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.