring Opinions here):

I have long admired David Cole, and always benefited from consulting him during my long tenure as head of the ACLU. But his response to Wendy Kaminer's concerns about certain aspects of the ACLU guidelines for taking free speech cases begs, indeed, ignores, the specific questions she raises about whether the new guidelines represent a dramatic policy departure. She thinks they do, and, having now read them, so do I.

As a stand-alone statement of principle, David Cole's statement reaffirms longstanding traditional ACLU policy. But it doesn't respond to Wendy Kaminer's op-ed at all, not in any way, and especially not to the language she quoted from the new guidelines about balancing the "extent to which speech may assist in advancing goals contrary to our values" against the right to speak when deciding whether to defend the right to speak.

In other words, the ACLU now advises all its affiliates to consider the content of speech, and whether it advances our goals, before deciding whether to defend the right to speak.

That is a balance never before recognized by the ACLU as legitimate in deciding whether to take a free speech case. To deny that this departure from free speech policy is a departure is intellectually dishonest, an Orwellian smokescreen thrown up to obscure what they are doing.

And that, it seems, is why they tried to hide the new guidelines, even claiming, absurdly, that they were protected by the lawyer-client privilege. To say now, after the guidelines were disclosed by others, that they have nothing to hide rings hollow.

My question is: where is the ACLU Board, which is supposed to be the guardian of its policies. Did the Board vote to approve this policy departure?

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193 responses to “ACLU’s David Cole Responds About ACLU and the Freedom of Speech [UPDATED with comments from former ACLU leaders Nadine Strossen and Ira Glasser] [FURTHER UPDATED with link to Kaminer’s reply]

  1. Read the document in question. It doesn’t flatly state that they’ll stop defending the fights of those they disagree with. But it is quite clear that doing so is going to be a lower priority than many things that are only ‘civil liberties’ by the ACLU’s self serving definition. (Whatever they want to defend, basically, regardless of whether or not you can actually find it in the Constitution.)

    There’s a reason this document was secret on their part, so they’re hardly going to confess.

    1. Yeah, I’d say look at what they do not what they say. But in this case they pretty much confirmed the accusations against them in writing. They’re pretty far along in their dropping the L from their name if they don’t even care enough to bother with a clumsy outright denial.

    2. The reply denies it was secret and points to recent cases that does not provide a “lower priority” to speech that has potential to cause problems. A term like “civil liberty” can cover nearly anything & it is not surprising that one organization will draw certain lines there that will disagree with yours.

      1. They certainly prioritize the “liberty” to have anal sex and abortions over the “liberty” to own a gun or get into a college or job based on your qualifications alone.

        1. They certainly prioritize the “liberty” to have anal sex and abortions

          Is that a call to order for another meeting of Libertarians For Criminalizing Homosexuality and/or Libertarians For Government Micromanagement Of (Certain) Health Clinics?

          Faux libertarians are among my favorite clingers.

          1. Not at all. But the fact that the left elevates these joke “rights” to inalienable status is a joke.

            1. How are they “joke” rights? Anal sex is a component of the fundamental human right to self-ownership. If you reject that one, then you reject 90% of libertarianism.

              1. If you think there’s a fundamental human right to insert your genitals into another man’s anus (and send the costs of your HIV treatment to taxpayers), we really don’t have anything more to debate.

                1. No, I really think we do have something more to debate. I thought arguing over whether two consensual adults can have sex with each other died in the 70s.

                  1. You’r intentionally using the terms “consensual adults” to imply that a man and woman having sex with each other is on the same plane as a man and a man having sex with each other.

                    1. If both men are willing participants, then it is exactly on the same plane from the perspective of the right to self-ownership. Libertarianism 101. I get that you’re a conservative and don’t subscribe to libertarianism, which is just one of the MANY divisions between the two groups.

                    2. I’m not entirely sure why they need to be adults. Doesn’t infringing upon the right of one of these men to sodomize a 15 year old violate their rights to self-ownership?

                    3. Is this a serious question? Consensual means that all participants consent.

                    4. You’re arguing with someone who hasn’t yet figured out that heterosexual people can have anal sex.

                    5. You realize that an arbitrary age at which you can consent is not libertarian either.

                    6. Did I advocate arbitrary ages?

          2. Artie wants us to believe that his troll account, ARWP, thinks he is Libertarian? Nobody thinks ARWP is Libertarian. Idjit.

        2. ActualRightWingPatriot sure does spend a lot of time fantasizing about homosexual anal sex. And as we’ve seen time and again, obsessing over man-on-man butt sex suggests he is either having a lot of it, or really, really, really wants to.

      2. Yep, not secret at all. They just limit distribution and stamp confidential attorney client work product on all their documents

      3. Yes, “recent cases” were pointed out. Recent, as “choices we as the ACLU made in the past”. What will the future bring, though?

    3. many things that are only ‘civil liberties’ by the ACLU’s self serving definition.

      As opposed to your definition?

      1. As opposed to actually being mentioned in the Bill of Rights.

        1. And here I stupidly thought the enumeration of certain rights should not be construed to deny or disparage other rights.

          1. I’m sure gay buttsex was the type of right the founders didn’t want disparaged…

            1. Abortions were none of anybody else’s business, either, back then.

            2. You can disparage it ARWP (although you should at least be fair and also disparage straight buttsex, but I digress).

              What you should not do (according to the Founders, of course it’s a free country and you can do as you please) is disparage it by pointing to its absence in the BoR. That is to say, you’ll have to disparage it on its merits.

    4. This may very well have been a purposeful leak intended to be a trial balloon. Especially since it appears they’re walking back the idea in the “memo”.

    5. There is one type of speech which they won’t defend, anyone expressing their 1A & 2A rights at the same time. This too was secret at first then became normalized. It appears that they have decided to add more restrictions to their defense of 1A.

      1. No one is saying people arguing for more guns should be jailed…

  2. This is the source I believe.

  3. “In deciding how to use our limited resources, no civil liberties or civil rights value should automatically be privileged over any other. There is no presumption that the First Amendment trumps all other amendments, or vice versa….

    “…Thus, there are often costs both from defending a given speaker and not defending that speaker. Because we are committed to the principle that free speech protects everyone, the speaker’s viewpoint should not be the decisive factor in our decision to defend speech rights.”

    Not the *decisive* factor. OK, then.

    So, what kind of a factor?

    “We do not have the capacity to take every case that has legal merit. We seek to bring select impact cases to defend and promote civil liberties and civil rights. In addition, although the government may not discriminate based on viewpoint, the ACLU as a private organization has a First Amendment right to act according to its own principles, organizational needs, and priorities.”

    So in practicing triage, they can discriminate based on viewpoint?

    1. “In carrying out the ACLU’s commitment to defend freedom of speech, a number of specific considerations may arise. We emphasize that in keeping with our commitment to advancing free speech for all, these are neutral principles that apply to all speakers, irrespective of the speaker’s particular political views:

      “…The impact of the proposed speech and the impact of its suppression: Our defense of speech may have a greater or lesser harmful impact on the equality and justice work to which we are also committed, depending on factors such as the (present and historical) context of the proposed speech; the potential effect on marginalized communities; the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values; and the structural and power inequalities in the community in which the speech will occur.

      1. “At the same time, not defending such speech from official suppression may also have harmful impacts, depending on the breadth or viewpoint-based character of the suppression, the precedent that allowing suppression might create for the rights of other speakers, and the impact on the credibility of the ACLU as a staunch and principled defender of free speech. Many of these impacts will be difficult if not impossible to measure, and none of them should be dispositive. But as an organization equally committed to free speech and equality, we should make every effort to consider the consequences of our actions, for constitutional law, for the community in which the speech will occur, and for the speaker and others whose speech might be suppressed in the future.”

        1. IOW, they might defend the free speech of people whose views they don’t like, if it’s necessary to protect the free speech of people whose views they do like.

          1. IOW, they might defend the free speech of people whose views they don’t like, if it’s necessary to protect the free speech of people whose views they do like.

            That, Bellmore, is the only sensible rationale for defending free speech, in a nutshell?in every case, by every defender, and always has been. The ACLU just reiterated its commitment to that, and conservatives are in an uproar. Why?

            One inference is that some conservatives have been engaging in flagrantly bad speech?which other conservatives kind of enjoy?so movement conservatism generally would prefer a different rationale. They want a rationale for speech defense which elevates bad speech above all other kinds. They want to make defending the worst speech the highest objective. They demand that the worst speech be honored, elevated, prized, and cherished ahead of the best?at least for speech approved by movement conservatives.

            No one should suppose a peculiar value system like that could long prove durable as the cornerstone of free speech protection. It’s a formula for making citizens hate free speech instead of treasuring it. It has its uses in court. As a civic value, it’s counter-productive.

            1. This is very interesting, do you have a conservative source which actually makes the argument you describe?

              I certainly concur that a good argument against censorship is that we have no assurance that a government with censorship power would only censor bad speech.

              Indeed, almost by the very nature of things, the government’s perspective will lead it to define bad speech as “that which inconveniences or criticizes the government,” not “speech which is objectively bad.”

              And speech which inconveniences or criticizes the government may well be true and useful speech. Or contain enough of an element of truth that it would be a bad idea to censor it.

            2. “That, Bellmore, is the only sensible rationale for defending free speech, in a nutshell?in every case, by every defender, and always has been.”

              There’s a rather substantial difference between, “We must defend the general principle of freedom of speech, even in the case of speech we disagree with, to protect the speech we agree with”, and “We must sometimes defend the freedom to engage in specific instances of speech we disagree with in order to prevent immediate threats to speech we agree with”.

              It’s the latter that the ACLU is doing now; They’ve abandoned the general strategic position in favor of freedom of speech, in favor of a more tactical defense of it only where the consequent protection of their favored speech is relatively immediate.

              1. Brett, your last paragraph would be alarming if applied instead to the Supreme Court of the United States?which must stay out of the business of distinguishing good speech from bad speech. It’s no threat at all when applied to the ACLU, which better serves the national interest in free speech if it applies its limited resources to defending only some instances of bad speech?and picks cases according to the relative likelihood that the instances in question would example more general censorship if undefended.

                That’s what the ACLU says they will do. Your objection boils down to an assertion that you don’t trust the ACLU. And maybe also to distaste for other objectives they might pursue with some of their resources.

                You would prefer that all other objectives go undefended, to give first priority instead to defending bad speech which movement conservatives like. The ACLU doesn’t have to do that. And it would sacrifice effectiveness in defending speech freedom if it did.

                1. I don’t dispute the right of the ACLU to defend imaginary rights over real ones, or to deny the existence of rights actually mentioned in the Bill of Rights.

                  I just think it’s dishonest of them to be that organization while calling themselves a civil liberties union.

                  They wave the flag of their supposed principle, but they’ve long since abandoned it in reality.

            3. === ===IOW, they might defend the free speech of people whose views they don’t like, if it’s necessary to protect the free speech of people whose views they do like.
              ===

              That, Bellmore, is the only sensible rationale for defending free speech, in a nutshell?in every case, by every defender, and always has been.
              ===

              This is arguing about how many angels can dance on the head of a pin.

              The only rational argument on this issue is observing the horrid nature of life under a government with censorship, and refusing to grant that power to government. Full stop. End of discussion.

              It is off the charts disgusting the ACLU is toying with the joy of censorship…of viewpoints their donors oppose.

              Note how it creeps in with thunderous applause. It’s in business now. It’s in education now. With a feeling of joyous righteousness.

              And now…to attack general speech in public!

              The dictators and demagogues of the future await!

              Never, never build the tools of tyrrany. It’s a falsehood that democracy can wield this terrible demon without falling off.

        2. I’m truly disappointed by the ACLU’s document. I had hoped, after the Charlottesville incident, that it was returning to consistent Free-Speech advocacy, and that I could whole-heartedly re-join it.

          But no. It’s focus on supposed (but undemonstrated!) harm that free speech supposedly brings to “marginalized” groups and it’s movement from support of speech to that of “equality” (as though anti-speech codes improve prospects for equality!) was evident in the 1990’s.

          The document doesn’t mark a change, but a continuation of a trend of over two decades. The great Free Speech advocate Nat Hentoff left the ACLU and became a vocal critic in part because of its support of prior restraint on speech in the workplace (including having forbidden words) and its wishy-washiness on campus speech codes . The other reason was its intolerant support of abortion.

  4. The old adage of “how do you know when a lawyer is lying? Their lips move” needs to be expanded, at least for the current ACLU, to “they typed a response”.

    After reading the document, I also thought of “what are you going to believe? Your lying eyes, or me?”

    1. Well, he did basically say actions speak louder than words, so let’s see what happens. He brought up several examples of cases that they’re currently arguing that would seem to contradict these criticisms. I guess it’s possible that they stop defending those people now, but that seems unlikely in my view.

      Personally, I think the whole thing is lip service to the anti-speech crowd. They’re reasserting that they don’t agree with the speech they’re defending, and they’re doing this in a big way. But I won’t believe that they stop actually defending that speech until it happens.

      1. Note that the ACLU no longer takes any 1A Free Speech cases if it in any way involves the 2A RKBA. That has already happened thru their actions.

      2. I think it’s interesting that two prominent former leaders of the ACLU think this is a big deal. They have the inside baseball knowledge on how things work.

        That said, if actions speak louder than words, those actions have indicated a long-time drift. The one that remains unforgivable to me is the ACLU submitting an amicus brief in support of Planned Parenthood in the case against American Coalition of Life Activists. While the ACLU is not a monolith, that was the first time I reclass them putting in on the side opposite of pure private speech. 290 F.3d 1058 (2002).

  5. Man, they’re hoping your readers are dim.

    Well, distribution shifted to IJ.

  6. Paraphrasing the document:

    “Q: Can we still represent shitlords?”

    “A: Yes, but they must sign a representation agreement that allows us to call them shitlords whenever we mention their name or discuss the case, though we might get disbarred if we do this in the courthouse.”

    “Q: Do we represent any shitlords who may need our representation?”

    “A: We do have to balance between civil rights and the positive rights of others to not get their feelings hurt, so as long as we have enough cases to select from, we can and should ignore the bigger shitlords who may hurt the feelings of specially special people.”

    And calling themselves the “nation’s oldest and largest civil liberties organization” is a nice touch. The NRA would probably disagree on both counts. But then again, the ACLU does not seem to regard self-defense as an actual civil liberty so I get where they are coming from. Or free exercise, for that matter.

    1. They don’t consider self-defense as an actual civil liberty, because it would overwhelmingly be conservatives defending themselves against liberals, and liberals consider violent criminals an important part of the Democrat Party base.

    2. The NRA’s beginnings were directly in opposition to liberty, having been the main advocates FOR gun control for many decades. Rights to ownership is a relatively new focus of the NRA. So the ACLU’s claim is correct.

      1. The NRA’s origins were largely orthogonal to liberty, having been established to promote civilian marksmanship out of a concern that military recruits were showing up barely knowing which end of a gun to point at the foe. That didn’t make them a civil rights organization, or opposed to civil rights.

        OTOH, the NRA has been a civil rights organization for longer than all but a tiny fraction of the population have been around. Even before they became principled in their opposition to gun control, they were involved in the civil rights movement. (More on the CORE than the NAACP end of it.)

        But, yeah, it’s a bit dodgy to declare themselves ‘the nation’s oldest civil rights organization’ on the basis of being the nation’s oldest organization which is currently a civil rights organization.

        1. That didn’t make them a civil rights organization, or opposed to civil rights.

          Right. But being the main drivers behind gun control legislation dating as far back as the 30s did. Their official stance at that time was that guns needed to be tightly regulated and controlled.

          Agreed with the rest of what you wrote.

  7. This prompts a response of “who cares?”

    The people who support the things the ACLU does are still going to do so. The people who don’t like the ACLU are also going to continue.

    This is true whether the instant criticism is 100% accurate, 100% misunderstanding, or anywhere in between.

    1. Ever heard of the fallacy of the excluded middle?

      1. T.he comment starts out, literally, asking if any middle exists.
        A question which remains open. Who exactly is in this fallaciously excluded middle? Is there anyone?

        1. People leave and join the ACLU every day. People change their level of support (up and down), every day. If the ACLU announced tomorrow that it was no longer supporting free speech claims at all, surely you think that would alter the number of “people who support the things the ACLU does”?

      2. The law of the excluded middle is not a fallacy; it is an axiom of formal logic.

        1. You’re confusing the law of the excluded middle in formal logic with the fallacy of the excluded middle in informal logic. The latter is also called a false dilemma fallacy.

    2. I disagree. I donate to the ACLU and have for quite some time. If the criticisms are true, then I will stop. I’m skeptical that it’s a significant shift, but let’s see what happens.

      1. So, more than 24 hours after the original comment, there are apparently TWO people who care enough to say so.

        1. You’re on a web site where the majority of commenters are right-wingers. This is the wrong group to ask the question you asked.

          1. You’re on a web site where the majority of commenters are right-wingers.

            They’re libertarians! Just ask ’em!

            (If you insist on specifics, many of them — such as a the proprietors — will retreat to “libertarianish,” then head off to a meeting of Libertarians For A “Papers, Please” Society, Libertarians For Military Belligerence, or Libertarians For Government Micromanagement Of (Certain) Health Care Facilities.)

    3. Actually, I’ve always appreciated the ACLU even as a conservative, because they were willing to support free speech as a principle and didn’t just try to use the First Amendment as a weapon against people saying things they disagreed with. This is very disappointing to me and has caused me to reconsider supporting them in the future. So no, it’s not just a question of people who supported them will keep supporting them and only people who hate them care.

  8. Ah nice of them to lump in right-to-life advocates with bigots and terrorists. Shows you where they really stand. I have a hard time believing they haven’t drifted towards a SJW aligned organization. Their social media accounts are filled with tweets about the Right to Healthcare and other such nonsensical rights.

    1. Boorish, authoritarian anti-abortion zealots have rights, too. The ACLU recognizes that.

      I enjoy watching right-wingers disparage virtue and social justice, mostly because I prefer that the Republican-conservative electoral coalition lose so long as it embraces and appeases intolerance, backwardness, and authoritarianism.

      1. “Social justice” means redistribution of wealth and persecuting white conservative heterosexuals.

        1. Whereas you wouldn’t DREAM of persecuting anyone, you poor victim, you?

        2. “Social justice” means redistribution of wealth and persecuting white conservative heterosexuals.

          That could be the Volokh Conspiracy motto.

        3. “Social” justice is an oxymoron. “Justice” is in the particulars, it is always individual. “Social” justice attempts to create general justice by perpetrating individual instances of injustice, as though you could build justice by using injustice as a building material.

          1. “‘Social’ justice is an oxymoron”

            Only if you insist on misunderstanding what it means.
            The “social” part indicates the source. Where does this justice come from? It does not magically appear.

            That said, the term is useless now, as it is applied regardless of accuracy, by people who view it as an insult. The way lefties reflexively go to calling people “Nazis”, or righties used to turn to “communist” before they figured out nobody else was bothered by communists, real or imagined.

            1. No. The key aspect of “social justice” is that it doesn’t try to do justice one case at a time, individually. It aims for group justice.

              You see people concerned about social justice talking about privileged groups and oppressed groups. And treating individual instances of those groups as though they were just representatives of the group, to be treated according to the group’s merits or demerits, not their own as individuals.

              You get ideas like affirmative action, as witnessed on our college campuses, where entire ethnic and racial groups get elevated or, yes, oppressed, in an effort to make the statistics look good. And never mind if this black is the son of a doctor, that Asian came from poverty. The group is all, the individual nothing.

              Make no mistake, this is the exact sort of thinking that had lynch mobs riding out to find a black to hang from a tree, and never mind if that particular black was guilty of something.

              1. “The key aspect of “social justice” is that it doesn’t try to do justice one case at a time, individually. It aims for group justice.”

                You’re thinking of class action lawsuits.

                “You see people concerned about social justice talking about privileged groups and oppressed groups”

                Those bastards. Talking about things we’d prefer not to.

                “this is the exact sort of thinking that had lynch mobs riding out to find a black to hang from a tree, and never mind if that particular black was guilty of something.”

                Your working theory is that the problem with lynch mobs is that they occasionally lynched the wrong person?

  9. “Such criticism comes with the territory, and does not dissuade us from defending the Bill of Rights, no matter how unpopular our clients may be.”

    Well, 9/10ths of the Bill of Rights, anyway. The 2nd Amendment doesn’t seem to ever be on the ACLU’s radar.

    1. The ACLU officially thinks the 2A means something different than you do & in various cases protect the rights of gun owners in a variety of ways. For instance, it opposed a rule that would have registered thousands of Social Security recipients with mental disabilities, who have others manage their benefits into the National Instant Criminal Background Check System to prevent them from owning firearms.

      1. Right, meaning they only care about the 2nd Amendment to the extent that gun rights are not applied in a discriminatory fashion against their pet groups.

        1. Unlike you, who campaigns endlessly for the gun rights of illegal immigrants and various minority groups?

          1. Illegals don’t have any right to be here at all and don’t have any rights. They should be rounded up and gassed.

            1. And just after I got through saying how the whole “Nazi” thing was really overplayed.

              1. Artie Ray Lee Wayne Jim-Bob Kirkland was banned by the Conspiracy.

                The Man Of Many Names — women shouldn’t be permitted to vote, illegals should be sent to a gas chamber, homosexuality should be criminalized — is welcomed by the Conspiracy.

                The Conspiracy has censorship standards. They just aren’t very attractive, and scantly position the Conspirators to nip at the ACLU’s ankles.

                1. LOL, seems like you’re triggered by my (obvious) sarcasm.

                  1. Your sarcasm is only obvious to you. Which if you’re other repugnant views do you now claim is sarcasm? Do you still want to deny women the right to vote, or was that sarcasm? Everything you say could be read plausibly as being sarcastic or a joke or satire of backwards backwoods bigots. You don’t know obvious.

                    1. (which of)

                    2. No, I do truly believe that giving women the right to vote is the surest way to destroy a society.

                    3. Be clearer. Even if you’re being sarcastic with your second sentence (the “gassing” one), I’m pretty sure your first sentence (the “no rights for illegals”) was not sarcasm. With two extreme right-wing sentences in the same post, it can be hard for others to decipher which is sarcasm and which one isn’t.

                    4. I do think that illegals should get no rights, including no Due Process rights beyond a determination that they are in fact illegal.

                    5. I’m aware. Conservatives believe that government grants rights whereas libertarians believe that rights are inherent. Another fundamental difference between the groups. Yet another reason why it’s completely puzzling why some libertarians seem to find an alliance with conservatives, and also puzzling why conservatives like to frequent libertarian websites and comment boards.

                    6. also puzzling why conservatives like to frequent libertarian websites and comment boards

                      I have considered that point during years of observation, and sense

                      (1) some conservatives wish to operate in academia and educated society, and therefore recognize that being lumped in with the bigotry and backwardness that marks the current Republican-conservative electoral coalition would be incongruent with their associational aspirations and

                      (2) some conservatives believe it helps their cause to try to bring libertarians into their fold, for practical partisan purposes, as our society moves against them demographically.

                2. Stop arguing with yourself Artie. Nobody believes that you don’t still have at least 1 right wing extremist troll account to make yourself look reasonable.

                  1. Stop arguing with yourself Artie. Nobody believes that you don’t still have at least 1 right wing extremist troll account to make yourself look reasonable

                    The Conspiracy likely has enough information to know that I have used two and precisely two screennames at the Conspiracy:

                    1) Arthur Kirkland (with or without the ‘reverend,’ which changes for spiritual reasons, and with or without the “L,” because Libertarian is my middle name)

                    2) Artie Ray Lee Wayne Jim-Bob Kirkland (banned for expressing conservative positions in a manner that displeased the proprietor).

                    All of the names I have used have ended with Kirkland and seem readily identifiable as mine.

                    I am confident Prof. Volokh (and at least one or two other Conspirators I seem to irritate by departing from movement conservative orthodoxy) would enjoy exposing my hypocrisy by identifying a “right wing extremist troll account” — or any other account — I have used. So go ahead — have at it, gentlemen.

                    (I do not doubt that VInnieUSMC believes what he wrote, or that plenty of Conspiracy fans agree with VinniUSMC — you don’t get to be a birther with reliable judgment.)

            2. ActualRightWingPatriot|6.23.18 @ 12:06PM
              “Social justice” means redistribution of wealth and persecuting white conservative heterosexuals.

              ActualRightWingPatriot|6.23.18 @ 3:07PM
              Illegals don’t have any right to be here at all and don’t have any rights. They should be rounded up and gassed.

              3 hours apart. Projection.

      2. The ACLU suffers from cognitive dissonance on the 2nd Amendment. They seem to hold various contradictory positions. People don’t have the right to defend themselves, only the military and police should have guns, yet they constantly defend poor victims of police violence and abuse.

        Newsflash to the ACLU: the 2nd amendment is there to level the playing field between the govt and people. The more you create a special government employee class of people with special rights, including the guns, the more likely the government is to abuse citizens.

        If the ACLU truly thought that the Trump administration was the fasicst white supremacist regime they claim, they would be handing out rifles to every Hispanic and Black person, to fight back against the coming Purge.

        1. The ACLU suffers from cognitive dissonance on the 2nd Amendment. They seem to hold various contradictory positions. People don’t have the right to defend themselves, only the military and police should have guns, yet they constantly defend poor victims of police violence and abuse.

          I don’t think there’s a contradiction here. They’re asserting that the police should do their jobs correctly and there should be consequences when they don’t. I don’t agree with how softly they treat 2nd amendment rights, but there’s no contradiction here.

          1. It’s a contradiction because government is inherently corrupt and will never self police. To the extent that they believe that, it’s a delusional.

    2. “Well, 9/10ths of the Bill of Rights, anyway.”

      More like 7/10ths. I don’t think the ACLU has ever done a 10A states rights case, and no one has ever argued a case on 9A.

      1. Modern 14th amendment jurisprudence has rendered the 9th amendment rather redundant, and potentially counter-productive, because it might imply the protection of individual rights like freedom of contract, that were clearly established at the time the Bill of Rights was ratified, but get in the way of modern causes that have been shoehorned into the 14th amendment.

        1. Prior to the 14th amendment, the fundamental assumption of federalism was that the states would protect the individual from the tyranny of the federal government. That approach failed.
          So the 14th enables the federal government to act as the guarantor of liberty, against the state’s tyranny. That’s a substantial shift, and one that a good many people don’t understand.

  10. Yikes! Almost a half-century after Skokie, the ACLU says something that maybe suggests they are thinking of slightly re-nuancing their approach to defending free speech. Right wingers get the vapors.

    During the intervening interval we got: politicians who denounce the press; vast constituencies who applaud ignorance and oppose education; weaponized partisan speech directed at particular persons; cost-free, world-wide, anonymous publishing; and the near collapse of the customary role of editing in private sector published media?all of which are being seized on and promoted by the political right?which sees them as valuable new tools for social transformation and taking over government.

    So of course right wingers demand that the other side stick to 50-year-old free speech fundamentalism, act like nothing has changed, and pay no attention to post-Skokie reality. What I can’t see is any public virtue in what the right demands. Things change, and change can challenge outworn principles. But not all changes are good ones. That has to be acknowledged.

    Right-wing conduct has been the challenge. If the right doesn’t like the change its conduct has forced, maybe it ought to re-channel its own free-speech advocacy and practice, to re-align them with public virtue.

    1. I see you also disbelieve Cole’s assurances that the ACLU’s commitment to free speech is unchanged.

      “cost-free, world-wide, anonymous publishing; and the near collapse of the customary role of editing in private sector published media”

      Yes, the Founders could not have foreseen Moveon.org, Huffington Post, and other dangers to the Republic. We need to get with the times and censor these leftists already! /sarcasm

    2. Eugene Volokh opposed the strong free speech position in the Masterpiece Cakeshop case & the attack on public unions in the upcoming Janus case. I gather some don’t think EV is pure enough.

      1. He has also changed his view on computer programing as speech. Back in the day, he made a good case that it was protected.

        http://volokh.com/2012/06/21/f…..lgorithms/

        He no longer holds that view, though I haven’t seen him explain his change in opinion.

      2. I’m not sure that’s true. He might not have adopted the constitutional argument that you’re calling “strong free speech” but that doesn’t mean Professor Volokh is opposed to it as a matter of policy.

    3. During the intervening interval we got: politicians who denounce the press; vast constituencies who applaud ignorance and oppose education; weaponized partisan speech directed at particular persons; cost-free, world-wide, anonymous publishing; and the near collapse of the customary role of editing in private sector published media?all of which are being seized on and promoted by the political right?which sees them as valuable new tools for social transformation and taking over government.
      How dare the political right do these things! Only the political left gets to do so! /sarc

      1. Here’s how it works Michael. First you decide you disapprove of those things. Then you apply your disapproval to the folks who practice them. That’s all there is to it. If that lands disproportionately on Trump’s base, that’s what happens.

        1. “Here’s how it works Michael.”

          For you, me and a few of the rest of us here, maybe, but that’s not how it works for most people.

          For most people, first they figure out which tribe/team they are on they they decide to disapprove of anything the other team supports.

        2. SL, read his post again.

          Saying that a person with principles would do something some way is not an argument against him claiming that you lack such principles.

    4. Things change, and change can challenge outworn principles.

      If your “principles” change depending on the circumstances, then they weren’t really principles to begin with. There’s no such thing as an outworn principle.

      1. Nah. Principles take account of reality as it is understood or experienced. They begin with experience. They provide a structure for reflection, with an eye to delivering consistent guidance throughout the scope of existing understanding and experience. When understanding changes, the principles become outworn.

        What doesn’t change with experience and new insight is ideology. Ideology is more durable, because it works backward, which keeps it out of the weather. What ideology supposes are principles, it mobilizes as axioms?treating them as unchallengeable premises which reason can use to deduce facts.

        Thinking on that basis, and by that method, no amount of evidence collected by experience will ever be found sufficient to overturn the complacent axioms with which the ideology begins. That leaves the ideologue free and confident to say, “If your ‘principles’ change depending on the circumstances, then they weren’t really principles to begin with.”

        1. You are misusing the word “principle.”

          1. Yup. More or less the same way people who understand Darwin misuse the word, “theory.”

            1. ‘people who understand Darwin misuse the word, “theory.”‘

              Say whut? People who genuinely understand the theory of evolution are properly labeling it as a theory. If you’re unclear on the difference between scientific laws and theories, here’s a simple TED talk that explains the difference.

              1. Evolution is a theory.

                Just like gravity.

                Some people — for reasons unrelated to science, or education, or reason, or the reality-based world — use ‘theory’ to disparage evolution but tend not to do so with respect to gravity.

    5. You sound like a “conservative” pining for a lost Golden Age that only existed in your ignorant mind, but you never fail to use the opportunity to mention your obnoxious pet cause.

  11. I don’t exactly grasp the criticism here.

    First of all, the ACLU is a private organization with limited resources.

    It has to choose its battles, and needs rules or guidelines for doing so. Why is it wrong for them to make choices?

    If they choose not to defend certain individuals or organizations that does not impinge on the rights involved.

    Nobody loses Constitutional rights because the ACLU doesn’t take their case.

    Are the critics here really saying that they oppose free speech because they don’t take on all cases the critics think they should? That’s nonsense. You go ahead an hire lawyers for those cases if you think they deserve help.

    Further, it is clear that they do, in fact, take on case that involve speakers they don’t like.

    1. Lots of straw men in there. You slaughtered them nicely.

    2. The criticism is more that they are/were trying to keep a re-alignment of priorities private (even from general membership). I agree the ACLU has the right to take whatever position(s) they feel have merit, however I also see something to criticizing their trying to keep their historic extremely strong free speech backing reputation while potentially walking that back in private.

    3. We know some of them oppose free speech. We heard about the fight inside the ACLU over it after Charlottesville, if you recall. The problem here is that we’re learning they’re compromising with their anti-free speech faction instead of sticking to the principles they’ve had in the past.

      1. But the point of the statement was that ACLU staff can fight with each other over who gets defended, but at the end of the day the board and the board alone makes policy. And the board’s opinion on Charlottesville was apparently unanimous.

  12. Give them credit. At least they’re steadfast in their defense of third-world peasants from Guatemala and El Salvador to come here and suck off Americans.

    1. This statement just encouraged me to donate $50 to the ACLU in your name. Congratulations.

      Proof

      1. If you want to waste your money, go right ahead.

        1. I promise I would not have sent them that additional money (I already did my annual donation to them a few months ago) if you hadn’t typed that sentence and hit the submit button. In effect, you directly contributed to the ACLU. Feel free to brag to your friends.

  13. If the Constitution is a living document, to be reinterpreted in accordance with the needs of the day, then surely the rules of the ACLU are also a living document, and you don’t have to wait for a formal amendment before modifying the rules in the guise of an explanation of priorities.

    1. Obviously they can change what they do at any time, but what is going up in smoke is their reputation of being the group that would even defend the Nazis’ right to march in Skokie.

      That Onion story about the ACLU defending the Nazis’ rights to burn down the ACLU headquarters seems likely to be incomprehensible as a joke to my daughter’s generation

  14. Ah. I see. It’s time to attack the ACLU.

    1. It’s always time to attack the ACLU — and strong liberal-libertarian universities, and anything else that does not advance movement conservatism — at the Volokh Conspiracy.

      1. Thanks, guys, you’ve exposed Ira Glasser’s and Wendy Kaminer’s secret conservative plot to undermine the ACLU and assist Trump!

        1. Checking Wikipedia, I see that Glasser is concealing his right-wing proclivities by being a board member of the anti-Drug-War group, the Drug Policy Alliance.

          As for Kaminer, I observe that she’s in the Secular Coalition for America (“Our mission is to increase the visibility of and respect for nontheistic viewpoints in the United States, and to protect and strengthen the secular character of our government as the best guarantee of freedom for all.”) – so it’s no wonder that she would want to promote fundamentalism and superstition by attacking the ACLU.

          1. And she even wrote a book denouncing all forms of superstition, including of course Christianity:

            https://amzn.to/2Mj062f

            So she’s undertaking a deep cover operation to pose as some kind of progressive while burrowing from withing, promoting the conservative agenda.

  15. I’m not sure how they will defend defending terrorists and child molesters if they don’t defend unpopular speech. The “limited resources” applies equally well. People will argue, “Isn’t there somebody who’s not a terrorist who needs legal help?”. And rightly so.

    1. Please, it’s not as if crime victims are ever from marginalized communities or anything.

      1. So what?

        1. Let’s see…the factors affecting whether the ACLU will take a free speech case include “the potential effect on marginalized communities; the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values; and the structural and power inequalities in the community in which the speech will occur.”

          Perhaps, in listing factor to consider in taking a case involving criminal defendants or terrorist suspects, the ACLU should consider the potential effect of crime and terrorism on marginalized communities, the extent to which due-process rights for terror suspects may assist in advancing the goals of terrorists or others whose values are contrary to the ACLU’s, and the structural and power inequalities between, say, criminals and their victims.

          But that would contradict the ACLU’s slogan of keeping America safe *and* free – that there is no conflict between fighting crime and terrorism and having a robust defense of constitutional rights.

          Why can’t they adopt a slogan like “oppose racism *and* censorship”?

  16. Even if ACLU continues to count to ten with “1, 3, 4, 5, 6…” they’ll still be shit on the 2nd. So, fuck ’em.

    1. Yeah. Such a shame nobody stands up for firearms rights in this country. Another generation or so, and there won’t be any left, except for legends and movies.

      1. Right. Because that worked so well for other inanimate objects in high demand that the government has made illegal. Good thing heroin doesn’t exist anymore except for in Pulp Fiction!

        1. Do you need an explanation for that feeling that something unseen passed nearby, just over your head, at a high rate of speed? Hint: It was pointy.

          1. Do you think sarcasm is a good idea in a thread where there are people suggesting that homosexuality should be outlawed and immigrants should be gassed? Your sarcastic post would have been less extreme than half the posts here.

            1. That whooshing sound… it’s back!

  17. ACLU has been drifting more and more leftward over the last decade. Viewed with great suspicion if not outright distrust by conservatives. The same shift applies to lawyers in general and law school academia in particular. A large fraction vote and support Democrat.

    1. Viewed with great suspicion if not outright distrust by conservatives.

      Birthers don’t like the ACLU?

      Should this bother the ACLU?

      1. All conservatives are birthers. It is known.

        1. You’d be surprised.

          1. All of them?

            1. Not all conservatives are birthers (to my knowledge, not a single conservative Congressman objected to the election returns on birther grounds after either of Obama’s election victories), and not all birthers were conservatives. Obama’s publisher was a birther, for instance.

              1. Fact check – actually it was his literary agent.

                https://bit.ly/2MjtJk5

    2. The ACLU has always been regarded with suspicion by conservatives. It’s nothing new.

      Remember GHW Bush,

      ”I am not a card-carrying member of the A.C.L.U. I am for the people.”

      So pardon me if I think all this, including the OP, is a bunch of concern trolling.

      1. It’s nice to have *someone* defending civil liberties, even if they’re a leftist group with major civil-libertarian blind spots.

        They still do good work, though they are always under pressure to drop their deviations from SJW purity.

        Maybe they’re still the organization which defended the right to jury trial, even though the defendant was a Southern Democrat charged with violating a desegregating order.

        Maybe they’re still the organization which supports the right of national socialists to hold a demonstration in a Jewish community – thereby antagonizing lots of people throughout the political spectrum, including ACLU members and donors.

        Maybe they’re still the organization which defends free expression for pro-lifers, an act of principle, certainly, for people with such antagonism to the prolife cause.

        I suspect that after the recent bad publicity, they’re going to defend the rights of some right-winger or (which is the same to them) some National Socialist, just to show they haven’t gone soft and Kaminer is all wrong.

        But let’s acknowledge that they *are* under pressure to go easy on the whole civil-liberties thing where unpopular people are concerned.

        1. Not generally unpopular people, mind you. Unpopular with the left.

    3. “Viewed with great suspicion if not outright distrust by conservatives. The same shift applies to lawyers in general and law school academia in particular. A large fraction vote and support Democrat.”

      An alternative theory that covers these observed phenomena is that conxervatives are moving sharply rightward, and the other groups mentioned are remaining in place.

      1. On which ACLU-related issues have conservatives grown more conservative while the ACLU stays in place? Abortion? Gay cakes?

        1. ACLU: Why we can no longer support the federal ‘religious freedom’ law

          “…we can no longer support the law in its current form. For more than 15 years, we have been concerned about how the RFRA could be used to discriminate against others. As the events of the past couple of years amply illustrate, our fears were well-founded.”

        2. On which issues, of any kind whatsoever, have conservatives not grown more conservative?

          1. I’ve already listed issues on which conservatives stayed put while the ACLU grew more radical.

      2. I too yearn for the super leftwing 50s and 19th century Republicans and their staunch support of safe spaces and transgender bathrooms.

        1. I laughed

      3. Right, right…let’s act all concerned about conservatives “becoming more conservative” while ignoring the radicalism, extremism, violence, and breaking down of political discourse on your side.

        1. Since “my side” is not the “my side” you’ve imagined, it kind of emphasizes my point that conservatives are really too quick to label, and make assumptions about, anyone who dares criticizes them or their tendency to “us or them” tendencies.

    4. Drifting? They’ve always been a left wing group. But so were libertarians once (dating back at least to the french assembly). Just because authoritarian democrats call themselves “left wing” now and conservatives feed that illusion by calling them “liberal” doesn’t mean that the ACLU was ever anything but a left wing organization that mostly advocated against government persecution.

      1. “…doesn’t mean that the ACLU was ever anything but a left wing organization that mostly advocated against government persecution.”
        In Masterpiece Cakeshop v. Colorado Civil Rights Commission ACLU advocated for government persecution; see here.

  18. We need to cut the nerve of hate speech, which is the erroneous idea that ordinary speech can harm someone in the same way that physical attack can harm them. When someone says something you don’t like, it doesn’t cause you any harm, you can take it or leave it. When someone hits you with a baseball bat, it doesn’t matter what you think, you are hurt.

    Cut the moral argument that speech is harmful, and the whole house of cards will come tumbling down.

    1. “When someone says something you don’t like, it doesn’t cause you any harm”

      I think you’re getting a zero reading here, when you should be reading a very small, nonzero value.
      The difference, of course, is how they accumulate.

      There’s also “eggshell plaintiffs”. For those who didn’t get this in first-year Torts class, if you bump someone, and that someone just happens to have a degenerative bone disease that means they fall down and their skull breaks like an eggshell, you are on the hook for substantial damages because you are guilty of a battery tort and you owe the damages, even though a normal person would not have been harmed. That’s a risk you take when you decide to engage in intentional torts. We know that there are people who can be taunted into, say, self-harm.

      “Cut the moral argument that speech is harmful, and the whole house of cards will come tumbling down.”

      Maybe. But ignoring the factual argument that speech CAN BE harmful, requires denial of reality, and there’s a few people not ready to cast aside the remaining ties between law and reality.

      1. It would be more accurate to say that it doesn’t cause you any cognizable harm, any harm which deserves notice.

        If I’m sunning myself on the beach, and somebody walking by shades me for a moment, I’ve suffered some sort of harm, in an attenuated sense. But nothing deserving of notice. If I build a house in the woods, but at the edge of my property, not the center, and my neighbor cuts down all his trees and a Walmart distribution center ends up next to my hot tub, in some sense I’ve been “harmed”, but not in any sense I’m entitled to redress from.

        The thing is that freedom of speech actually IS a right, a basic human right, and not just one of those government created rights like copyright. Other people’s exercises of their rights can worsen your situation, in a theoretical sense this might be called “harm”, but it is no tort, because it worsens elements of your situation you’re not entitled to. It does things like alter other people’s opinion of you, for instance, but you’re not entitled to other people’s internal mental states. It may offend you, but, critically:

        You’re not entitled to not be offended.

        1. ” Other people’s exercises of their rights can worsen your situation, in a theoretical sense this might be called “harm”, but it is no tort,”

          Except, of course, when it is. Do you need citations to the Restatement (2d) of Torts? I’m too lazy to carpet-bomb you right now with a list, but if you make me do it, I can.

          “You’re not entitled to not be offended.”
          Except, of course, when you are. See, e.g., the law of nuisance.

          1. “Do you need citations to the Restatement (2d) of Torts?”

            I want to know which ones you had in mind when you said: “We know that there are people who can be taunted into, say, self-harm.” Or your discussion re: eggshell skull.

            1. The answer to the first is that you’re confusing two different comments. The answer to the second lies in the text.

              The rest is left as homework for the student.

  19. Conservatives have noticed that the ACLU no longer cares much about some of our freedoms. The response quoted above shows their rhetorical trick – they brag about representing the truly vile – Nazi’s, typically. But they do so as cover to hide their lack of support for some pretty basic freedoms that conservatives especially care about. Freedoms they love to ignore including those of religious practice and firearms ownership and usage, among others.

    So, the adage that organizations not explicitly conservative will, over time, become leftist applies to the ACLU.

    1. To be fair, they were leftist from the beginning – they even moved in a moderate direction in 1940 when they decided not to have Communists on the Board of Directors and removing the Communist Elizabeth Gurley Flynn.

      Then a few decades later they apologized for getting rid of Flynn – which I think may suggest that they were moving leftward again.

    2. In short the ACLU is basically Hitler.

      1. Right magnitude, wrong sign: The ACLU is basically Stalin. [/sarcasm]

    3. “…to hide their lack of support for some pretty basic freedoms that conservatives especially care about. ”

      But not you, you’ve cracked the case wide open!

  20. Defending free speech is so 20th century. the ACLU is now defending the truly fundamental rights of forced cakes from bakers and being called by your preferred gendered pronouns.

    1. And don’t forget your right to murder an unborn child or take it up the ying-yang. You know we wouldn’t have a free society without those rights, just some oppressive dictatorship ….

      1. Just because I don’t want an abortion or a gay wedding, doesn’t mean I want to be told I can’t have one.

  21. One difficulty involves this country’s long history of marginalized peoples. Using ones status as an oppressed people to justify trampling on others’ freedom of speech has been an American pastime since even before the Puritans used their oppression by the British to justify a monopoly on religion in the colonies. Slaveholders and then southern whites successfully presented themselves as victims and successfully used their victim status to justify others’ speech. A famous example is Calhoun’s speech urging making sending abolitionist literature through the mails. Calhoun used an argument that the ACLU has taken almost verbatim and made its own.

    The presence of hate speec, Calhoun said, makes slaveholders feel uncomfortable, prevents them from functioning as full members of society, makes them feel like second class citizens, and puts them in fear.

    The constituents today are different. But the arguments made are pretty much the same as those once made on behalf of the Putitans, slaveholders, etc.

    History suggests we can sometimes simply be wrong about who’s the oppressed and who the oppressor. A key purpose of free speech is to leave the door open to correcting our misimpressions.

    This is why the Constitution, at least the actual written one, doesn’t make some people more equal than others, and gives victims and oppressors the same rights.

  22. The ACLU is laughable these days. Just full of soyboys, feminists, and loser liberals. They lost all credibility when in 2008 Heller (finding the Second Amendment…shock upon shock…protected an individual right. Also what a bunch a nancies that want to apologize about speech they don’t agree with while at the same time spending an institutional effort to defend it. To the client that is pretty like his his lawyer calling him a N!***R but tell him it is fine because he won’t get a bill for his time. What a joke.

    1. You have found the right blog, Jimmy. You truly are among the Conspirators’ peeps, the audience they cultivate with care.

      1. You just don’t like that my analogy is 100% correct about their “free speech” position.

        1. To the contrary, I believe you are the reader and commenter the Volokh Conspiracy was built to attract.

          1. Then the blog has some bugs in it, because it attracted you as well.

          2. You are obviously a soy boy loser, probably a rump raider, and ought to be someone who is marginalized because of it. You should have no right to speak seeing you are a liberal loser. I mean “speech has an impact” and demonizing Christians, whites, and men has a real impact. Little boys like you don’t deserve any constitutional rights. Don’t be surprised when they come for you because most of us are tired your tripe.

      2. In this post: Arthur calls himself a white nationalist.

        He really sucks at everything

  23. Just look at how laughably ugly and soy-boyish the senior staff of the American Communist Losers Union.

    https://www.aclu.org/about/leadership

    Susan Herman is obviously a trans-(avoid the content filter)-man

    Anothony Romero – well he should just change his name to A-boy Rehomo.

    Dorthy Ehrlich looks like a washed up feminist who should be required to wear a burqa for the public good.

    (((David Cole))) nuff said.

    Geri Rozanski is basically the Gobel’s of the ACLU. Ought to be treated accordingly.

    Faiz Shakier – let’s just deport him to wherever in fact who cares whatever as long as it isn’t here. I’m sure the Egyptians will treat him well.

    Michelle Moore is obviously Michael Moore in disguise.

    Terence….well let’s just say he looks like a guy that has a lot of skeletons in his closet. Shouldn’t be hard to find something on that guy.

    What a pathetic bunch of un-American commies. Time to treat them as such.

    1. Why are all the InCels so damn angry at everybody?

      1. My best guess is Low T among men. They don’t understand why women don’t pay them any attention and are physically disgusted at them (just look at the omega losers that run the ACLU….what women is going to respect any one those “men”). Much research needs to be done on the subject though. Until then, we need to contain the national terrorist threat that is leftism. Perhaps one day we may come up with a cure, but until then these people are a public threat which much be dealt with in a systematic manner.

  24. Jimmy the Dane, pass a state bar exam and come back and post.
    Actually, pass a bar exam and don’t.
    Good luck!

    1. Na not going to waste my time – going to spend the time in the RESISTANCE!. Screw liberal losers, feminists, and soyboys. Time to call them out and come and get them. Over the last two years it was themselves who made them fair game. Time to pay for your crimes against humanity left wing losers.

  25. We are a multi-issue organization, and some cases may present conflicts, such as between gay rights and religious freedom, privacy and women’s rights, or speech rights and equality.

    How do speech rights conflict with equality?

    1. Because they’re not talking about equality of rights, they’re talking about equality of outcomes, and if you have free speech, people can freely object to the discriminatory practices involved in engineering equal outcomes.

      1. How can you measure equality of rights without looking at equality of outcomes?

        Women underpaid.
        More blacks incarcerated as opposed to their percentage in our population?

        There has to be real results.

        1. Because in neither of those examples is any portion of the outcome due to the actions and attitudes of the people involved, right?

          1. To compate incarceration rates, one has to account not just for jurisdiction, but the judge and prosecutor as well.

          2. Even when you control for population trends, there are still higher rates of incarceration, longer punishments, and for the case of women, a wage gap. The science is quite clear on this matter.

            1. What about controlling for jurisdiction?

              Industry?

              employment?

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