Before Criticizing a Group, It Helps To Get One's Facts Straight:

One commenter on my earlier ACLU post writes:

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.

First, while I strongly disagree with the ACLU's position favoring race and sex preferences, I don't think this position is dishonest. There's a perfectly credible argument that discrimination against historically disfavored groups should be judged under a different constitutional rule than discrimination against historically favored groups. Again, I think this argument is mistaken, but reasonable minds can surely differ about this -- and one can certainly look out for the interests of Americans generally (for instance, as to the Fourth Amendment, Sixth Amendment, and the like) and yet take the view that discrimination against some groups is worse than discrimination against others. The ACLU is wrong here, but not dishonest.

Second, the ACLU most certainly did not stand silent as to campus speech codes. In Iota Xi v. GMU, the first federal court of appeals case striking down college speech codes (in 1993), the ACLU of Virginia filed an amicus brief in favor of the plaintiffs, who were punished for putting on a skit in blackface. According to a Nat Hentoff column -- and Hentoff has long been a vocal opponent of speech codes -- the two earlier district court cases that ultimately struck down campus speech codes, in Michigan and in Wisconsin, were filed by local ACLU affiliates.

In Newsom v. Albemarle County School Bd., a 2003 court of appeals, the ACLU backed a high school student's right to wear an NRA T-shirt (surely a "non-liberal voice[]"). For another recent example of an ACLU chapter's interceding on behalf of allegedly racially offensive speakers, see here. And the national ACLU's 1994 position statement on the subject condemns campus speech codes; I believe the national ACLU's anti-speech-code policy was adopted in 1991 (though there was a good deal of dissent within the ACLU about it, especially, I'm told, in the California chapters).

One can (and, in my view, often should) disagree with the ACLU's substantive positions. One can criticize them as dishonest, if one can really point to actual dishonesty, rather than just substantive disagreement. But if one is to criticize them, one should first make sure that one's own arguments are factually accurate.

PLM (mail):
I think Eugene is correct in his analysis, but there is one case where the ACLU (or at least the Oregon branch) joined in the legal battle to punish free speech, and that is the Planned Parenthood case where anti abortion activists were socked with a hundred million dollar punitive damage judgment. The ACLU did argue for a more limited basis for the judgment, but it supported the Planned Parenthood basic position. The 9th circuit affirmed in a 6-5 vote (290 F.3d. 1058 (9th Cir. en banc 2002).) The dissenters (who were vehement) included two of the most liberal judges of the circuit (Reinhardt and Berzon), two of the most conservative (O'Scannlain and Kleinfeld) and the circuit maverick, for whom Eugene clerked, Kozinski.
8.5.2005 3:46pm
mike maddox (mail):
I would be persuaded that the ACLU was standing against speech codes and verbal harassment regulations if the ACLU took a firm stance against them. A few policy papers without action and publicity are not persuasive, especially given the ACLU's aggressiveness towards any obvious violations against the First Amendment that silence liberal voices. And I applaud the few examples of local ACLU groups speaking out against and supporting legal efforts against speech codes. But those examples are way too few and far between considering the power of the ACLU and the hundreds of campuses that to this day still incorporate speech codes (or verbal harassment regulations, the approved substitute for the now un PC term 'speech code').
F.I.R.E is a great organization and they are doing a fine job publicizing this problem. They also go to lengths to congratulate the ACLU on the few occasions that they have persuaded them to join in the battle. (My observation only, I have nothing to do with F.I.R.E) But again, such examples are few and far between.
Considering the power of the ACLU to shine the brightest light possible on such obvious affronts to free speech and the paltry number of voices that are raised in support of that principle, I don't believe 'silence from the ACLU' is far off the mark, although it is technically true to say that the entire ACLU organization has not always remained silent. Frankly it is hard to believe that speech codes and verbal harassment regulations would still be so widespread if the ACLU took a serious position against them.
I appreciate your responding to my comment and your remarks on gender and race discrimination.
8.5.2005 4:26pm
Shavar Jeffries (mail):
I wonder what the basis is for your apparently formalistic view that discrimination in favor of "historically disfavored groups," to use your articulation, should be viewed, as a matter of law, as equivalent to discrimination in support of historically favored groups. To the extent your argument is premised on the Equal Protection Clause -- a provision explicitly designed to counteract the longstanding, government-endorsed racial subordination of Black people -- what principle of constitutional interpretation would suggest that the Clause itself prohibits corrective efforts to remedy the effects of historical disfavor? The same Congress that enacted the Fourteenth Amendment enacted Freedman Bureaus and other remedial efforts that were explicitly race-based and designed to remedy the direct effects of a race-based problem. A formalistic perspective suggesting the unconstitutionality of discrimination designed to remedy the continued effects of historic discrimination not only would reify extant (racially predicated) distributions of public goods, but also would be a perversion of the textualism that I though conservatives admired.
8.5.2005 4:49pm
Shavar Jeffries (mail):
Correction -- I meant to say the formalism suggested in your post would be a perversion of the originalism I though conservatives admired.
8.5.2005 4:51pm
Alaska Jack (mail):
I am loathe to argue with the good professor as a) I generally agree with him, and b) he is one of the country's foremost experts in free speech law, while I have no legal training whatsoever. I mean, really, what the hell do I know?

That said, I do wonder a little about this passage:

There's a perfectly credible argument that discrimination against historically disfavored groups should be judged under a different constitutional rule than discrimination against historically favored groups.

Well, yes, there certainly is a perfectly credible moral argument to that effect. But the ACLU doesn't just make a moral argument: i.e., trying to persuade enough Americans to come around to their point of view, so that those Americans amend the constitution to allow that sort of disparate treatment under law.

Instead, the ACLU makes a constitutional argument: i.e., that the constitution already allows unequal treatment under law. Given the plain language of the constitution, I do not find this a "credible" argument.

(To perhaps better illustrate my position, I have a similar opinion toward gun-control groups. I would have all the respect for them in the world if they simply tried to persuade Americans that the second amendment was an outdated idea and should be repealed. That is a much more credible argument, to my mind, than the idea that the amendment should be reinterpreted in a manner seemingly inconsistent with what the framers intended.)

- Alaska Jack
8.5.2005 4:52pm
What part of EQUAL don't you understand, Mr. Jeffries. Why is interpreting equal to mean equal a "perversion" of originalism?
8.5.2005 4:55pm
Shavar Jeffries (mail):
Alaska Jack, you've mis-articulated the relevant inquiry concerning whether discrimination in favor of historically disfavored groups is permissible under the EPC. The issue isn't whether the Constitution permits unequal treatment; the issue is whether remedies in favor of historically disfavored groups constitute unequal treatment to begin with. If only certain groups were subject to historical disfavor, logic informs that only those groups would require remediation of the effects of such historical disfavor. The Framers of the EPC drafted the Clause in a context of flagrant racial disparities in the allocation of public and private resources, and those same Framers proceeded to enact race-based remedies to a race-based problem. In historical perspective, this of course is unsurprising: one cannot begin to remedy the effects of race-based slavery in a colorblind manner. Slaves, for example, were prohibited from reading. Would you contend that a congressional, race-based program enacted in 1870 to provide remedial reading programs to the freedpeople would provide unequal treatment to Whites because the remedy was cast in racial terms? Are White people, never prohibited from reading, using this thought experiment, denied equal treatment because they don't have access to the remedial-reading program? The questions, as always with the constitutionality of race-conscious remedies, are much more complicated than my conservative friends wish to appreciate, but of course that's why I feel compelled to respond.
8.5.2005 5:01pm
Alaska Jack (mail):
Mr. Jefferies --

As I noted above, I have no legal training whatsoever, but two thoughts do occur to me upon reading your post.

1. If I were around in the period immediately following the Civil War, I would have no problem compensating slaves, and their children. As far as I can see, the principal of governmental compensation is well-established, and indeed mentioned in the Constitution. Coming back to the modern day, however, it is my experience that even strong proponents of affirmative action have a difficult time answering questions such as: "On what basis should the son of a wealthy black doctor receive preferential treatment from the government over the daughter of a poor appalachian coal miner, or the son of poor vietnamese immigrants, (etc.)."

2. I am not familiar enough with the actions of the post-civil war Congress to talk knowledgeably about them. However, it occurs to me that acts of previous Congresses, which might have been unconstitutional but were not declared so, should not necessarily form a binding precedent. Congresses and courts do make mistakes. I don't think this position, if I understand you correctly, really presents a significant challenge to the philosophy of originalism.

As I said, I am strictly a layperson when it comes to all this, so feel free to set me straight.

- Alaska Jack
8.5.2005 5:12pm
" The issue isn't whether the Constitution permits unequal treatment; the issue is whether remedies in favor of historically disfavored groups constitute unequal treatment to begin with."

Oh, so it depends on if they REALLY meant "equal." Apparently equal sometimes means unequal. Discrimination=equality. Elegant argument.
8.5.2005 5:15pm
Phil (mail):
Point 1: Prof. Jeffries is a genius.

Point 2: I also find it interesting how little many vociferous opponents of the ACLU know of its less-vilified work. For example, the ACLU has been a vigorous opponent of most campaign finance laws and worked with Kenneth Starr and leading conservatives to fight the recent McCain-Feingold litigation. (Some local ACLU chapters disagree with the national ACLU's position; but tha national group's position has been consistent and loud.) Also, the ACLU has often worked on behalf of marginal religious groups whose practices have been made more difficult by government action. Nonetheless, they are often slurred as "anti-religion" or something, when there is little basis for that charge.
8.5.2005 5:24pm
Justin (mail):
First of all, Mr. Jeffries, I saw you spoke a few years ago at Skadden Arps and hearing your arguments was a privilige.

Second of all, Challenge, as fun as it is to use cute, biting arguments, you did not once begin to address any of Mr. Jeffries' points. Specifically, the first question is whether, once the 14th amendment notices a violation of equal protection, does it afford a legitimite remedy at all? After all, if all it can do is say "stop doing that", then public goods have already been transferred (here, in quantities beyond belief) and your reading of the 14th amendment is at least as much "equal sometimes means unequal".

The second question, which Mr. Jeffries seems a little less interested in but Professor Volokh clearly understands, is whether political majorities get to hide beyond the 14th amendment because some part of the minority wants to protect their (already illgotten) public goods transfer. If the political minority can plead their position for a proper remedy to the political majority, how is it the conservative position, already suspect of an overpowering judiciary, to tell the political majority that they cannot make amends to the political minority because an amendment specifically designed to assist that political minority have political equality forbids it?
8.5.2005 5:26pm
Justin (mail):
Sorry Professor Jeffries, I had mistaken your proper title as I had thought you were legal counsel for the ACLU, having confused your title with someone else's. My apologies.
8.5.2005 5:28pm
Eh Nonymous (mail) (www):
Fun as it is to make fun of what the ACLU _actually_ does, viz., defend the rights enumerated in the First Amendment (to the extent that Americans United or the Religious Right aren't busily doing the same thing, to different ends), it's much more fun to make fun of what they don't do:

Case in point, the Onion article.
Onion: ACLU Defends Neo Nazis right to burn down ACLU
8.5.2005 6:12pm
Nester T:
How about this for dishonest:

From the ACLU Website:

"Our job is to conserve America's original civic values - the Constitution and the Bill of Rights."

"Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected." and "Since the Second Amendment. . . applies only to the right of the State to
maintain a militia and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right to possess a firearm."

Pick and choose, pick and choose. So much for that part of the Bill of Rights.
8.5.2005 6:36pm
Hans Bader (mail):
One must distinguish between the national ACLU, which dislikes free speech on campus, and local affiliates, which sometimes like it, and sometimes don't.

The local affiliates brought many of the earlier challenges to campus speech codes, like the University of Michigan "discriminatory harassment" policy invalidated in 1989.

But the national ACLU doesn't like protecting speech that offends minorities. In 1993, under pressure from left-wing members of its national board, who thought free speech on campus promoted racism and sexism, it rescinded its 1984 policy that speech had to do more than offend members of protected classes to be unprotected "harassment," and have definable consequences for their ability to work or get an education before it could be prohibited.

Since then, even many local chapters have been far less enthusiastic about free speech on campus, leaving the task of publicizing campus speech violations to the moderate Foundation for Individual Rights in Education and the task of litigating campus speech cases to the conservative/libertarian Center for Individual Rights and Individual Rights Foundation.

Incidentally, the Virginia ACLU didn't just file an amicus brief in the Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University campus speech case, as Eugene suggests. They were co-counsel for plaintiff, along with the Center for Individual Rights.
8.5.2005 6:43pm
Brett Bellmore (mail):
I have to say that Nester has indeed identified the ACLU's real hipocrisy, it's revisionist take on the 2nd amendment. Even when they initially took the position, they knew it was iffy; These days it's absolutely indefensible. Perhaps if they just admitted that they don't care to defend the entire Bill of Rights, they could stop lying about the parts they don't like.

I'll admit they really are quite good about defending the 1st, though. Perhaps they'd get more credit for being willing to defend free speech rights against all contenders, if they dropped the "No threat from the left" theme in their recruitment literature. You don't get a rep for being nonpartisan if you only brag about fighting conservatives.
8.5.2005 7:06pm
I think the point is that there are many well-funded gun rights groups out there defending Second Amendment prerogatives. It's a popular position. The ACLU properly devotes its resources to advocating the less popular positions that no one else will take up.
8.5.2005 7:44pm
Mary Katherine Day-Petrano (mail):
No, the ACLU's real hypocrisy was the position it took in the Schiavo case. The ACLU purports to fight for First Amendment protections and to end discrimination. Intellectually dishonest, the ACLU threw both away by twisting Schiavo as a 'right to die' case, when technological advances since Cruzan changed the ability of someone in that condition to communicate.

If anyone bothered to read the entire Schiavo State Court case file, the James D. Whittemore Federal case opinions, and the autopsy report first hand, the ACLU's hypocrisy would be readily apparent. State Judge Greer refused to follow Title II Americans With Disabilities Act procedural protections to hear, consider, and enter an order regarding whether any reasonable accommodations would have enable Terri to speak (First Amendment) her own wishes through advanced computer techology (reasonable accommodations to eliminate discrimination). Even if Judge Greer were to deny such a request, the order of denial would have been required to be in the State Court file. None exists.

Judge Whittemore led the obviously not-competent in the Americans With Disabilities Act lawyer for Schindlers (tried to challenge a Title II ADA State Court under Title III place of public accommodations, mixing up the Titles) down the primrose path to cover Judge Greer's blatant violation of Title II of the Americans With Disabilities Act's reasonable accommodations procedural requirements. In a footnote of one of Judge Whittemore's opinions, he slips it by the Shindler's lawyer to drop Judge Greer in his official capacity from application of Title II of the ADA to his State Court actions. Schindler's attorney gives up his most valuable argument.

The autopsy report, if one actually reads it instead of relying on news reports second-hand, states that it could not be determined at death whether Terri was in the minimally conscious state, rather than decades old definition PVS. A Florida DCF doctor found she was minimally conscious, and she required pain medications indicating consciouness to feel pain. The outdated PVS definition was drafted long before modern pattern recognition software was known to enable people like Terri to communicate by translating what little brain activity was there into text on a computer screen. In Easly by Easly, a federal court held the criteria used in State statutes is subject to challenge under Title II of the ADA. No one challenged the definition of PVS for years despite medical and technological advances.

The ACLU never addressed these issues, nor the fact the Florida Supreme Court's ADA conflict preemption case, Barry v. Burdines (1996) would have invalidated the State substitute proxy statute as superceded by the Americans With Disabilities Act reasonable accommodations mandate. In otherwords, Terri was denied Equal Protection as well as Due Process because Michael was allowed to speak for her and no reasonable accommodations order (either way) exists in the State Court file. The ultimate disability discrimination is when others are allowed to speak for disabled people who can speak for themselves "with or without reasonable accommodations." Take it from an autistic.

The ACLU -- hypocrisy at its best: Gutting the First Amendment and Perpetuating Discrimination and Euthanasia Against the Disabled.
8.5.2005 8:08pm
Andy (mail) (www):
Mary: "The outdated PVS definition was drafted long before modern pattern recognition software was known to enable people like Terri to communicate by translating what little brain activity was there into text on a computer screen."

I'm curious as to what software you're referring to which could accomplish this task. How exactly does it work?
8.5.2005 9:26pm
Brett Bellmore (mail):

I think the point is that there are many well-funded gun rights groups out there defending Second Amendment prerogatives. It's a popular position. The ACLU properly devotes its resources to advocating the less popular positions that no one else will take up.

That would indeed be a valid defense of the ACLU's 2nd amendment stance, if all they were doing was failing to defend the 2nd amendment against violations. The problem is that they want, at one and the same time, to claim that they defend the ENTIRE Bill of Rights, AND to not defend the 2nd amendment.

In order to square this circle, they've thrown the ACLU's reputation behind the discredited (Even Tribe abandoned it, once he'd finally deigned to look at the evidence.) "collective right" interpretation of the 2nd amendment. In this respect, they're not a neutral in the gun control fight. They're firmly, if somewhat passively, on the wrong side.
8.6.2005 12:15am
ElliotF (mail):
Professor - I am confused by this statement: "First, while I strongly disagree with the ACLU's position favoring race and sex preferences, I don't think this position is dishonest. There's a perfectly credible argument that discrimination against historically disfavored groups should be judged under a different constitutional rule than discrimination against historically favored groups"

Where would there not be a perfectly credible argument to favor speech regulations? Can't you always dream up a perfectly credible scenario where the interests of some group favors the speech regulation? Isn't what is important in weighing the honesty of a group not necessarily the positions it takes, but the consitancy of the positions a group takes with how it holds itself out to the public or allows the public to perceive it? From my limited experience (or my naiveity) I would say that the ACLU holds itself out, or at least knowingly allows itself to be perceived as, a group that will defend civil liberties no matter the cost, no matter the unpopularity, sheerly on principle. If this is correct and you assume that the ACLU has been derelict in defending speech rights, the commentor's position (that the ACLU is honest)set forth in your post seems perfectly reasonable to me.
8.6.2005 5:46am
The ACLU is not "dishonest" about the Second Amendment, it just takes a different position than the NRA. I'm sure there are blogs and law review articles filled with rational (and some irrational) arguments on both sides of this issue.

Too many people define "dishonest" as "an argument I disagree with."

As to the Schiavo case, the ACLU's position was mainstream. By contrast, Jeb Bush and his supporters pushed the limits of the law, engaged in arguably frivolous litigation, and pushed the local prosecutor to file frivolous criminal charges (to his credit, the local prosecutor did not cave into the pressure). The shoe was on the other foot in that case.
8.6.2005 8:01am
Brett Bellmore (mail):
Public Defender, based on a conversation with Ira Glasser, back in the 80's, I stand by "dishonest". They knew the stance was wrong when they adopted it, according to him, but faced financial ruin if they were honest about it, because so many of their backers were anti-gun. And I'm not the only one he said it too, he was quite frank about it at the time.

Remember, while it is possible to argue both sides of any question, some issues are so clear cut that only the truly ignorant can honestly argue one of the sides. We do not live in a post-modern universe where there is no truth.
8.6.2005 8:36am
centrist (mail) (www):
Remember, the ACLU defended the Nazi's right to march in the predominately Jewish town of Skokie, Illinois in 1978. That was one of their greatest defenses of a "non-liberal" viewpoint. Mind you, that's about as non-liberal as you can get.
8.6.2005 1:35pm
Anyone who says they "know" exactly what the Second Amendment means is either dishonest or they mistake their opinion for the truth. Also, it's not "dishonest" to adopt the view of an organization's membership.
8.6.2005 2:31pm
Larry (mail) (www):
Mary Katherine Day-Petrano, I am sorry that you were unable to win your legal battle, despite the chance to win in many times. This might have been due to the fact that your argument was without merit. Now you are looking for a scapegoat. Next time you might want to make a better argument. Even though the girl was already dead, perhaps you need to take some responsibility for killing her, and sotp blaming others for your complete failure to convince any court of what you consider to be a "clear" position.
8.6.2005 3:56pm
Brett Bellmore (mail):
Public, you don't have to know the precise dimensions of the right the 2nd amendment guarantees, to know that the "collective right" theory is well outside the bounds of reasonable interpretation. It's not like it's *subtly* wrong. It's more on a par with Holocaust denial for evasion of reality.
8.6.2005 7:19pm
Brett referenced the Nazis. Doesn't that mean he automatically loses the argument?
8.7.2005 7:41am
Brett Bellmore (mail):
Nah, I referenced Holocaust deniers. You mentioned Nazis... LOL
8.7.2005 9:11am
Yeah. Reading the 2nd Amendment narrowly is the equivilant of the anti-semitic neo-Nazi argument that the holocaust did not occur. Not only do you lose this argument, but you also lose the right to be taken seriously in other discussion.
8.7.2005 10:14am
Mary Katherine Day-Petrano (mail):
Andy, probably the best place to go to learn about these kinds of assistive technologies is the Center for Accessible Technology in Berkeley, Calif. The last doctor who examined Terri Schiavo for Florida DCF (who said she was minimally conscious) referred to the pattern recognition software in his report. A local attorney who was helping the Schindler attorneys asked me about my experience with the Center for Accessible Technology a few months before she died, so they may have contacted them and the pattern recognition software option may have been suggested there. Or perhaps they contacted a similar organization. Usually a rehabilitation technologist who is familiar with the medical condition will suggest appropriate technology. Then the options that would appear to work are tested out to see if the disabled person can actually use the software. Unfortunately, both Judge Greer (State Judge) and Judge Whittemore (Federal Judge) did not follow the strict reasonable accommodations procedural requirements under Title II of the Americans With Disabilities Act, so this step was cut short, as was her life. It is a common misconception that disabled people are too disabled to benefit from such technologies. A visit to a place like the Center for Accessible Technology is a real eye opener. Many quadraplegics can use blow straws, into which they blow morse code. Obviously this option would have required more cognitive ability than Terri Schiavo had, since the assistive software can add layers of complexity to already complex computer operation. In my case, blow straw was too slow to do legal work, so I was fitted with Dragon Dictate voice-recognition software: I speak into a microphone that translates my speech by converting it into text on a computer screen. Currently, I use L&H Voice Xpress, which is very similar to Dragon. As I understand the pattern recognition software (but I am no expert on it), sensors pick up brain waves which are then translated into text on a computer screen. Maybe Terri Schiavo would not have been able to articulate stories or complex conversations, but likely she could have told us herself if she wanted to live or die. To twist a reasonable accommodations discrimination case into a 'right to die' case goes against all the ACLU stands for. That's why I said the Schiavo case was the ACLU's most hypocritical. What amazes me is why would so many choose to deny her this fundamental right to express her own wishes if it were possible? Very often, the way non-disabled see things vs. the way disabled people see them are 40-50% points divergent. For a good study on the divergent perspectives between the two groups, see Mary Ann Jones, And Access for All (about the California Court system's implementation of Title II of the ADA), Univ. of san Francisco L. Rev., I believe year was 1997.
8.10.2005 2:45am