pageok
pageok
pageok
Unfounded Attack on the ACLU:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

agesilaus:
You mention airport searches as one exception to the rule, but searches for court house entry would seem to be a more important exception. Do judges find that their safety is more important than that of subway riders?

Agesilaus
8.5.2005 2:03pm
Mahan Atma (mail):
"When the ACLU wins their attorneys are paid hundreds of thousands of dollars by tax-payers."

Ah yes, it's those rich, money-grubbing ACLU attorneys!

Of course the attorneys themselves actually get paid a small fraction of what a first year associate at a firm earns...

And of course, their lawsuits are frivolous -- so why is Mr. Swarthout concerned about them winning and collecting all those fees?
8.5.2005 2:12pm
OrinKerr:
Very good post. I haven't taken the time to study this in detail, but my vague sense is that the ACLU's legal argument here is indeed quite credible.
8.5.2005 2:12pm
Adam (mail) (www):
Fridays demand relevant movie quotes:

"For the record: yes, I am a card-carrying member of the ACLU, but the more important question is, 'Why aren't you, Bob?' Now this is an organization whose sole purpose is to defend the Bill of Rights, so it naturally begs the question: why would a senator, his party's most powerful spokesman and a candidate for President, choose to reject upholding the Constitution?"

--Aaron Sorkin, THE AMERICAN PRESIDENT
8.5.2005 2:20pm
Mschette:
I wish you would go back on O'Reilly's show to tell him that.

Very well said.
8.5.2005 2:31pm
Christopher (mail):
Very thoughtful post. I have never studied law but I had an idea for a solution to the random search problem. Do you think that it would ameliorate the ACLU and co. if all evidence found during a non-probable causee search was inadmissable in trial except for evidence pertaining to an imminent terrorist attack? That would mean that the police could not use this enhanced power to go after common criminals possessing regular illegal items (guns, drugs, liquor purchased out of state), but rather would be hesitant to search anyone who wasn't a terrorist. While not ideal it would seem to me to at least prevent the slippery slope arguement and call the bluff of anyone who wants to use terrorism as an excuse to violate freedoms for other reasons, while at the same time allowing for a certain amount of random searching. This occured to me as possibly the only viable compromise between the rights croud and the security crowd.
8.5.2005 2:33pm
mike maddox (mail):
Your objections are overwrought. The ACLU may not be a criminal organization but it is certainly dishonest. It is not looking out for the interests of Americans, just a select group of Americans. The ACLU stood silent through decades of speech codes and 'verbal harassment' regulations on American campuses, all aimed toward non-liberal voices. It supports gender and racial discrimination, including outright quota systems. It excuses violations of the Constitution against non preferred groups while pretending to protect everyone's rights.
I have lost respect for the ACLU and for those who demand that we respect the priesthood of lawyers.
8.5.2005 2:35pm
Public_Defender:
The ACLU might end up doing the citizens of NY a favor. If the ACLU didn't sue, the constitutionality of the searches would probably first be tested in a criminal motion to suppress. If the searches are found unconsitutional there, a guilty criminal could go free.

As to the "Priesthood of lawyers" comment, This isn't the first time I've seen this kind of reference in the comments. It looks like this site is starting to draw the attention of militia types.
8.5.2005 2:45pm
mike maddox (mail):
"militia types"... I love it. America cannot survive criticism of lawyers.
8.5.2005 2:51pm
Some Guy (mail):
Hey, I'm a lawyer, and I understand how important the right to petition is to democracy. I also understand how the easy it is to convince a judge that he's smarter than the electorate or their representatives, thereby pissing all over the very heart of representative democracy.

People aren't angry that the ACLU successfully petitions, they're angry because, in their eyes, the ACLU is a handful of lawyers who is somehow able to tell 300 million people what to do and what to think.

(Hell, I don't like the ACLU after seeing those Harvard scumbags lining up to represent the Nazis of the 21st century like it was some kind of prize. Don't give me that "ethical obligation to represent the worst to protect the best" b.s., either. Those guys wanted it. Bad. That says all you need to know about them.)
8.5.2005 2:51pm
Been There, Done That:
Does someone have a cite for "the Constitutional duty of the United States government which requires the protection of citizens?"

Thanks.
8.5.2005 3:01pm
Jay777 (mail) (www):
While I appreciate the link Mr. Volokh, and the lawyerly educated dissention, I don't see many of your points. I see the point that their suits may not be legally defined as frivalous, but many of their lawsuits are definitely dangerous. They consistently defend the enemy, and oppose the government. Perhaps they are merely following blindly to an ideology. I won't blame the framers for the abusive twisting of their intentions by the ACLU, but I will blame the Justices for ruling in favor, and the ACLU for taking an absolutist, elitist approach with no account for consequence. If they are successful, and NY subways get bombed killing thousands, we can partially thank the ACLU. Perhaps they are only misguided and in need of reform, but they are often dangerous and reckless. Perhaps my lack of a law degree enables me to see through the ACLU's crap.
8.5.2005 3:05pm
Doug Sundseth (mail):
"As to the "Priesthood of lawyers" comment, This isn't the first time I've seen this kind of reference in the comments. It looks like this site is starting to draw the attention of militia types."

Do you find that argumentum ad hominem works well in defending your clients? If so, it might be useful to note that other audiences can be less tolerant.

Further, you might consider how its use here would relate to paragraph one of the rules for commenting. I'd also recommend a glance at the paragraph that begins, "Here's a tip".

As to the substance of Prof. Volokh's post, I agree with his call for moderation in terminology, even while disagreeing (strongly) with some of the tactics and views of the ACLU. Perhaps I should also note that I have been, though am no longer, a member of the ACLU, and that my decision to leave the group was directly related to my aforementioned disagreements.
8.5.2005 3:08pm
Adam (mail) (www):
And it wasn't just policy papers -- the ACLU of PA was involved in perhaps the biggest college speech code controversy of the 1990s, Penn's Eden Jacobowitz "water buffalo" case.
8.5.2005 3:08pm
Eugene Volokh (www):
What's your evidence that reading the Fourth Amendment as prohibiting suspicionless searches is "abusive twisting of [the Framers'] intentions by the ACLU"?
8.5.2005 3:09pm
Been There, Done That:
Mr. Swarthout appears to be a resident of Kentucky, where the subways aren't very busy and people don't mind being harrassed on their way to anywhere by random police searches.

I don't have much use for many of the ACLU's positions. Certainly they take some positions that can be legitimately attacked.

However, this appears to be one of the more obviously meritorious cases they have taken in recent memory. The diatribe appears more anti-lawyer than anything else.

BY the way I'd still like that cite about the government's constitutional duty to protect citizens. I could file alot of lucrative civil rights lawsuits with that one.
8.5.2005 3:15pm
Steve:
If I were to make a speech saying 9/11 was America's fault (for decades of imperialism, yadda yadda yadda), I would be universally condemned. Yet some commenters have no problem opining that if the New York subways are bombed, it will be the ACLU's fault for bringing this lawsuit.

The fact that some condemn the ACLU for the mere act of asking the courts to determine the constitutionality of government action is baffling.

In any event, you will find very few people who contend that the NY subway searchers are in any way effective in stopping or deterring terrorism, considering that a terrorist is free to refuse the search and then walk a few blocks to the next subway stop. And yet some will defend this useless program to the death against the ACLU's attempts to challenge it.
8.5.2005 3:19pm
alkali (mail):
The ACLU stood silent through decades of speech codes and 'verbal harassment' regulations on American campuses, all aimed toward non-liberal voices.

This is not correct. The first campus "speech codes" were put in place in 1989-90; the ACLU went on record as opposing such codes in 1990.
8.5.2005 3:20pm
Ogre (www):
I agree with Mike -- the ACLU DOES defend terrorists, and they use terrorist tactics -- they threaten and bully to get their way. They may be successful, but Bonny and Clyde were successful for quite some time, as was the Boston Strangler.
8.5.2005 3:21pm
Steve:
"Threatening" is now a terrorist tactic? Threatening what? Threatening to file a lawsuit?

Yes, poor helpless government. We must protect them from the awful bullying of the ACLU.
8.5.2005 3:24pm
Eugene Volokh (www):
I second Steve's point: It's a "terrorist tactic" to use one's legal rights, and in fact one's constitutional rights under the Petition Clause, by asking a court to resolve a dispute? That's a pretty troubling cheapening of the term "terrorist."
8.5.2005 3:32pm
Jay777 (mail) (www):
I'm not only talking about the 4th amendment but the entire twisting of the Constitution. And Steve...I don't think Ogre was referring to the government the ACLU threatens, but the small schools and local communities that can not afford to defend theirselves against the taxpayer funded ACLU.
8.5.2005 3:37pm
Jay777 (mail) (www):
To ask a Court to resolve a dispute??? The ACLU goes out looking for the trouble it causes.
8.5.2005 3:38pm
Cheburashka (mail):
I rather agree with the ACLU about this one.

The bag searches are a pointless waste of time, performed for the purpose of letting cops bill unnecessary overtime and creating the appearance of doing something.

Its important to remember _why_ police violate civil rights: In the NYPD's case, because they are, to a man, too lazy, incompetent, banal, or just plain dumb to conduct a proper investigation.

When the NYPD catches a terrorist - a single one - BEFORE they pull off an attack, I'll reconsider. Until then, they're a bigger threat to me than Al Qaeda is.

Remember, this is the same PD that DIDN'T BOTHER TO READ SHEIK RAHMAN's documents, which it had in its possession after the first attack, and which would have IF THEY HAD BOTHERED TO READ THEM revealed a great deal about Al Qaeda's network in America.
8.5.2005 3:41pm
Adam (mail) (www):
"Taxpayer-funded"? What -- that when they *win* a case (i.e., it was meritorious), they can recoup attorney's fees?
8.5.2005 3:47pm
Public_Defender:
The term "priesthood of lawyers" has a militia-like ring to it. Some militia types see lawyers as colluding to keep everyone else down (probably because we won't raise their frivolous arguments in court).

But I did some googling, and it's clear that this is NOT a militia catch phrase. I apologize for the above post.

But I stand by the rest of the post. The ACLU is doing us a favor by resolving the issue in a civil case. Otherwise, it would be litigated in a criminal case that could end up letting guilty people go free.
8.5.2005 3:49pm
Milhouse (www):
The reason the NY searches are indeed constitutional is that they happen only with the consent of the bag's owner. The searches happen before you swipe your card, and anyone is free to decline the search and leave the station. Which makes it kind of stupid, because nobody carrying a bomb is going to consent to a search, and all they have to do is try another entrance, or walk to the next station and try again; but it also means that nobody's rights are violated.

The MTA is entitled to impose any not-completely-arbitrary restriction on entry into the system. One long-standing rule is that nobody may enter without paying a fare; another, now, is that nobody may enter who, upon being asked by a policeman to consent to a search, declines such consent. I don't see a way to legally distinguish between these two rules.
8.5.2005 3:53pm
Jay777 (mail) (www):
I don't disagree that 'random' searches may be inaffective, but if we were to profile search the ACLU would sue too. So, how can we find that balance between doing nothing, making us safer, and not violating our rights?
8.5.2005 4:02pm
Skid:
Reading the posts, it seems like a lot of people have strong objections to the ACLU's positions. Fine. But in what sense does that disagreement translate into stripping them, or the people who choose to pursue their rights through them, of their day in court? I am only a second year law student (who by the way has worked at both the ACLU and one of those firms mentioned before), but my limited understanding of the Constitution is that its protections are meant to apply to all of us. So, while Nazism is repugnant to you and me, does it stand to reason that they shouldn't have a chance to be heard? If not, then I'd like to remind everyone of the famous Pastor Niemolle quote: 'First they came for the Communists, but I was not a Communist, so I said nothing. Then they came for the Social Democrats, but I was not a Social Democrat, so I did nothing. Then came the trade unionists, but I was not a trade unionist. And then they came for the Jews, but I was not a Jew, so I did little. Then when they came for me, there was no one left to stand up for me.'
The ACLU has and always will take unpopular positions because often it attempting to defend a set of rights against a majority position. Of course, this will lead to some revulsion from the majority, but that's the nature of the system. Some rights are too fundamental to be subjected to the will of the masses. As Madison said, "the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority."
On a side note, as a current resident of New York, and considering that the ACLU is litigating so that I don't get searched randomly on my way to work, I'd like if everyone stopped calling me a "terrorist":

Ogre said "I agree with Mike -- the ACLU DOES defend terrorists, and they use terrorist tactics -- they threaten and bully to get their way. They may be successful, but Bonny and Clyde were successful for quite some time, as was the Boston Strangler."
8.5.2005 4:06pm
scarhill:
I wouldn't state it as strongly, but Cheburashka's point is a good one. As I understand it, the NYPD policy allows people who don't wish to be searched to simply refuse nad leave the station. So any terrorist with half a brain won't be caught, he'll simply leave and try again later when the police aren't searching.

Like much of the airport security apparatus, the policy is all for show. It gives the appearance that the authorities are "doing something", while doing nothing to actually increase security.

Jim
8.5.2005 4:12pm
Cuban Pete (mail):
Let's not forget that Public Transit is NOT a right, but a privilege.
If the City sees fit to enforce screening to protect their investment, it has that right.
Would the "aclu" be whining if there were metal detectors &bomb-sniffing booths at every entrance?
Is it really necessary to hinder EVERY user just so that a group....that's been shown to produce terrorists...isn't "offended" ?
Oh...by the way....
Nice job ,there,protecting the child molesters who call themselves nambla.
I'm sure the aclu felt THAT was in the best intrest of America, also.
8.5.2005 4:23pm
Flaj (mail) (www):
There are two items regarding the ACLU which garner most of my ire, and they come i to play here. First is that the ACLU is funded by tax payer dollars. They are a politically charged organization on the wrong side of the aisle. Let's face fact, they support a judge who would rewrite the constitution from the bench, yet are against a judge who upholds the rule of law and makes decisions in regards to upholding the constitution.

Secondly, the easiest way for law enforcement to protect the citizens is to have the full access to do their jobs. Law enforcement is afraid to search those who would fit the mold of a terrorist for fear of a profiling lawsuit. All they will need to do is search those they suspect of possible terrorist activity not every citizen to be efficient and effective.
8.5.2005 4:26pm
Been There, Done That:
ahhhh, the ol' "privilege v. right" bugaboo.....

That hasn't been part of our law since forever, if it ever was.

In any event, yes, one DOES have a right to travel, interstate or intrastate, by foot, car, subway, or jetliner. Government cannot restrict that right unreasonably.
8.5.2005 4:28pm
Cuban Pete (mail):
Skid
Neither Bonnie &Clyde nor the Boston Strangler were trying to rip down the moral fabric of the Nation.
8.5.2005 4:29pm
Adam (mail) (www):
Again, someone: how is the ACLU "funded by tax payer dollars"?
8.5.2005 4:29pm
Cuban Pete (mail):
Been There Done That
It's the USE of the systems that I'm pointing to here.
No one here is saying that jihad Mo can't walk from point to point.
No one said that he couldn't drive a car.
I stated that Public Transportation is not a right.
&it isn't.
8.5.2005 4:33pm
Skid:
is that suspicion linked to brown skin and beards? as long as we're talking about rights and privileges, let's make it clear that the "City" has no rights at all, only responsibilities and powers...as for metal detectors at every entrance, sure, that'd be great, if you really want to stop terrorism go for it...of course, i'm sure that'd have no effect on congested new york subway stations at all right?
are we really so comfortable in the notion that terrorism is restricted to a particular ethnic group? are you willing to risk that bombing in the subway station that kills thousands on those probablities? after all, john walker lindh, timothy mcveigh, richard reid, eric rudolph...any of these names familiar? and let's say we do adopt a profiling procedure, and a white, 40 year old male drops a ricin bomb in the middle of Penn Station...should we lay the blame for the eradication of New York at the feet of those advocating profiling?
as for the child molestors, i think the issue is rather that the "best interest of America" is served when constitutional rights are protected, not when we alter their effectiveness based on a group's popularity. There can certainly be disagreement on the scope of those rights, and whether they stretch to "child molestors," but that disagreement doesn't prevent someone from going to court to get resolution. One last question--everyone keeps saying the ACLU is funded by tax payer funds...can someone clear this up for me? My impression is that a wing of the ACLU has tax exempt status, and that the rest is largely funded by donations?
8.5.2005 4:39pm
Jay777 (mail) (www):
The United States Congress, roughly thirty years ago, passed a provision in United States Code section 1988 that requires taxpayers to pay attorneys in civil rights cases. It was intended to help those that could not afford to defend their civil rights, the ACLU uses it to fund its agenda, and pretty much turned its intent on its head. They go after small schools and communities without the funding to match, nor the resources. There is legislation in the House right now that is seeking to ammend this provision to not apply to "establishment clause" cases.
8.5.2005 4:45pm
mike maddox (mail):
FWIW, since I am the only "Mike" here, I strongly object to the "I agree with Mike -- the ACLU DOES defend terrorists..." remark. I said no such thing, did not address that issue and disagree with the remark itself.

(sigh)
8.5.2005 4:49pm
Cuban Pete (mail):
Skid
Of the 19 that attacked the Towers...how many weren't of a middle east influence?
The attackers of the Cole?
The attackers in London?
The list goes on &on.
If the attackers were white, mid-aged males, would the "aclu" still fight for their "freedoms"?
I think not!
8.5.2005 4:51pm
reader:
Jay777:

Please point to one example of where the ACLU has recovered attorneys fees under U.S.C. 1988 in a frivilous civil suit.
8.5.2005 4:54pm
anothereugene:
"The United States Congress, roughly thirty years ago, passed a provision in United States Code section 1988 that requires taxpayers to pay attorneys in civil rights cases."

This is misleading. Section 1988 allows attorneys of the prevailing party in a civil rights case to collect fees, which renders somewhat silly the argument that it allows the ACLU to file nonsense lawsuits with impunity. Adam had it right earlier.
8.5.2005 4:55pm
Jay777 (mail) (www):
Mike, the ACLU DOES defend terrorists. And yes, it is ridiculous.

Example 1

Example 2

And Defend these actions for those that love the ACLU
8.5.2005 5:01pm
Skid:
first, sorry mike, didn't mean to include you in that...

second, 42 U.S.C. 1988, from a quick scan, seems to allow attorney's fees for the prevailing party at the court's discretion. so, if the aclu is winning attorney's fees, then, it means that it's winning the suits...which would seem to get back to prof. volokh's point--if you don't like that, campaign against the judges, get a constitutional amendment, talk to your congressman and amend 1988. it's not the aclu's fault for winning.
and as to the little school communitites, etc, it stands to reason that if they're having to pay these atty's fees, then they're losing these cases...in our legal system, doesn't that mean that they have some fault?
8.5.2005 5:01pm
Cuban Pete (mail):
Here's a few of the groups that finance the aclu. Notice that most all of these are leftist organizations.
.
Ford Foundation $925,000 2002 Rockefeller Foundation $275,000 2002 David &Lucile Packard Foundation $1,600,000 2001 Ford Foundation $900,000 2001 Ford Foundation $465,000 2001 Ford Foundation $300,000 2001 Ford Foundation $100,000 2001 Clark Foundation $70,000 2001 Clark Foundation $35,000 2001 George Gund Foundation $35,000 2001 W. K. Kellogg Foundation $25,000 2001 Peninsula Community Foundation $25,000 2001 Community Foundation of Greater Memphis $10,000 2001 Ford Foundation $1,500,000 2000 Ford Foundation $250,000 2000 Ford Foundation $187,500 2000 Ford Foundation $7,000,000 1999 Ford Foundation $800,000 1999 Ford Foundation $600,000 1999 Huber Foundation $400,000 1999 Ford Foundation $200,000 1999 Open Society Institute $200,000 1999 Open Society Institute $200,000 1999 Open Society Institute $125,000 1999 Open Society Institute $100,000 1999 Open Society Institute $100,000 1999 Ford Foundation $1,000,000 1998 David &Lucile Packard Foundation $600,000 1998 Carnegie Corporation of New York $500,000 1998 Open Society Institute $200,000 1998 Open Society Institute $200,000 1998 Ford Foundation $187,500 1998 Open Society Institute $150,000 1998 Open Society Institute $107,300 1998 Open Society Institute $100,000 1998 Open Society Institute $100,000 1998 Open Society Institute $100,000 1998 Open Society Institute $100,000 1998


I only included donations 6 figures or higher.


Even though they say thay're all for the Constitution, they don't recognize the Right to Keep &Bear Arms.
8.5.2005 5:05pm
Jay777 (mail) (www):
The legal system in my opinion is broken, and corrupted, and the ACLU along with them taking full advantage of it. I don't disagree with Mr. Volokh's point that there are others we can blame, but my point was that many of the suits the ACLU file are endangering, and anti-American. These are my opinions. Anyway, thank you all for the nice debate. Its good to see people who think for themselves and don't just agree with whatever Mr. Volokh says.
8.5.2005 5:09pm
Skid:
cuban pete,

you're right about all of those people...they were all of "middle east influence." (not exactly sure what that means...i like falafel, does that mean i might be a terrorist?) so, from that argument, are you suggesting that terrorism just doesn't happen in other ethnicities? what about the weather underground, who detonated an explosion in haymarket, or who bombed police cars?

and i'd like to remind you that the facists who wanted to march in skokie, i'm pretty sure they were all white...doesn't seem very consistent with the Nazi philosophy to be inclusive...but, of course, it's always easier to throw out conclusory statements about the aclu, like, no, they won't represent white people, than actually looking at the facts...
8.5.2005 5:10pm
Jay777 (mail) (www):
Thanks Cuban Pete. I'm sorry others can't see that this group is corrupted to the bone.
8.5.2005 5:11pm
Cuban Pete (mail):
Skid
I was merely using YOUR idea about 40-ish white males.
I'm not saying that that other "ethnicities" , as you put it, aren't capable of terrorism.
But, can you point out another viable group that's been credited with attacks in the past &threaten more attacks in the future?
8.5.2005 5:22pm
anothereugene (mail):
The notion that "supported by leftist organizations" equates to "corrupt to the bone" is a bit much for me.
8.5.2005 5:25pm
Public_Defender:

If the attackers were white, mid-aged males, would the "aclu" still fight for their "freedoms"?
I think not!

Wrong. The ACLU has been a leading force challenging sex offender registration and residency restriction laws. Most sex offenders are middle-aged, white men.

Maybe we should start profiling middle-aged, white men for non-random searches and interrogations. It might catch more criminals than targeting Arabs.
8.5.2005 5:29pm
reader:
"Mike, the ACLU DOES defend terrorists. And yes, it is ridiculous."

I like the disclaimer at the bottom of your links that the information contained in the pages does not comport to contain anything which has been "proven in fact."
8.5.2005 5:33pm
Cuban Pete (mail):
"Public Defender"
Who do the cops look for when a little girl or little boy go missing?!
Middle aged white males!
Where's the cries of profiling?
The cries are not needed. Most prudent Americans realize that that group of people commit 99% (fictional number....I don't know the actual % )of crimes against young children.
8.5.2005 5:33pm
Skid:
here's some:





however, not being a terrorism expert, i won't wager a guess which of these groups are "viable." the point is rather that terrorism, violence, criminality is not confined by racial boundaries...to take a limited viewpoint of it leaves our national security overwhelmingly underinclusive.

can you point to an example of the profiling you speak of in relation to the disappearance of children?
8.5.2005 5:45pm
Hosedragger (www):
Terrorism has been being committed by young (16-35 year old) middle-eastern men. All of them from the religion of Islam. Several in Israel have been female, but again, Middle-Eastern descent. Could someone here please tell me what the purpose is of searching ANYONE other than that description? If anyone should be suing anyone, it should be caucasion, black, or asian peoples, since they don't come anywhere near the description. In the interest of not hurting someone's feelings, the people responsible for terror will be let through, where-as someone who isn't even remotely near the profile gets searched.

Don't believe me? My money is on the fact that no one here, besides me, has actually read the "9-11" report. In it you will see that one of the main contributing factors to allowing the 19 MIDDLE_EASTERN YOUNG MEN OF ISLAMIC FAITH through and onto the planes was the exact thing that the A.C.L.U. is complaining about.

Until you idiots on the left actually come to grips with who is trying to kill innocents and who isn't, you need to keep your mouths shut and let those that want us safe do their jobs. If you are that concerned about it, then actually work to do something about the 18,000 murders committed in this country every year.

And do NOT bring up Timothy McVeigh. While you can only cite ONE instance of a domestic terrorist, let me make something very clear. He DID NOT bomb the Murrah building in the name of a God/Religion/Group or anything else. It was an act done to protest the Clinton Administration's use of force in the killings at Ruby Ridge and Waco, Texas. It DOES NOT equate on ANY level.

When a detective is told that the serial killer looks a certain way, he does not detain someone that looks nothing like him. Tell me why this should be different.
8.5.2005 5:46pm
Skid:
sorry, apparently, i can't figure out the links option...in any case, if you'd like reports of recent domestic terrorism acts that were foiled, then check out the southern poverty law center's intelligence report on domestic terrorism...
8.5.2005 5:49pm
Guest:
"And do NOT bring up Timothy McVeigh. While you can only cite ONE instance of a domestic terrorist, let me make something very clear. He DID NOT bomb the Murrah building in the name of a God/Religion/Group or anything else. It was an act done to protest the Clinton Administration's use of force in the killings at Ruby Ridge and Waco, Texas. It DOES NOT equate on ANY level."


Unfortunately, the terroists act to protest the Bush and Clinton Administration's use of force and military installations in Iraq, Israel, Saudia Arabia and the rest of the Arab World.

Sadly, this does equate on many levels. McVeigh was no better and no worse.
8.5.2005 5:50pm
Bill999:
Fact is, the ACLU supports and defends anything that undermines the social structure in America.

Give me a break, we're talking about stinking lawyers here! And at that, lawyers that have a reputation for supporting the most sick, twisted, deranged, and sadistic perverts and animals in society —, murdering child molesters.

We're talking about the same sick and twisted ACLU that defended NAMBLA (the North American Man Boy Love Association that believes in sex with boys by 8 or it's too late.) The same sick, twisted, deranged lawyers that say NAMBLA's POSTED INSTRUCTIONS ON HOW TO BE SEXUAL PREDATORS WITH CHILDREN AND GET AWAY WITH IT, EVEN TO THE POINT OF MURDER!!

When any HONESTLY takes a look at the ACLU's history, and what they have defended in the last 10 - 20 years, they are deranged lawyers bordering on outright evil!
8.5.2005 5:50pm
Public_Defender:
Cuban Pete:
Since there are all of those hidden white male sex offenders out there, maybe the cops should be pro-active--start suspicionless searches of white men, their papers, and, most importantly, their computer. After all, failing to do so would be to fail to protect children from their right not to be abused.

This is what some are demanding to do to look for terrorists. My guess is that white male sex offenders have harmed a more people in this country than terrorists have.
8.5.2005 5:59pm
Rahul Sinha:
"Cuban Pete" and "Jay777":

1) Do you really think that civil rights don't matter if the establishment clause is at issue?
2) echoing "anothereugene", do you really believe that to be labelled "leftist" is to be (or at least labelled to be) corrupt?
3) You do realise the reason the ACLU declines 2nd Amendment cases is due to the principle that the right to bear arms clause implies and accepts regulation? This is a principle many/most conservative justices accept.
4) Do you know what the definition of a frivolous lawsuit is? Do you believe that any lawsuit that is not in line with Mr. Bush's agenda is "frivolous"?
5) If an organisation will defend Nazis and suspected terrorists, isn't it possible they involve themselves in the defence despite the client, instead of due to the client?
6) Is it possible that the ACLU defends "suspected terrorists" because of the nature of their prosecution (tribunals, denial of the right to cross-examine one's accuser) rather than some race-based affinity?
7) Would you support the use of military tribunals, secret testimony and a cloudy appeals process to go after the members of the Michigan Militia (two of whom were involved in terrorism) and Operation Rescue (several of whom have performed terrorist acts)? Because if this is not true, (and you support these policies in general) I can only assume you have no problem with murders, you just don't like "colored" murderers (or non-Christian ones I suppose).

Allow the next Democratic president the right to use all of these new "Homeland Security" enhancing powers to arrest and imprison the entire Religious Right for the actions of its fanatics, and perhaps you'll have the moral legitimacy to ask for their application on Muslims.

For the record, I am neither Christian nor Muslim, nor have any antecedents from either camp. I am not a member nor employee of the ACLU. I am, proudly, a Democrat.

-RS
8.5.2005 6:03pm
Cuban Pete (mail):
Skid
The propensity to hit soft targets &public transportation leads to one particular group. To overlook this group is a deadly mistake.
.
.
.
The Jessica Lunsford case comes to mind.
The local Constabulary canvassed the area searching for "persons that might fit the profile"....
8.5.2005 6:05pm
NYgirl (mail) (www):
Commenter Some Guy said it best; the worst thing about the ACLU is that they have fully succumbed to the hubris that some judges &lawyers fall into. They believe that it is acceptable to subvert the democratic process by legislating from the bench.

Mr. E. Volokh, I'd like to know why you don't consider any of the ACLU's lawsuits frivolous, by your definition of "warranted by existing law or by a nonfrivolous [i.e., legally plausible] argument for the extension, modification, or reversal of existing law or the establishment of new law".

And why do you feel so threatened by the opinion of American citizens who feel that the ACLU is not a good organization? The post is only petitioning for an investigation, not summary execution.
8.5.2005 6:06pm
NYgirl (mail) (www):
Skid, if I understand you correctly, you defend the ACLU's defence of Nazi's with Pastor Niemolle's "first they came for..." quote.

How do you feel about pedophiles? The ACLU has defended NAMBLA.
8.5.2005 6:12pm
Cuban Pete (mail):
Rahul
I think you've mistaken me for someone else.
I've not even used the word "frivolous"
Get your facts right before you start a rant.
/typical leftist crap
8.5.2005 6:12pm
Skid:
So, it is a subversion of the democratic process to utilize the courts that the democracy created? In an attempt to validate one view of the rights the democracy purportedly protects?

from a very cursory reading of some lunsford materials, there is no mention of racial profiling being used...could you send me the link where that quote is found?

and despite mr. hosedragger's comments to the contrary, the timothy mcveigh incident is related...there were "soft targets" if i'm understanding the term correctly, and while not using public transportation, it did involve a federal office building...

it's no surprise to say that the 9/11 attackers were young, Muslim males...that's been pretty well covered by every major news outlet...it's just short sighted to make the assumption that therefore, every credible threat to our country will come from young, Muslim males...if you want to search everyone, and can do it in a constitutional manner, then go for it...
8.5.2005 6:18pm
Skid:
NYgirl...are you looking for me to say I love pedophiles? Does that make it easier to characterize this as a "typical leftist rant?" Did you read the NAMBLA case?

Actually, I do really like the First Amendment, and I like when a group fights for robust freedom of speech. I like it when they do it for Oliver North just like they do it for NAMBLA...the reason? Because at some point down the road, I don't want close minded people attempting to abridge my ability to speak out...hence the Pastor Niemolle quote...of course, it's always nice to be able to pick and choose when the First Amendment applies, but only really when you get to do the picking...
8.5.2005 6:22pm
New Yorker:
Umm, Skid, Cuban Pete was wrong to claim that the London bombers were of a "middle east influence." Three of the bombers were of Pakistani origin (which is Southeast Asia, not the Middle East, and generally indistinguishable in their features from Hindi and Christian Indians), and the fourth was from the West Indies (forget which Island exactly) and a convert to Islam.

As for the slippery slope ... I was at a deposition this week and the videographer (who was Latino) casually asked the attorneys assembled whether it was OK for the police to check his bag as he EXITED the subway. Granted they may have asked his permission (that wasn't clear, but I recognize that if so it was constitutional under current caselaw) but even if he gave it, it was hardly truly voluntarily. But of course he didn't want to make it seem as if he were unwilling to cooperate in the global struggle against extremism.
8.5.2005 6:22pm
Cuban Pete (mail):
Skid
Keep living in that bubble!
Do you think these very animals you seek to protect would spare your life?
It's also well documented that their "religion" requires them to "destroy all infidels".
Would you still feel this way when the next public transportation attacked is filled with aclu attourneys &leftists.
&with that, I'm outta here.
There's no use in arguing with a fool.
8.5.2005 6:25pm
NYgirl (mail) (www):
Skid, you said:
NYgirl...are you looking for me to say I love pedophiles? Does that make it easier to characterize this as a "typical leftist rant?"

Sounds to me like your jumping to unfounded conclusions. I merely asked our views on an issue. I did not say you are fill-in-the-blank. I did not characterize you. However, you have characterized me.
8.5.2005 6:28pm
mike maddox (mail):
I wonder how many here who would agree that the use of racial classifications as 'only a tool' in college admissions or employment is permissable would disagree that the same is permissable in public security efforts.
8.5.2005 6:38pm
Skid:
you are right nygirl, so i apologize, i did characterize you...

so, there are my views...i believe in uninhibited freedom of speech that extends to even unpopular viewpoints
8.5.2005 6:45pm
Andy (mail) (www):

NYgirl: "How do you feel about pedophiles? The ACLU has defended NAMBLA."

True. BUT CONSIDER:

The ACLU defends NAMBLA's right to petition the government to change laws. Now, I hope that NAMBLA loses and the laws remain on the books as they are currently. But to paraphrase Voltaire, I will defend to the death their right to petition the government 'til they are blue in the face.

Here's a link to the exact case. NAMBLA is being sued because their web site and fliers allegedly influenced a man to commit a heinous murder. (According to the ACLU, the materials at question DO NOT advocate any criminal activity.)

http://www.wired.com/news/politics/0,1283,38540,00.html

Now, some people will say, "So what! NAMBLA is evil and they must be silenced to prevent pedophiles from being influenced to commit crimes."

Unfortunately, that is the same line of reasoning that allows people to call for banning AC/DC (http://www.crabsodyinblue.com/acdcnightstalker.htm) because someone may be "influenced" to commit a crime.

Or for that matter, someone using that reasoning could try to ban the NRA for supposedly "influencing" the perpetrators of the Columbine massacre.

I don't agree with all of the ACLU's positions (I am a former member), but there are times where I am glad to have them around if only to teach us a lesson about jumping on the bandwagon before the musicians have had a chance to tune up first.
8.5.2005 7:11pm
NYgirl (mail) (www):
Thanks for the apology Skid. No hard feelings :)

You are entitled to your views; however, others are entitled to theirs too. The effort that Mr. Volokh is criticizing is, as I mentioned earlier, only asking for an investigation, not summary execution.

Just as the ACLU can characterize Guantanamo as an illegal torture camp (I am paraphrasing), so can others characterize the activities of the ACLU as pro-terrorist &harmful to American society.
8.5.2005 7:14pm
teh (mail):
Yes, most terrorists that have attackted the US are Arab. I would also guess that its most likely that the demographics of terrorists in the near-future would be similar. But the constitutional requirement is still that the search be reasonable, not that the person being searched has is statistically more likely to be a terrorist based on ethnicity.
8.5.2005 7:22pm
teh (mail):
And if the lawsuits are really meritless, why would it be too burdensome for these supposed small towns and school boards to defend themselves? It can't be too unreasonably expensive for a government agency to defend against a lawsuit with no basis.
8.5.2005 7:25pm
NYgirl (mail) (www):
Andy, if you are in favor is the ACLU's supporting NAMBLA's petitioning government to change the laws, why do you object (it appears to me that you do, if not, please correct me) to Jay's site petitioning government to change the laws?
8.5.2005 7:35pm
Rob H. (mail):
The ACLU is very anti-christian in its policies towards the "happy Holidays" illusion at Christmas time. The ACLU has done more harm than good and I would welcome their bankruptcy and downfall at any time. Tax payer funding should be stripped from the ACLU. If they need money, let them work like everyone else to get it. I was glad to see their loss with the Boy SCouts and the cross case in California. People should have run them out of town! The last thing we need is pro-communist loudmouth lawyers telling us how to run our churches and schools. We as Christians belive what we do becuase we belive the Bible and in the person whose name starts with a J that the ACLU hates. That's right its JESUS! All of the churches of America should stand up to these bullies and demand them to step down on issues concerning our faith. If not, we pull all funding from every humanitarian aid organization in existance and not spend one dime on Christmas until they do so! I persoanlly am not afraid of the ACLU and none of us should be. They are only a few rich smartelic lawyers. They cannot stand up to millions. They don't have the resources or the courage to face us outside the courtroom in a real fight. Without the courtroom the ACLU is just a frightened bully waiting to collect his lunch money and realizes that the little kid he has been picking on is going to fight him today and everyday from now on. Maybe we shouold charge them with treason and have the government infiltrate and break them up and disperse of their wicked evil money.
8.5.2005 7:47pm
Josh (mail):
Yes, I don't see what the difference is. You would oppose a site that is exercizing its free speech to protest the government to change its laws dealing with judicial tyrancy, and the ACLU, but you champion an organization defending Nazis, NAMBLA, etc. ???? What am I missing here?
8.5.2005 7:50pm
reader:
NYGirl, I think you're removing critical words from Andy's post. He said that "The ACLU defends NAMBLA's right to petition the government to change laws."

I can't speak for Andy, but I support NAMBLA's right to petition the government, but not the contents of the petition. Everyone ought be able to make their case to the government, even if their case is a bad one.

That's entirely consistent with criticizing the anti-ACLU site. The information on the site is wrong-headed, misleading, and if followed, would result in bad policy. I don't think the administrators of the site should continue to maintain it. But I certainly think they have a right to do so, and would be willing to defend them against government efforts to censor the site.

Just as they have a right to criticize the ACLU though, we have a right to criticize them, especially for misleading information.
8.5.2005 7:53pm
reader:
"What am I missing here?"

See above. You are missing that criticizing the content of someone's ideas and opposing government efforts to censor those ideas are entirely consistent.
8.5.2005 7:55pm
Andy (mail) (www):
NYGirl: "Andy, if you are in favor is the ACLU's supporting NAMBLA's petitioning government to change the laws, why do you object (it appears to me that you do, if not, please correct me) to Jay's site petitioning government to change the laws?"

reader: NYGirl, I think you're removing critical words from Andy's post. He said that "The ACLU defends NAMBLA's right to petition the government to change laws."

I can't speak for Andy, but I support NAMBLA's right to petition the government, but not the contents of the petition. Everyone ought be able to make their case to the government, even if their case is a bad one.

That's entirely consistent with criticizing the anti-ACLU site. The information on the site is wrong-headed, misleading, and if followed, would result in bad policy. I don't think the administrators of the site should continue to maintain it. But I certainly think they have a right to do so, and would be willing to defend them against government efforts to censor the site.

Just as they have a right to criticize the ACLU though, we have a right to criticize them, especially for misleading information.

Andy: "Exactamundo." (If I can paraphrase Voltaire, I can quote Demolition Man.
8.5.2005 8:07pm
NYgirl (mail) (www):
Andy I apologize for missing that one word. I am not a lawyer; I speak in normalease :) &did not realize that it was such a big deal. I meant the right to petition.

Andy &Reader, the information on the Stop the ACLU site is "wrong-headed, misleading, and if followed, would result in bad policy", in your opinion. But it is not in the opinions of others.
8.5.2005 8:31pm
Baynative:
The ACLU spends a lot of time and taxpayer money sending New York loi-yahs out into America's bread basket to create lawsuits.

This is not a fair application of the civil rights funding enacted by congress.

But, it is an illustration of the ugly heart that beats inside this destructive organization bent on using our own constitution to destroy our nation.
8.5.2005 9:13pm
teh (mail):
Eugene, are you rethinking the comment policy yet?
8.5.2005 9:20pm
Josh (mail):
Why would he rethink the comment policy? Has someone been uncivil? Or would he rethink it just cuz not everyone agrees with him?
8.5.2005 9:56pm
Thomas Brewton (mail) (www):
Mr. Volokh may be correct that there is nothing criminal about the ACLU's efforts to stop random searches of subway riders. He may also be correct that such searches will not be very effective.

Nonetheless I am entirely sympathetic with the sentiments expressed in the article he attacks.

No matter what the ACLU's announced aims, it must be known by its deeds. Its history reveals a group of radicals little different from Al Queda in its animosity toward the founding principles of the United States. Just as Islam proclaims that it is dedicated to peace, while doing the opposite, the ACLU supports only causes intended to further moral relativism and to undercut the Constitution.

The ACLU is, and has always been since the founding of its immediate predecessor organizations just before American entry into World War I, dedicated to furthering the cause of radical socialism. This necessarily means being opposed to the structure of government laid down by the Constitution and opposed to the moral principles upon which the nation was founded.

It is not coincidental that the ACLU came into existence the same year as the Soviet Bolshevik Revolution in Russia. All of the initial members of what later became the ACLU were active supporters of the Socialist International's program to sabotage the Allies' war preparations; many of them were members of the Socialist Party, notably Socialist party head Norman Thomas.

The ACLU's principal founder and driving force for many years was Roger Baldwin, who among other things was a member of the Socialist Party and a devoted follower of anarchist Emma Goldman. She was an advocate of "propaganda of the deed," what today is called terrorist bombing. One of her followers assassinated President William McKinley in 1901. Baldwin supported her all the way.

He also was a member and active defender of the I.W.W., the radical labor group that assassinated former Governor of Idaho George Steunenberg with a dynamite bomb in 1905, because he had opposed an illegal I.W.W. mining strike. In 1910 I.W.W. members bombed the Los Angeles Times building, killing twenty one workmen.

More than a hundred socialist and anarchist newspapers around the country, defended by the ACLU, regularly featured articles describing how to make dynamite bombs and how to plant them to inflict the maximum number of deaths.

Compare the ACLU's present-day efforts to thwart identifying terrorists with the identical avowed aim enunciated in 1917:

"...maintenance in war times of the rights of free speech, free press, peaceful assembly, liberty of conscience and freedom from unlawful search and seizure."

In private, Baldwin's true aims were more candidly expressed in a 1917 letter to Louis Lochner of the socialist People's Council in Minnesota:

"Do steer away from making it look like a Socialist enterprise...We want also to look like patriots in everything we do. We want to get a good lot of flags, talk a good deal about the Constitution and what our forefathers wanted to make of this country, and to show that we are really the folks that really stand for the spirit of our institutions."

Baldwin made clear his true purpose and that of the ACLU, of which he was always executive director until his retirement after World War II, in his statement before a Federal court in 1918:

"Though. at the moment, I am of a tiny minority, I feel myself just one protest in a great revolt surging up from among the people -- the struggle of the masses against the rule of the world by the few -- profoundly intensified by the war. It is a struggle against the state itself, against exploitation, militarism, imperialism, authority in all forms.... Russia already stands in the vanguard.... and in our own country the Non-Partisan League, radical labor and the Socialist Party hold the germs of a new social order. Their protest is my protest."

Nothing over the years changed Baldwin's beliefs or the purposes of his ACLU. As late as 1935, in the 30th anniversary classbook for his Harvard class, he wrote:

"I seek the social ownership of property, the abolition of the propertied class and sole control by those who produce wealth. Communism is, of course, the goal."

Thus supporting the ACLU is the equivalent of contributing to Osama Bin Ladin for the purpose of destroying the United States.

Thomas E. Brewton
The View From 1776 http://www.thomasbrewton.com/
8.5.2005 10:45pm
Andy (mail) (www):
NYGirl: "Andy I apologize for missing that one word. I am not a lawyer; I speak in normalease :) &did not realize that it was such a big deal. I meant the right to petition. "

No problem. BTW, I'm not a lawyer either- I just play one on BBSs. :) But it is easy to miss the distinction between opposing a position and opposing the right to express that position.

"Andy &Reader, the information on the Stop the ACLU site is "wrong-headed, misleading, and if followed, would result in bad policy", in your opinion. But it is not in the opinions of others."

Exactly. Others have the right to criticize the ACLU as they see fit- Eugene's point here is that some of these criticisms are poorly reasoned and based not on fact but on spiteful invective.

As Justice Learned Hand once put it, "Every idea is an incitement..." Our duty as a civilized society is to strive for insightful incitement.
8.5.2005 10:58pm
Dick King:
The ACLU does not appear to stand ready to defend the second article of the Bill of Rights.
8.5.2005 11:07pm
Reader:
"Why would he rethink the comment policy? Has someone been uncivil? Or would he rethink it just cuz not everyone agrees with him?"

No. Sometimes two people each have opposing positions which are both rational and malleable. Under those circumstances, discussion and comment makes sense, because one or both sides can benefit from an exchange of information.

In other cases, the amount of work necessary to produce meaningful discourse makes the endeavor foolish. See Thomas Brewton's post, for example. It is neither rational - it is full of logical errors, non-sequiters, and historical inaccuracies, not is it malleable - his rhetoric belies a mind entirely unreceptive to change. What would be the rationale for responding to it?
8.5.2005 11:11pm
Adam (mail) (www):
I love having arguments. But there's no point in dealing with people who don't base their arguments on facts -- for example, this whole "taxpayer-funded ACLU" nonsense that people keep spreading despite various people here posting what the law *is*. Or, vitriol against "New York loi-yahs", and I think we all understand what that's code for.
8.6.2005 12:15am
teh (mail):
To clarify,

I don't think that the "taxpayer-funded ACLU" portion has been explained well at all in this thread. I don't really understand how it would be taxpayer funded except in the sense that ACLU attorneys would receive attorney's fees when they win a case against the government. It seems that people are implying that all civil rights cases have their fees paid for by the federal government? I don't know if this is the case, but I will remain skeptical until someone can explain what statute authorizes this or show an example of where the ACLU was compensated for their attorneys fees when they lost.

As long as ACLU critics are here, I do have a few questions. Why do you oppose the ACLU instead of lobbying Congress to change laws or enact constitutional amendments? After all, the ACLU has no authority to make policy, they can only present their legal arguments courts. The court decisions that these ACLU-led cases lead to were not decided by the ACLU, they were decided by judges who were interpreting the law. Attacking an organization that brings lawsuits seems like an odd strategy rather than trying to change the Constitution or the laws that fuel them.
8.6.2005 1:20am
Andy (mail) (www):
teh writes: "Why do you oppose the ACLU instead of lobbying Congress to change laws or enact constitutional amendments? After all, the ACLU has no authority to make policy, they can only present their legal arguments courts. The court decisions that these ACLU-led cases lead to were not decided by the ACLU, they were decided by judges who were interpreting the law. Attacking an organization that brings lawsuits seems like an odd strategy rather than trying to change the Constitution or the laws that fuel them."

Now, as a defender of the ACLU, I can easily answer this question. If you are opposed to flag burning (or the right to have an abortion or the right to have consensual gay sex and not end up in jail), you will probably start by getting a local ordinance passed which reflects the position of how you would like the law to be.

And what happens? The ACLU sues and (most likely) wins. Why? Because in your mind, "the law is on their side."

So you try to move up the court system, hoping that a federal or appellate judge will see that you are clearly right and the ACLU is wrong. But, alas, no dice: even the "conservative" judges somehow concur that the ACLU is "right".

So you try to go to congress. But the ACLU sues to block enforcement of the new federal law supporting your position. So finally, you think, "Aha! I'll have a Constitutional Ammendment passed! Not even the ACLU can have an Ammendment found unconstitutional!"

And there is that pesky ACLU, all over TV, urging congress to reject your ammendment! And if it loses by only a handful of votes, who are you going to blame for not being able to get your way?

So it seems very simple from the point of view of the ACLU opponent: get rid of the ACLU, and when you have a majority (but not a super-majority) in Congress supporting your position, AND you have no organized opposition to your ideas, you will get your way, and voila- flag burners and abortionists and gays will be thrown in jail, and all will be right in the world again.

Of course, there is an alternative strategy. Just get your hands on a time machine- a phone booth, a 1984 Delorean, etc - and convince the anti-federalists to leave out the first ammendment and EXPLICITLY STATE that there is no gosh darn right to privacy!

It may seem silly, but it's probably easier than fighting the ACLU... :)
8.6.2005 2:37am
Hosedragger (www):

Unfortunately, the terroists act to protest the Bush and Clinton Administration's use of force and military installations in Iraq, Israel, Saudia Arabia and the rest of the Arab World.

Sadly, this does equate on many levels. McVeigh was no better and no worse.


Sorry spanky...you are wrong. While you have fallen for exactly the line they laid out, you are mistaken. Look up "Muslim Terrorist Attacks since 1927" on line. There you will see that it has absolutely nothing to do with the last two or three administrations. Facts speak for themselves. When you are done with that, you can look up the Al Qaeda training manual. In it, you will see that they learned from the Vietnam War and how lefties, like yourself, are this nations own worst enemy. They will cry about all sorts of injustices. Simple fact is, if you want to use their own words, they have stated that they want us all dead. Every man, woman and child because we are not Muslim. And not just any Muslim, but their brand of Muslim.

Don't take my word for it. Just look up the statements by Zarqoui, Al Zahiwri, and UBL himself.

So go ahead. Blame us...but these people have been pissed off for 1400 years. It ain't gonna stop no matter who is President. And how dare they say we need to leave their land, while they slowly take over the whole world. Look at England. They are bitching about Britain while taking their welfare checks and living in Britain.
8.6.2005 2:58am
Hosedragger (www):
Now, I also want to add that while a couple people put a spin on what I wrote, not one, NOT ONE of you answered the question I put forth. Again, McVeigh...you guys totally dismissed what I wrote about him and put a spin on it. You ignored the facts. Fact is, we are not at war against white male seditionists. We are not worried about them as they are not on al Jazeera shking their diseased fingers at us and hiding. After all, if they are willing to die for theor cause, quit hiding in the mountains or where-ever.

McVeigh represented himself, and he then died for his crimes. Like I said, you look at who is threatening us. You look at who we are at war against, and then you justify searching grandma so that Abdul doesn't get his feelings hurt.

Again, read the freaking 9-11 report. In it, it states that one of the key reasons they borded the planes was due to the anti-profiling rules. SOrry guys...but the facts are the facts. Stop trying to "feel" all the way through this and look at the facts.

How disadvantaged are those in Madrid? In London? In Manhattan?

I would rather someone feel picked on and discriminated against than me or mine killed because some little poo-butt didn't want to have his widdle feelings hurt.
8.6.2005 3:08am
Adam (mail) (www):
Actually, Hosedragger, if you click on the above link you'll see that a number of the hijackers *were* selected for additional security screening. (10 of 19 hijackers were screened, including 9/10 of the American Airlines hijackers, if you follow to the footnotes.) A lack of profiling was not the problem.

They just did a lousy job questioning them, and our policies regarding what to do with "suspicious" people were inadequate at the time.

Sorry, guys, but the (actual) facts are the facts. Stop trying to "feel" all the way through this and look at the facts.
8.6.2005 9:26am
Matthew Mason (mail):
Oh, please. What freedom is the ACLU trying to protect? The "freedom" of terrorists to kill us? The "freedom" of pedophiles who publish how-to guides on molesting a child and getting away with it? The "freedom" of allowing a single person to tell the population of an entire county how they are going to live their lives?

There is a reason why the ACLU was founded by communists. And it was not to promote "freedom".
8.6.2005 12:04pm
Christopher K. Leavitt (mail) (www):
It's well known that many frivolous grievances have been taken seriously, and even been victorious in the courts. This is why we need tort reform. The way many people see it, either lawyers that get people $5 mil for spilled coffee belong in jail, or the system needs reform. The same applies to over-zealous defenders of civil liberties. Some think there is something wrong in the minds of lawyers who attack what many agree are common-sense notions. This argument reasonably asserts that groups like the ACLU have already persuaded the courts to "change the constitutional rules," which is beyond their mandate or constitutional power.

The chosen way to fight this is with ideas, to change public perception of what some find a dangerous organization. They take their cue from the extreme left, who call the Bush administration "criminals," "murderers," and yes, even "terrorists." While the rhetoric may be extreme, the idas behind it are not. Outrageous liability lawsuits have hurt the community as a whole by driving up medical and legal costs. The potential cost for outrageous civil rights rulings will be counted in lives, not just dollars. When the U.S. is at war with, and under threat from a very real worldwide terrorist group, I doubt that earlier generations of Americans would have responded with the restraint shown by the current government.

STOP the ACLU is using their free speech to oppose injustices done by a group that is using the court system to enable acts that are criminal, even if they have good intentions. To codemn them for doing so puts you in the same position, second guessing someone else's motive and tactics. You have a perfect right to, but so do they. I support STOP the ACLU, though I sometimes agree with the ACLU. The two are not incompatible, if change is the goal. Change in the culture, the courts, and in the ACLU.
8.6.2005 1:33pm
Public_Defender:
Christopher K. Leavitt,

Which lawyer got "$5 mil for spilled coffee"? It looks like you're just making stuff up to attack a group you dislike.

Either you're careless with facts or you're "dishonest." I'll give you the benefit of the doubt and assume it was just carelessness.
8.6.2005 2:24pm
teh (mail):
Can ACLU opponents cite some specific evidence of a case where an unfounded lawsuit by the ACLU brought an outcome that makes them deserving of this ridicule? I think we may have gotten all the way through this with only vague charges of "helping terrorists" or "helping pedophiles." I'm still not sure anyone has shown any truly outragous outcome that was the result of a <i>baseless</i> claim by the ACLU.
8.6.2005 4:25pm
Darleen (mail) (www):
No I haven't read all the comments yet, so excuse me if I'm repeating what someone else has said.

Yes, describing the "A"CLU as "criminal" is intemperate, especially if looking that the adjective as a legal rather than rhetorical term.

However, corporations have a right to file any lawsuit they want to, also, but do we really find SLAPP tactics either eithical or moral??

No where is a better example that the "A"CLU engages in SLAPP-style intimidation than their suits or threats of suits across the country aimed at cities and counties that dare have even a hint of a Christian symbol on their city/county seal. See city of Redlands, CA or even Los Angeles County.

Just because something is LEGAL doesn't make it moral or ethical. Something that lawyers too often forget.

I no more am bothered by random bag searches if I choose to go on the public conveyance of a subway than I am by security at the airport or sobriety checkpoints or the metal detectors at my own courthouse. I don't labor under some delusion that the right of privacy that exists within my house is an all inclusive bubble when I walk down public streets. I find certain security measures reasonable in balancing individual rights with societal responsibility to protect individuals. People with a lower threshold than mine are free to move to some hinterland cabin and fend for themselves free from any "intrusive" interference from their societal peers.

No. I am not a lawyer, but I work with them (DA office) and have had the privilege to work with a lot of ethical dedicated people. But I've also witnessed the kind of hubris that evolves from some who believe their JD has confered a "higher" status to being one of the chosen whose legal interpretations and pronoucements are SO MUCH MORE legitimate than any opinion of the lesser beings.

I know it's pretty amazing, but us non-lawyer types can be trusted to use the silverware and not our hands at the dinner table, and successfully wipe our own noses.

And we can occassionally spot the bovine excrement, even when it comes beautifully wrapped in legalese, law-cites and all.

Look beyond the sometimes intemperate rhetoric and deal with the real issues raised.
8.6.2005 5:19pm
Darleen (mail) (www):
teh

IMO, the "A"CLU's threat to sue the county of Los Angeles over a tiny cross on their seal which stood for the historical fact that El Pueblo de Nuestra Senora la Reina de Los Angeles de Porciuncula was founded by deeply religious Spainards and Franciscans is more than worthy of ridicule. This nationwide attempt at Bowdlerize our history of all religious references and symbols is contemptous.
8.6.2005 5:31pm
teh (mail):
It seems unlikely to me that a colossal government agency like Los Angeles County had no resources to defend themselves agains the ACLU.
8.6.2005 6:48pm
Darleen (mail) (www):
teh

sure they did. but they didn't. they folded like a cheap tent.
8.6.2005 9:19pm
randal (mail):
I like the ACLU. I like it when they win, and I like it when they lose. A lot of the time (the NYC subway case is a perfect example) the point isn't to win. The point is to get some debate going on the constitutional rights at issue, in a court setting, so that the results will be taken seriously and be legally binding. I expect (and hope) they'll lose the case, but I'm glad they're bringing it. It reminds government not to overreach, and it results in a court decision that lets everyone know exactly why the searches are allowed and what the boundaries are. If this kind of case was never brought, the government could chip away at our rights. Each step wouldn't be far enough from the status quo for anyone to have a major objection, and then the status quo would change. For example: Once we get used to random searches on subways, why not random searches at checkpoints? Once people get used to voluntary searches, why not make them mandatory? After all, refusing one is suspicions, right? By the time things get so bad that even conservatives are worried, it's too late to go back and challenge the original policies that started it all.

So before going crazy about how the ACLU brings all these "dangerous" lawsuits, consider the value to society of requiring the government to argue exactly why a controversial policy is constitutional, in court. Hopefully this policy is constitutional, but at the same time I want to know the limits and why.

You could argue that bringing cases you expect to lose makes them frivolous. But, as many people have pointed out, they're only frivolous if you know (or should know) that you'll lose. The ACLU could win this case, and that possibility makes it not frivolous.

The ACLU provides the pressure to keep the government in line on civil rights issues, just like the NRA does for Second Amendment issues. You can count on the NRA to challenge every single gun control statue ever, via court cases that seem as ridiculous to gun-control advocates as some ACLU cases seem to pro-lifers. All these groups have the same fundamental goal: protecting America from the government. The system seems to work pretty well - just remember that when you attack the ACLU for things like frivolous lawsuits and accepting attorney's fees, your arguments apply just as easily to the people fighting for the rights you care about.

One last thing: the ACLU gets no taxpayer funding! They get attorney's fees when they win cases, sometimes, and they have to pay the other side's fees when the other side wins, sometimes, just like everybody else. They are completely funded by donations and are non-profit. Get that straight! It's on their website!
8.6.2005 9:27pm
Andy (mail) (www):
Darleen wrote (re: LA County's decision not to challenge the ACLU's litigation about the county seal):

"sure they did. but they didn't. they folded like a cheap tent."

I agree. I support the ACLU's right to argue in court their position, and was extremely dissappointed by the County's decision not to challenge them (especially since they could have waited to see where the wind is blowing among the big 9 in DC regarding their opinions about the 10 Commandments.)

What's even more galling is that given Breyer's ruling in Van Orden v. Perry, it appears that the LA County would have had good reason to believe that they would have won in court (on the basis of the long time that the Seal-with-the-Cross had existed in county buildings before anyone challenged the symbol.)

The ACLU did their job; shame on LA County for not doing theirs.
8.7.2005 1:24am
Milhouse (www):
Hosedragger: What on earth did the Clinton administration have to do with Ruby Ridge?

Rahul Sinha: When was a member of the Michigan Militia (let alone two of them) ever involved in terrorism?

Rahul again: What part, exactly, of the right to bear arms clause "implies and accepts regulation" of that right?

Both sides: get your facts straight.
8.7.2005 4:05am
randal (mail):
Milhouse wonders: What part, exactly, of the right to bear arms clause "implies and accepts regulation" of that right?

Are you serious? The part that says "well regulated".

It's not even an implication. It's explicit.

For all the people who advocate a "strict constructionist" attitude toward the Constitution, they get pretty comfortable reading new rights into the Second Amendment. And they have no problem extending those rights to state law via the Fourteenth.
8.7.2005 6:37am
Milhouse (www):
Oh, so it says that "the well regulated right of the people to keep and bear arms shall not be infringed"? Or that "the right of the people to keep and bear well regulated arms shall not be infringed"? Perhaps that "the right of the people to keep and bear arms in a well-regulated manner shall not be infringed"?

No, it doesn't say anything about the right being well regulated, or limited in any way. All it says is that the reason why the right shouldn't be infringed is that we need a well regulated militia, and infringing the right in any way would interfere with that. Which makes sense when you consider what "a well regulated militia" actually means - a population that is armed and trained, and able to defend itself against either foreign invaders or domestic tyrants.

8.7.2005 11:26pm
Milhouse (www):
Sorry, those italics should have closed after "reason why".
8.7.2005 11:34pm
Milhouse (www):
8.7.2005 11:35pm
Milhouse (www):
test. sorry about all that.
8.7.2005 11:39pm
Milhouse (www):
sorry again. maybe this will work.
8.7.2005 11:40pm
Chris N (mail):

I don't think Ogre was referring to the government the ACLU threatens, but the small schools and local communities that can not afford to defend theirselves against the taxpayer funded ACLU.


India Tracy

Who are the bullies?
8.8.2005 5:41am
Bikerdad (mail):
First, the argument that the ACLU declines 2nd Amendment cases because of their endorsement of the principle of "regulation" is spurious, because they also decline to take state level 2nd Amendment equivalent cases even when the state constitution is clear that the right to own weapons is predicated on self-defense, and no mention whatsoever is made within the state constitution about "regulation." They don't take gun right's cases because they are ideologically opposed to private ownership of weapons.

Second, the government's duty to to protect its citizens is found in the preamble.


We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.


Third, when somebody can make a convincing case that the ACLU's attempts to get more Abu Ghraib photos released somehow serves the interests of the American people, then I may be more willing to give them the benefit of the doubt.

Fourth, when the ACLU mounts the same sort of consistent and recurring attack on college speech codes as they do on Ten Commandment monuments, then I will be inclined to believe that they are interested in the rights of all of us. The only instance presented of their concern for the free speech rights of college students vis a vis speech codes is a single brief filed 15 years ago?

Fifth, when the ACLU turns its back on the explicitly discriminatory (and therefore unconstitutional, at least to anybody with sense enough to actually read the Constitution itself) practice of Affirmative Action by governmental entities, I can listen to arguments that they're concerned about the rights and liberties of all Americans without a snort of derision.

Sixth, since when does the effectiveness of any given governmental policy have anything to do with its constitutionality?

The question at hand isn't whether or not the ACLU has done, or even continues, to do any "good." Even Mussolini, Sidekick of the Icon of Evil, did a lot of good. Before he took Italy down the toilet.

From where I sit, that's where the ACLU is taking us, and all the good intentions in the world doesn't change that. Calling them to task for their extremism is overdue.
8.9.2005 7:22pm