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The ACLU and Me:

Some bloggers seem to be publicly dropping their links to InstaPundit because of his having worked with the ACLU, and calling "demonizing the ACLU is a bit silly," and saying "I do feel that they've become overly partisan in recent years, but they still do good work". Given this, I think that people ought to know that (1) I am working with the ACLU now on a free speech case in Michigan, (2) I've worked with them on opposing the anti-flagburning amendment and the victims' rights amendment, (3) I have defended them from what struck me as unwarranted attacks here, here, and (4) I have praised their positions here, here, and, I'm sure, elsewhere as well.

I have also criticized the ACLU's positions on other matters in places too numerous to mention (do a search for ACLU on this site and you'll find quite a few), as have my cobloggers. I think demonizing the ACLU, like lots of other over-the-top rhetoric, is indeed a bit silly and counterproductive, and tends to lead the demonizer into factual and logical errors. If you think this puts me in league with the demons, why, you know what to do.

ZS (mail) (www):
Not a fan of the ACLU, but props on standing up for this. Litigation cam make strange bedfellows too.
9.1.2005 3:04am
Brian G (mail) (www):
As long as you don't defend NAMBLA and their ilk, I have no problem with you (or Professor Reynolds) working with the ACLU at all. I love the Constitution, and respect it immensely.

No matter they tell me at law school, I can't put my feelings aside in certain matters, nor do I ever want to. I think you lose a little bit of your soul when you look at NAMBLA and see "free speech rights" and "free association rights" and not the fact that they advocate pedophilia and trade ways to lure and molest children.

Oh, and why is it every professor in law school (and undergrad for me too) always makes a big deal about Hugo Black being a free speech absolutist? Of course he was, he was a KKK member. He knew the full value of the First Amendment.
9.1.2005 3:39am
Eugene Volokh (www):
I appreciate Brian G's words, and I have contempt for NAMBLA, as well as the KKK, the Communists, and the Nazis -- but you can look at these groups and think both that they are contemptible and have free speech rights and free association rights.

As to Hugo Black, he had been a KKK member, but at a time when the KKK didn't really need the First Amendment much -- he joined precisely because it was popular in Alabama. To my knowledge, by the time he became a prominent voice on First Amendment issues, he didn't have much affection for the group (if he ever really liked it in the first place).

We make a big deal about Hugo Black being a free speech "absolutist" (he called himself that, but he wasn't one, really; virtually no-one absolutely believes that all speech is categorically protected) because that was the legal theory of that particular Supreme Court Justice. And part of our job is studying the legal theories of Supreme Court Justices.
9.1.2005 3:58am
Nermous:
Bravo to Prof. Volokh for putting principle above mindless rhetoric and uncritical thought.
9.1.2005 4:33am
Brett Bellmore (mail):

Bravo to Prof. Volokh for putting principle above mindless rhetoric and uncritical thought.


Now if we could get the ACLU to join him, we'd really be making progress.

My objection to the ACLU can be summed up by a statement of Nadine Strossen's: "I don't want to dwell on constitutional analysis, because our view has never been that civil liberties are necessarily coextensive with constitutional rights. Conversely, I guess the fact that something is mentioned in the Constitution doesn't necessarily mean that it is a fundamental civil liberty."

The ACLU does good, important work. But they do it in pursuit of an agenda which only aligns with the Constitution, sometimes, by coincidence. I wish they'd be more honest about it, and stop hiding behind a Bill of Rights they treat like an ala carte menue.
9.1.2005 7:10am
Jay (mail) (www):
I know what to do? I don't even know if I have a link to you, I'll have to check, but if anything I might add a link to you Eugene. I don't mind disagreement, as long as its well thought out. What Mr. Reynold did was attack Alan Sear's new book implying it was biased, while saying he recieved it in the mail that same very day. Now, I don't know if you can speed read that fast, but I at least read something before lauching against it. Trace back the facts as best I can, follow the resources provided to make sure its all factually. At least to the best of my ability.

I didn't mean to make such a huge deal out of delinking his site. That among many other issues was the straw that broke the camel's back. I found myself in disagreement often, to what I didn't find convincing argument to change my mind on. I know the old guard sticks up for one another, and the lawyers too, but it isn't fair to "demonize" Stop the ACLU too. There are plenty of things full of reliable information on my site, factual information, that shows how the ACLU is a screwed up organization worthy of reform, and most in the mainstream will agree on that much...they need moral reform, just as your readers above have noted. But you, so far, have only decided to share negative publicity towards my site. Well, controversial material, I appreciate the traffic anyway.
9.1.2005 8:22am
William Spieler (mail) (www):
Removing someone from their blogroll for a single issue stance seems pretty childish to me.
9.1.2005 9:06am
Jay777 (mail) (www):
I found myself in disagreement often, to what I didn't find convincing argument to change my mind on. More than one issue.
9.1.2005 9:36am
AppSocRes (mail):
The ACLU often pisses me off. But the only way our society and polity can function without generating into factionalism and demagogy is if we recognize that we share common interests even with those we most oppose. Some of my best friends are liberals. We disagree on almost everything political and cultural, but agree on a few important things. Furthermore, it's worth remembering that the ACLU is very far from being an organizational monolith. Local ACLU chapters each determine their own policies. These chapters can sometimes be "highjacked" into litigation for or against issues that the vast majority of members might regard as wrong or ill-advised.
9.1.2005 9:40am
Jay777 (mail) (www):
So while you are working with the ACLU, see if you can get them to change their Policy to legalize Child Porn Distribution
9.1.2005 10:05am
Brett Bellmore (mail):
I actually have no problem with the ACLU being selective in their defense of our liberties. Or anyway, would have no problem with it, if they were more up front about it, instead of wrapping themselves in a Bill of Rights they've taken a razor blade to.

The worst part of it, of course, is when they try to square the circle by denying the very existance of rights they don't want to defend, such as the right to keep and bear arms.
9.1.2005 10:08am
Bruce Hayden (mail) (www):
Co-conspirator Bernstein in his book "You Can't Say That!" I think really explained why the ACLU often appears scitzoid. It is apparently comprised of a large number of fairly autonomous chapters, and many of the chapters take positions that sometimes put other values above Free Speech. But that is supposed to have been their primary focus, and if they stayed there, they would still probably be getting money from me.

I would suggest, as I think David did, that they have squandered a lot of their moral legitimacy (esp. on the right) by backing a lot of non-Free Speech liberal causes, and, indeed, arguably even attacking the 1st Amdt. in favor of these causes. But they still remain one of the primary voices for Free Speech - usually.

So, I applaud Eugene in helping them on this issue, while knowing that he is willing to oppose them on others, esp. when they, in essence, attack the 1st Amdt.
9.1.2005 10:12am
NaG (mail):
The ACLU basically defends what civil rights the Left finds fashionable. And even within that sphere they tend to take cases more likely to attract national attention, and hence controversial, because (1) they have limited resources, and (2) national attention is a good way to get more people to donate to you. They have defended the speech rights of the KKK while at the same time pushing the church-state separation to its fullest.

Even though I'm not a leftist, I fail to see how having a group out there arguing for their view of First Amendment rights is a bad thing. That they hold a legal position and argue it doesn't mean that they win, it means that they will at least offer a challenge to policies they believe hinder speech. Perhaps the PATRIOT Act is good policy, but at least the ACLU will vet it through the courts. Isn't that a good thing? Isn't it better to have groups out there willing to challenge things than for every government edict to be met with a shrug?

I suppose one could also argue that it's a pain in the butt that criminals should have access to counsel because that makes it harder to convict them. But we've recognized that a healthy challenge in the courts is a better sentinel for rights than mute acceptance. Agree or disagree with the ACLU, but it's clear that the challenge they offer helps keep things honest.

I used to give them money, but no longer. Their privacy policy over their donor lists was rather bad, and I wound up getting mail from every lefty advocacy group out there. No thanks.
9.1.2005 10:26am
WB:
Publicly announcing changes to your blogroll, for whatever reason, strikes me as childish, sort of like the 5-year-old who demotes his second-best friend to fifth-best friend after the latter does something to annoy him.
9.1.2005 10:38am
JoeSlater (mail):
WB makes exactly the right point here, I think.
9.1.2005 10:42am
Tom952 (mail):
The ACLU is frequently reported advocating rights of small groups of people engaged in undesirable or antisocial activity (NAMBLA, child porn). This supports the perception that the ACLU is wasting resources pursuing fringe agendas. Among the public school systems and the prisons alone there are thousands of cases involving flagrant civil rights abuses available for the ACLU to pursue.

How does the ACLU determine where to spend their resources?
9.1.2005 10:48am
leeotis (mail):
Over the top rhetoric, such as the rhetoric used by some to demonize the ACLU, is never a good thing. It tends to polarize the public and stand in the way of the legitimate free exchange of ideas.

The problem that I have with the ACLU at this point, however, is that they themselves engage in over the top rhetoric which, itself, polarizes the public and stands in the way of the legitimate free exchange of ideas. And if you don't agree with them, they'll sue you and accuse you of all kinds of horrible things in their lawsuits.

There is no question that the ACLU does some good things on behalf of individual rights. I have become convinced, however, that the individual good that they do is far outweighed by the systemic harm that they are doing with their overall approach to public issues and their public posturing. I am not going to "demonize" anyone for disagreeing with me on this point, but I would suggest that those who are cooperating with the ACLU are, at this point, part of the problem far more than they are part of the solution.
9.1.2005 10:52am
A. Nonymous (mail):
I absolutely would not drop you from my blog roll or delink you for working with the ACLU.

However, the puzzle with the people lined up with the hats and the colors and everyone getting shot if they said anything, yeah that I will delink because it made my head hurt too much. The people. The hats. The people with the colored hats.

Seriously, keep up the good blogging, and I'll be reading &linking.
9.1.2005 11:01am
Per Son:
What I found to be awesome, was the recent Supreme Court case concerning religious rights of prisoners. You had groups like the Beckett Religious Fund supporting the petitioners, who were represented by lifelong ACLU guy Prof. David Goldberger. Some issues bring different groups together in ways that most do not think of.
9.1.2005 11:33am
Caveat:
People should distinguish the ACLU's national organization, which is rather doctrinaire, from its local chapters, which often have considerable automony from it.

The national ACLU is quite willing to sacrifice civil liberties, such as free speech, equal protection, and freedom of religion, when it conflicts with left-wing politics and passing ideological fads.

Some of the local ACLU chapters, by contrast, are much more principled and do valuable work restraining government abuses of power. It was they who brought some of the early challenges to the campus speech and harassment codes that federal judges struck down on First Amendment grounds (ironically, some of these codes actually regulated speech less than definitions of discriminatory harassment endorsed by the board of the national ACLU).

The national ACLU, by contrast, likes speech codes (as long as they are cosmetically renamed "harassment" codes governing "verbal" conduct, i.e., speech), likes racial quotas (witness their recent criticism of John Roberts for being willing to provide legal representation in a challenge to federal contract set-aside laws -- apparently only criminals have a right to counsel, not businessmen), and dislikes property rights (they've actually filed briefs with the Supreme Court asking it to cut back on Takings Clause protection) and the right to bear arms (the ACLU's web site has argued that the Second Amendment guarantees no individual rights at all).
9.1.2005 11:35am
Mr. X (www):
Well, as one who keeps my ACLU card right next to my NRA card, I'm not about to delink anyone for supporting the ACLU. Some of the pro-war posts that Eugene has been putting up lately are pretty bad, but nobody's perfect.

Yours truly,
Mr. X

...take the long view...
9.1.2005 11:36am
pmanners (mail):
I believe that one problem with the ACLU is that, as Dennis Prager points out, activists with very strong and often radical agendas have become predominant in many of our venerable civic and professional organizations today. People who have more balanced interests in their lives are not as highly motivated to seek leadership positions in these organizations. They have other things to live for.

Just one example would be the Humane Society. Its original mission has been changed in many instances due to the takeover of leadership positions by PETA and even more radical animal rights groups.

You may be able to think of other organizations where the leadership seems more radical than the membership, be they church members, nurses, librarians, teachers, attorneys, etc., etc., etc.
9.1.2005 11:37am
Jim Rhoads (mail):
Great comments on this post. It should be read by all who villify organizations whose work has had great social utility if not always on the "right" side.

NaG comes closest to my thoughts on the subject.

Our legal system is adversarial. Justice is usually best done in it when both sides have able and committed counsel.

For example the death penalty (which I support in limited cases) seems to me morally indefensible without thorougly able counsel for the defendant who is subject to it. In the UCMJ, for example, capital cases have special rules protecting the defendant even more. This is as it should be in all jurisdictions.
Jim Rhoads (vnjagvet)
9.1.2005 12:01pm
Sydney Carton:
It is a self-delusion to believe that working with the ACLU on certain matters, while not supporting them in others, somehow means you're not tainted by them or that you can successfully distance yourselves from their radical agenda. It's no different than saying that the political wing of Hamas is worth working with, while the military wing of Hamas isn't. The two sides of the organization are one and the same. Also, just because they may defend positions that are correct does not mean that one should jointly work with them. Aside from the obvious opportunity resources that you contribue to them, allowing them to direct resources to a more radical agenda, it also legitimizes their other extremist positions in the eyes of the public.

I also find it hard to believe that there isn't a similar-minded organization that is not hell-bent on destroying American values. Anyone care to make a laundry list of the positions they've taken? It would be embarassing.

Finally, about "demonizing." What the heck else are you to do with an organization that supports child pr0n, NAMBLA, and other such organizations? If it's a sin to demonize them, then count me in. They can go to hell for all I care.
9.1.2005 12:03pm
Timothy (mail) (www):
If you think this puts me in league with the demons, why, you know what to do.

Exorcism?
9.1.2005 12:04pm
DNL (mail):
I once had a conversation with a national board member of the ACLU. Part one of the conversation was in 1998. Part two was four years later.

Part one was the speech from the temple mount. It was the story of the radical, ideological, and brazen ACLU. We'll protect the right of Klansmen to march down the streets of a very Jewish Skokie, Illinois. We're there when a drugged out war protestor sets ablaze an American flag -- on Memorial Day at a veteran's ceremony. We make sure that pedophiles can extoll the virtues of their disease. We protect civil libertiers for all people, all of the time.

He sheepishly deflected questions about gun rights, saying that the national board was split, and, as was mostly true at the time, the Union had not taken a public position on the 2nd Amendment.

I joined on the spot.

Four years later, I was no longer a member (for other reasons, mostly the junk mail), the conversation continued. Boy Scouts v. Dale had come and gone, with the ACLU on the side of Dale. The ACLU had finally adopted a "collective rights" view of the 2nd Amendment. I'm sure I could add to the list.

I asked the board member in question about these, and to his credit, he did not attempt to rationalize the decisions. They were made because those with the power to make the decisions felt, personally, that these were the right ways to go -- anti-discrimination planks trump freedom of association (sometimes), guns are bad, etc.

This lead to a lot of frustration from other civil libertarians (even ACLUers). No longer had the ACLU taken a blanket view to civil liberties; indeed, if Fred Phelps wanted to march through Provincetown, it is truly questionable if the ACLU would support such a measure. (It probably is not all that questionable, but the point holds.) And certainly, the ACLU would OBJECT if Phelps denied a gay man the right to march with them.

The problem with the ACLU, therefore, is not that it no longer does good. In does a lot of good. The problem is that it is no longer a mere question of "What does the Bill of Rights protect?" Rather, they ask "What do we want to protect?"

The danger is not one of irrelevance. The ACLU is firmly entrenched in American politicana, and even if it continues on its path of cherry-picking exceptions to liberty's rule. The danger is that they will be successful in this endeavor.
9.1.2005 12:17pm
George Burdell (mail):
Jay said "I found myself in disagreement often, to what I didn't find convincing argument to change my mind on."

How do you critical analyze what you are reading? How do you avoid the inbreeding of ideas to such a degree that makes creationism intelligent design seem like science?

I believe that the constitution was to protect the rights of minority from the will of the majority. As for dealing with the seedier side of human nature, Gloria Steinem summed it up for me in a comment about Larry Flint. She said he would be a hero to anyone who supports the first amendment if he wasn't a complete waste of a human being.
9.1.2005 12:25pm
Public_Defender:
Many of the criticisms of the ACLU in this thread are fair arguments. But saying that an organization is wrong doesn't mean that it's evil. That's making the same mistake many liberals make about the Federalist Society. (Yes, there are other differences between the ACLU and the FS, but those are beside the point.)

Most of the allegations about "hypocrisy" come from the clash of two rights the ACLU traditionally supports. For example, abortions protesters who impede access to the right to abortion. Or when one person's speech has the effect of discrimination based on race. The ACLU and its local chapters have to pick sides. One of the rights the organization supports will be diminished to protect another.

You should disagree with NAMBLA, but arguing to change the law is pure political speech. What other laws would you say that we can't argue to change?

That said, NAMBLA and its members should be mercilessly prosecuted if they act on their beliefs.
9.1.2005 12:35pm
Brian G (mail) (www):
Professor Volokh,

Thanks for your response.

But I wish someone would answer this: Where was the ACLU on the Kelo case? I thought the ACLU was supposed to be the biggest skeptic when it comes to governmental abuse of power? Look at the groups that came together to support the homeowners. How often do you see a coalition like that?

What bothers me about the ACLU is their Communist/Socialist roots. Look at their positions on private property and religion. Sure looks a lot like the Communist party platform.

Oh, and before anyone responds to me telling me I am an uneducated fool, go read Roger Baldwin's (the founder of the ACLU) writings, and read the book A History of the ACLU by Samuel Walker.

I agree with the ACLU on much of their 4th, 5th (of, course, except for the takings part) and 6th Amendment stances. And, I agree with most of their free speech and association stances. I think they are dead wrong on the Religion Clauses, and their failure to support the 2nd Amendment (they take a neutral view) is unbecoming of a civil rights organization.
9.1.2005 12:52pm
Sydney Carton:
Public Defender: "But saying that an organization is wrong doesn't mean that it's evil."

Would you trust the ACLU to look after YOUR children? I rest my case.
9.1.2005 12:58pm
The Liberal Avenger (mail) (www):
Right on, Volokh!
9.1.2005 1:24pm
Goober (mail):
Like many of the posters on this thread, I wholly admire the ACLUs stated aim of litigating in defense of our constitutional rights, I just wish it weren't those rights.
9.1.2005 1:24pm
Clark (www):
ACLU's biggest problem is its self-serving relationship with corrupt politicians and sitting judges. For example, Ramona Ripston's husband imposed policies on the LAPD designed to strengthen political and judicial power at public expense -- policies that demanded excessive force and degraded hiring, which led directly to the LA riots and Rampart (OFFICIAL NEGLIGENCE, Cannon 1997). The LAPD's pummeled reputation enhances the ACLU's standing, as well as Mister Ripston's (Stephen Reinhardt), who remains on the 9th Circus.

The ACLU's policies appear not to have departed far from their socialist (e.g., anti-democratic) roots. Like a broken clock, their periodic merit doesn't justify its existence -- nor does the acquiescence of antisocial conduct by other chapters make it deserved.

While disappointing, the continued legal and judicial support they enjoy isn't surprising.
9.1.2005 1:40pm
Wince and Nod (mail) (www):
If the ACLU supports the idea that child pornography is protected under the Constitution they are a purely evil organization along the same lines as NAMBLA and the KKK. Thus, it is wrong to be a member of the ACLU or give them support. It isn't wrong to be an ally in a particular case, just like it isn't wrong to be allied with Stalin to fight Hitler.

There can be no justification for the idea that child pornography is a protected right. I would like some strong sourcing to prove that the ACLU has taken that stance. If they have I wish they would reverse it. I don't like being tempted to physical violence.

Yours,
Wince
9.1.2005 1:46pm
Bob D Cousy (mail) (www):
My sister works for the ACLU. Should I disown her??
9.1.2005 1:52pm
cfw (mail):
Kudos generally, but why throw Communists in with Nazis? Seems a bit close-minded. Communists have at times been a positive force - e.g., fighting Japanese in China in WWII, fighting Germans in Russia in WWII.

My concern about the ACLU and all advocacy groups of that sort has to do with standing and champerty (financing of lawsuits). The ACLU and similar groups routinely have no standing as entities in the lasuits they support.

Champerty - ACLU and others providing resources for lawsuits where the entity has no standing - seems more common (and more commonly ignored) than it should be.

At the least, it seems to me all the advocacy groups should have a duty to disclose the funding for each and every lawsuit they file, and how any settlement funds or fruits of litgation are divided.

That said, I consider the US blessed to have a court system that can help protect civil liberties (including supposed rights to bear arms outside the militia, etc.) through advocacy groups like the ACLU.
9.1.2005 1:56pm
davecolo (mail):
volokh,
have you noticed the loss of hits from the same 15 people that de-linked glenn reynolds? you had better watch out. you might lose 30 by the end of the day.

intelligent de-linking, i think they should call it because it's made up of the same whacked rationale from these very same people.
9.1.2005 1:59pm
Glenn:
"Guilt by association" is what we are really talking about, which is purely the result of a falacy masquerading as rational thought. I have found that "guilt by association" is typically the result of people buying into emotial hyperbole rather than examining facts and reaching reasonable conclusions.

There's an old Navy saying (well, at least that is where I heard it first): It takes 10 "'atta boys" to make up for one "ah, sh*t". I find this a real good analogy for how many people (including, apparently, the notorious de-linkers) balance the equities.

When the bad always outweighs the good, it's no wonder some political opponents wind up being seen by each other as "the enemy" rather than simply other Americans with different points of view. It is easy to understand why a person would not make common cause with associates of the former. It makes a lot less sense in the case of the latter.
9.1.2005 2:13pm
Public_Defender:
Public Defender: "But saying that an organization is wrong doesn't mean that it's evil."

Would you trust the ACLU to look after YOUR children? I rest my case.
Yes, I would trust the ACLU attorneys I know with my children.

As to the Second Amendment, don't expect every group to take up every cause. Should the ACLJ and the Institute for Justice have to fight for the right to have an abortion? If you want to fight for an expansive interpretation of the Second Amendment, join the NRA.
9.1.2005 2:20pm
Memory:
The ACLU's support for civil liberties has always been purely tactical, supporting civil liberties only when it could establish precents that help left-wing groups win in the long term.

As the ACLU's founder, Roger Baldwin, stated crudely in 1935, "Communism is the goal," and civil liberties serve no purpose once this goal has been achieved.

Subsequent ACLU leaders have been more subtle, but they have preserved the ideological double-standard.

Burt Neuborne, long time legal director of the ACLU, argued that free speech should be given more protection when it is by a "destabilizing" speaker than by a "stabilizing" speaker, since the former serve to promote social change, but the latter do not.

Thus, a businessman (a stabilizing speaker) is not entitled to much First Amendment protection, because he supports much of the status quo.

But a liberal who advocates flaky "social change," or a radical like a Communist, Klansman, or Nazi, IS entitled to strong free speech protection, because these constituencies seek to destabilize the status quo.

This ACLU double-standard is truly perverse. It means that happy, well-adjusted, economically-productive people can be silenced, while hateful, mean-spirited people remain free to speak.

In the ACLU's eyes, an employee who says something politically incorrect about gender differences or affirmative action is an unprotected racial or sexual harasser who seeks to preserve the status quo. (See the ACLU's briefs in Harris v. Forklift Systems (free speech not defense to "harassment" charges for racist or sexist speech) and Gratz v. Bollinger (vitriolic brief labeling questioning affirmative action plan, which Supreme Court invalidated, as racist)).

But a Nazi or Klansman who taunts Holocaust survivors is a protected challenger of the status quo who deserves free speech as an absolute.

That ACLU outlook is utterly perverse.
9.1.2005 2:20pm
Clay Hellman (mail):
Some people need to learn the meaning of these words:

ad hoc

adv.
For the specific purpose, case, or situation at hand and for no other:

adj.
1. Formed for or concerned with one specific purpose: an ad hoc compensation committee.
2. Improvised and often impromptu:
9.1.2005 2:24pm
Mona (mail):
Public Defender writes: You should disagree with NAMBLA, but arguing to change the law is pure political speech. What other laws would you say that we can't argue to change?

Amen. Something like ten years ago when Clinton was in the White House, his "drug czar," Gen. Barry McCaffrey, got together with some Congresspeople to discuss drug policy, and the "problem" of those calling for legalization. Gerald Solomon (R-NY) angrily demanded to know why it is that these "legalizers" were being allowed to advocate as they do, cuz, yanno, drugs are illegal. McCaffrey had the good sense to remind the Congressman of that little Free Speech thingie in the First Amendment.

Even NAMBLA members have the right to advocate changes in the law. If that is where the right of political advocacy is being challenged, then that is where its inviolability must be defended. For my own safety's sake I believe that (as an ardent opponent of drug prohibition).
9.1.2005 2:26pm
Wince and Nod (mail) (www):
Bob D Cousy,

If the ACLU supported the idea that child pornography is protected under the Constitution and my sister worked for the ACLU, I would get really mad, then have a talk with my sister where I tried hard to be rational, calm and kind. I would probably fail at least once, then force myself. I would request she quit. There would probably be bad feelings, which I would try my best to overcome. If she wouldn't quit I would neither disown her nor delink her blog. But the issue would fester and pollute our relationship until she did.

Toxic issues like child pornography are like that.

If the ACLU does not support the idea that child pornography is protected under the Constitution I'd have a much easier time agreeing to disagree.

Yours,
Wince
9.1.2005 2:26pm
TakeFive (mail):
Didn't the ACLU come to Rush Limbaugh's defence when he was trying to keep his medical records private?
9.1.2005 2:49pm
David Berke:
Would someone like to meaningfully substantiate the position that the ACLU believes that Child Porn is protected under the Constitution?

The one citation previously provided has two flaws: (1) The site is ranting and raving, overgeneralizing, and obviously extremely partisan. (2) My best reading of the website is that the ACLU indicated that it was not appropriate to jail the owner of some video store who unknowingly sold a video with a 17 year old who lied to get into the movie.

Although such is wrong, it does not seem to be child porn in the sense that most people would understand it.
9.1.2005 2:56pm
Mike Maddox (mail):
The ACLU has issued a position paper that states it supports everyone's and all civil liberties. Therefore any criticism to the contrary is dishonest. (And yes, silly and demonizing.)
Thank you for trusting your law professors to set you straight.
9.1.2005 2:58pm
H.B.:
The ACLU's policy papers state that child pornography is protected, regardless of the child's age. (The courts have uniformly disagreed with that position).

By contrast, the ACLU doesn't believe that a swimsuit calendar displayed in a workplace is protected -- to the ACLU, that's unprotected "harassment," since it is supposedly the building-block of a hostile work environment for women.

So the ACLU thinks that it's OK to adorn your workplace with graphic child porn, but not harmless swimsuit calendars.
9.1.2005 3:16pm
Wince and Nod (mail) (www):
H.B.,

Gotta link?

My general position is that I don't trust the ACLU to either demonstrate good judgment, or to possess an argument which does not mislead. But it is a far cry from not trusting the ALCU to being willing to label them as evil, and the information I have so far does not meet my personal standards.

Jay, if you have web sites which the most liberal ACLU defender should trust, now is the time to trot them out.

Yours,
Wince
9.1.2005 3:35pm
Public_Defender:
The ACLU's policy papers state that child pornography is protected, regardless of the child's age. (The courts have uniformly disagreed with that position).
Actually, the ACLU convinced the Supreme Court that some material that Congress defined as child porn is protected. Pictures of adult actors who engage in sex acts pretending to be children are protected, as are images not involving real children.

You are right as to the issue of pornography involving actual children. The ACLU has lost the argument. It's dead. How is the ACLU's position a threat?
So the ACLU thinks that it's OK to adorn your workplace with graphic child porn, but not harmless swimsuit calendars.
I know that was a joke, but my guess is that most ACLU affiliates would say that posting porn (child or adult) in the work place would cause a hostile work envirnment.
9.1.2005 3:44pm
Brian G (mail) (www):
TakeFive,

Of course they tried to come to Rush Limbaugh's defense. It's called a "PR move."
9.1.2005 3:52pm
Inspector Callahan (mail):
If you want to fight for an expansive interpretation of the Second Amendment, join the NRA.

If the ACLU were truly a "civil rights" organization, as they claim and advertise, then they should defend ALL civil rights, and not just the ones the board members deem more important. Since they don't, they leave themselves open to charges of hypocrisy, and rightly so.

They defend most first amendment claims, and ignore second amendment claims. Some first amendment claims get special treatment (NAMBLA, etc.), and others they seem to be on the opposite side of the constitution (freedom of association, ie the Boy Scouts).

The above anti-ACLU comments still stand.

TV (Harry)
9.1.2005 3:54pm
David Berke:
Again,

Would someone like to provide a citation demonstrating the position that ACLU took on Child Porn?
9.1.2005 3:54pm
Wince and Nod (mail) (www):
the ACLU states:
The ACLU opposes child pornography that uses real children in its depictions. Material, however, which is produced without using real children, and is not otherwise obscene, is protected under the First Amendment.
Myself, I think that allowing an exemption for virtual children is at least problematic, almost certainly foolish, and probably evil. I am certain that it will be used for evil purposes. I seriously doubt more evil would be done by making it illegal than would be by keeping the exemption.

Yours,
Wince
9.1.2005 4:05pm
Public_Defender:
If the ACLU were truly a "civil rights" organization, as they claim and advertise
And if the ACLJ and Institute for Justice realy cared about "justice," (which is in their name) they'd support a woman's right to chose to have an abortion. But they have a different interpretation of what the Fifth and Fourteenth Amendments mean by "liberty." That's not hypocrisy, it's just a different constitutional view.
9.1.2005 4:06pm
Wince and Nod (mail) (www):
Bother! Here is a link.

Yours,
Wince
9.1.2005 4:06pm
Wince and Nod (mail) (www):
Since the ACLU supports a collective right to bear arms, Wyoming should pass a law saying that it's citizens can possess sawed-off shotguns, invalidating the 1934 Act in that state, and the ACLU should rise to Wyoming's defense.

Heh. Shamelessly stolen from the man famous for the previous sentence.

Yours,
Wince
9.1.2005 4:10pm
Better Red than Read? (mail):
Say, Gene, who was it behind the foundation of the ACLU, again?
9.1.2005 4:20pm
Edward A. Hoffman (mail):
Clark wrote:

ACLU's biggest problem is its self-serving relationship with corrupt politicians and sitting judges. For example, Ramona Ripston's husband imposed policies on the LAPD designed to strengthen political and judicial power at public expense -- policies that demanded excessive force and degraded hiring, which led directly to the LA riots and Rampart (OFFICIAL NEGLIGENCE, Cannon 1997). The LAPD's pummeled reputation enhances the ACLU's standing, as well as Mister Ripston's (Stephen Reinhardt), who remains on the 9th Circus.

Ramona Ripston and Stephen Reinhardt were both very liberal long before they even met, let alone married. You should not be surprised when two liberals see a particular issue the same way; that they are husband and wife is beside the point. That they have similar views does not mean Ms. Ripston influences Judge Reinhardt's decisions. And he's been around long enough that his reputation does not rest on any one opinion.

Do you mean to suggest that either Reinhardt or Ripston should resign? Why? Does marrying someone with a similar worldview create a conflict of interests?

Anyone who knows Judge Reinhardt knows that he speaks his own mind and not his wife's. And anyone who knows Ms. Ripston knows that she speaks her own mind and not her husband's. Judge Reinhardt is much too independent-minded to let anyone -- including his wife -- influence how he does his job.

The idea that the LAPD's various problems are the fault of Judge Reinhardt instead of -- dare I suggest it -- the LAPD is absurd, as is the idea that he gained prestige by virtue of writing a decision in a case dealing with the department. Given that the case was in the Ninth Circuit, one of that court's judges had to write the decision. If writing the decision enhanced the prestige of the author then the same would have been true no matter which judge wrote it. Unless you think Reinhardt should be governed by a different set of rules than are his colleagues, your position makes no sense.
9.1.2005 4:22pm
Public_Defender:
the ACLU states:
The ACLU opposes child pornography that uses real children in its depictions. Material, however, which is produced without using real children, and is not otherwise obscene, is protected under the First Amendment.

Obviously, I need to take back my comment that the ACLU lost the argument that porn made with actual children is protected. Their real position appears to be nearly identical to the position of the U.S. Supreme Court. Ashcroft v. The Free Speech Coalition, 535 U.S. 234 (2002).
9.1.2005 4:33pm
David Berke:
I find it very odd that the statement:

"The ACLU opposes child pornography that uses real children in its depictions. Material, however, which is produced without using real children, and is not otherwise obscene, is protected under the First Amendment."

is being used to support the proposition that ACLU supports child porn. (If true, the Supreme Court supports Child Porn too, see Ashcroft v. The Free Speech Coalition, cited above, which was cited in the opinion letter referenced.)

Any honest discussion of the subject would indicate the true scope of the ACLU's position, admit it was upheld by the Supreme Court, and attack it as evil regardless. I think there is a perfectly reasonable argument that such "Virtual" child porn is perfectly despicable and should perhaps be subject to an exception from First Amendment protection.
9.1.2005 5:36pm
Hans:
No, you don't need to take back your comment that the ACLU lost their argument that porn made with actual children is protected.

That's the argument they made, and lost, in cases such as Ferber that established that child pornography was unprotected. (Namely, that child pornography was protected regardless of whether or not it was made with actual children).

The fact that they may later have sought to limit the reach of what constitutes unprotected child pornography by advocating an actual child porn vs. virtual child porn distinction (one that actually worked in Ashcroft v. ACLU) doesn't change their actual litigating position, which has been to defend child porn at every step.

They only adopted this distinction between virtual and actual child porn after their more controversial position defending the protected status of all child pornography was rejected.
9.1.2005 5:39pm
DanB:
Myself, I think that allowing an exemption for virtual children is at least problematic, almost certainly foolish, and probably evil. I am certain that it will be used for evil purposes.

It seems like a good bright-line test, that child pornography must actually involve children.

I'm not sure what evil purposes you could use fake porn for, though. Unless masturbation is evil.
9.1.2005 5:39pm
Hans:
Under its Ashcroft v. Reno decision (2002), the Supreme Court distinguishes between child porn made with actual children (not protected) and simulated child porn (sometimes protected, if not obscene).

Historically, the ACLU opposed that distinction and defended all child pornography as protected speech.

In the child porn cases decided by the Supreme Court in past decades, which established that child porn is generally unprotected, the ACLU argued that child porn was protected, even though those cases involved child porn produced using actual children. It lost its central argument.

So while it sounds like the ACLU recently changed its mind about whether child porn produced using actual children is protected (judging from the above posts), historically it argued that even child porn produced using actual children was protected.
9.1.2005 5:47pm
Hans:
Oops! In the preceding post, I meant "Ashcroft v. ACLU (2002)," not "Ashcroft v. Reno."
9.1.2005 5:50pm
Hans:
Double-Oops! Actually, I meant "Ashcroft v. Free Speech Coalition."
9.1.2005 6:18pm
David Berke:
"I'm not sure what evil purposes you could use fake porn for, though. Unless masturbation is evil."

I would suggest that Justice Thomas may have had a point here (something anyone who knows me would be shocked by) when he hinted that it could be problematic because it could be used as a defense for real child porn with no clear way of distinguishing between the two. If not now, then perhaps at some point in the future. Although I am loathe to suggest that certain speech should not be protected because it is likely result in illegal behavior, that is an issue here as well.
9.1.2005 6:32pm
Wince and Nod (mail) (www):
Hans,

Links, please!

David Berke,

Given that fantasizing about sex (even with virtual women) often leads to sex, eventually (it eventually did in my case), might not fantasizing about sex with a child (even with a virtual child) eventually lead to sex with a real child?

Habituation works. There is a reason the Bible warns against lust in the heart. That reason is called Wisdom. It was either given from God or accumulated over the ages. Either way, it should not be dismissed lightly.

I am not contending this is an inevitable, inexorable and direct causal link. It's a factor. And, I'm willing to call it evil.

Yours,
Wince
9.1.2005 7:17pm
Public_Defender:
They only adopted this distinction between virtual and actual child porn after their more controversial position defending the protected status of all child pornography was rejected.
Another way of putting this is that they learn from experience and are willing to move on.
9.1.2005 7:37pm
DanB:
might not fantasizing about sex with a child (even with a virtual child) eventually lead to sex with a real child?

Pedophiles already fantisize about children. The question is whether pornography causes an increase in non-masturbatory sexual activity. My (ahem) personal experience is that normal adult pornography does not. Quite the opposite, in fact; there is a good reason why the popular cliche exists that the people who buy the most pornography are the ones having the least actual sex.

It could be that child pornography is different, but my expectation would be that pedophiles with ready access to a steady supply of new and different photorealistic fake kiddie porn would be a lot *less* likely to actually have sex with real children, because they'd have a ready-made source of sexual relief available that, while not as "good" as the real thing, is entirely legal.
9.1.2005 8:17pm
Jay (mail) (www):
Mere possession should not be a crime," said John Roberts, executive director of the Boston branch of the American Civil Liberties Union."


Boston Herald
9.1.2005 8:33pm
David Berke:
Wince,

Merely for the record, I do not know. I was not proposing that fantasizing about children does not lead to child molestation. I was instead stating that it in fact may do so. I also recognize DanB's point, which is why I have not developed a solid opinion in either direction.

For anyone else; I'd like a link to the Amicus brief in Ferber by ACLU in which they alleged that Child Porn should be protected by the First Amendment. I haven't found it.
9.1.2005 8:35pm
David Berke:
Jay,

You have to register to read the whole article. It is also a quote which is taken out of context, nor does it include the relevant statute. Do you have anything else?
9.1.2005 8:41pm
Jay (mail) (www):
MONTPELIER, Vt. — The Vermont branch of the American Civil Liberties Union is suing the state of Vermont over a law passed last year that, among others things, criminalizes the possession of child pornography obtained over the Internet.

The ACLU joined with the American Booksellers Association and others in filing the suit in U.S. District Court on Feb. 7.

The groups contend that the bill, signed into law by Gov. Howard Dean last May, is effectively "a broad censorship law that imposes severe content-based restrictions on the availability, display and dissemination of constitutionally-protected speech."

Benson Scotch, executive director of the ACLU of Vermont, said the law as it was written was simply too unwieldy and unmanageable.

Originally sourced from AP
9.1.2005 9:02pm
DanB:
Jay, the linked article gives no indication that the ACLU had a problem with the child-pornography portions of the bill. Governments have a habit of passing bills that read like "the police shall have the power to do whatever they darn well please in the pursuit of child pornographers". Objections to such laws need not be based in a support of child pornography itself.

David, in response to your earlier concern -- I don't think that the ability to create fake pictures automatically generates reasonable doubt about whether any given picture is real, since creating undetectable photorealistic fakes requires a lot of effort and skill. Eventually it will be easy and require no skill, but by that time I'd expect market forces to eliminate "real" kiddie porn -- after all, why risk jail time with the real stuff when your end users can't tell fake from real anyway.
9.1.2005 10:40pm
Wince and Nod (mail) (www):
Jay,

Thanks for the link. That is an excellent choice of source which a liberal would not reject out of hand.

To give a hypothetical broad brush example: A broadly written law which intended to make child pornography illegal but in addition made George Carlin's ten words routine illegal would be unconstitutional. I agree with that. Arguing that a particular law is too broad does not mean one favors child pornography. We would have to examine the arguments the ACLU made to see how broadly or narrowly they drew their lines.

To give a real broad brush example: There was a notable case where a mother was prosecuted for child pornography for taking pictures of her daughter taking a bath. Very few of us would criminalize such behavoir, yet an unconstitutionaly broad law did just that.

As often as I disagree with both the Supremme Court and the ACLU, I cannot claim that these decisions are simple.

This is why the various lawyers on the thread keep asking for links to briefs. Those are hard for non-lawyers like me to obtain without an expensive Lexis-Nexis account.

Yours,
Wince
9.1.2005 10:46pm
Mona (mail):
Look, I simply do not believe that the ACLU defends the pictorial display of real children in sexual positions for pedophile consumption. And I hate the ACLU on a number of issues. Any links to prove my belief is wrong?
9.1.2005 11:03pm
SeanD (mail):
Don't worry, Volokh, most Americans (hell, human beings, I imagine) have long since stopped holding lawyers as any beacon of principles (hell, of humanity even).

"If it's billable, that's good enought for a lawyer".
9.1.2005 11:03pm
David Berke:
DanB,

I can only speculate here, but one would imagine that a pedophile would rather have pictures/video/etc of the real thing than a fake. True, the "average pedophile" would probably rather avoid all that risk. Accordingly, the demand for the real thing would probably decrease, perhaps considerably.
On the flip side, as you've said, the ability to easily create indistinguishable porn would eventually occur. This would make an excellent defense. Everyone would claim it. The authorities would not even know whether it was virtual or real, and there could be a real problem with determining the "proper" people to arrest, nevermind with subsequent defenses.

Conceivably, there might be less child porn, but more people could get away with it for that very reason.

I'm not saying its necessarily true. I am instead stating that this is why I have difficulty coming to a firm conclusion.
9.2.2005 12:23am
DanB:
I can only speculate here, but one would imagine that a pedophile would rather have pictures/video/etc of the real thing than a fake

Sure. But let's say that pedophiles prefer Real to Fake. Producers prefer Fake to Real, because they don't go to jail for Fake stuff. Right now, telling Fake from Real is easy for both law enforcement and for consumers. As the difference between the two becomes harder and harder to detect, law enforcement's job gets harder. However, the consumer *also* has a progressively harder time telling the two apart, and I suspect they won't be as good at it as law enforcement is (since they won't have analysis tools and will want to believe the pictures are real anyway). So producers will make more and more Fake stuff and less and less Real stuff. Once we reach the point where the two are indistinguishable, there will no longer be any incentive for producers to produce Real stuff, because they can produce Fake stuff more safely and market it, undetectably, as Real.

In any case, even if we decided to play it safe and treat "photorealistic fake" as "real", I still don't see any justification for treating stuff that is clearly fake -- cartoons, obvious computer graphics, documented 18-year-old-models dressed up to look 14, etc -- like it was real.
9.2.2005 3:07am
Meredith (mail):
Well, obviously the ACLU ain't perfect, cause nothing is. Obviously they have done things right too. If you can't see beyond their fallibility, well, I hate to see what few organizations you can deal with.

But if you disagree with it, would that justify a delinking of some of the most important news sources in the world? Glenn Reynolds nad Eugene Volokh don't advocate child porn, so why act like they do because they happened to agree with something else with the ACLU? The real issue is not how awful the ACLU is.

If you found it useful enough to link, why delink it just because you took a different opinion? It's not like he's harping on the ACLU. Grow a backbone. (of course, this is a publicity stunt).

Makes the 'silly' argument very strong.
9.2.2005 6:41am
Public_Defender:
Mere possession should not be a crime," said John Roberts, executive director of the Boston branch of the American Civil Liberties Union."

This is an eight-year-old quote from a local chapter official. As others have pointed out, the national organization appears to have changed its position from making possession legal to limiting the definition of child porn to pictures of real kids.

I think there is a perfectly reasonable argument that such "Virtual" child porn is perfectly despicable and should perhaps be subject to an exception from First Amendment protection.

Your argument is "reasonable," but so is the ACLU's. That's what makes the discussion interesting.
9.2.2005 7:22am
Guest99:
The problem is not that the ACLU is too protective of free speech, it's that it's inconsistent, sometimes taking an extreme pro-speech position, and sometimes taking an extreme anti-free-speech position.

The ACLU argues that even the most narrowly-crafted obscenity laws (and in the past, the most narrowly-crafted child pornography laws) are unconstitutional, and its leaders proudly trumpet themselves as being First Amendment absolutists.

But when a Pittsburgh school teacher wanted to criticize a race-based "desegregation" order, the ACLU opposed his right to speak. His speech was too politically incorrect.

And in Aguilar v. Avis Rent-A-Car System, Inc., 87 Cal.Rptr.2d 132 (Cal. 1999), the ACLU successfully urged the California Supreme Court to uphold a hate-speech gag in the workplace under the risible claim that it involved not speech but "verbal conduct." (That's a verbatim quote from the brief submitted by the Northern California ACLU, whose position was supported by National ACLU, in correspondence with former Massachusetts ACLU leader Harvey Silverglate, who objected to the gag). The Court split 4-to-3 in favor of the gag (ironically, the court's minority women justices dissented).

The ACLU's — and the California Supreme Court's — very weak justification for the gag was that the employee subject to the gag (John Lawrence, an Avis employee) had engaged in racial slurs five years earlier.

But the hate-speech gag prohibited even a single racist utterance. It is black-letter law that a single racist utterance cannot create a hostile work environment, as the National Writers Union pointed out in opposing the gag. So this justification was bogus.

The hate-speech gag also banned speech outside the hearing or knowledge of the complainants who sought the gag, although such speech has only the remotest chance of making any contribution to a hostile environment.

And the hostile-work-environment justification was baseless for an additional reason, as the Boston Coalition for Free Expression and Center for Individual Rights pointed out as amici in urging the U.S. Supreme Court to review the case (Justice Thomas wrote an opinion dissenting from denial of certiorari, noting that the injunction obviously violated the First Amendment).

As the amici noted, federal circuit precedent consistently holds that a hostile environment dissipates with time, and that therefore, a single racist utterance cannot bring a hostile environment back into being when the racist utterances occurred a year in the past. See Konstantinopoulos v. Westvaco (3d Cir. 1997) (seven-month gap between sexist incidents allowed hostile environment to dissipate); Gipson v. KAS Snacktime (8th Cir. 1998) (similar).

Yet the ACLU — and the court — sought to ban even a single racist utterance, based on racial slurs that the trial judge who issued the gag admitted (based on the concession of the complainants who sought the gag) that any racist behavior had stopped in 1994 at the latest.

So there was no statutory basis for the hate-speech gag at all, just the court's (and the ACLU's) distaste for racist speech.

Yet Ira Glasser of the ACLU defended this obvious speech restriction even while simultaneously declaring himself a "First Amendment absolutist."

That seems rather hypocritical. If ACLU leaders believe free speech ought to be limited, they should say so, not pretend to be First Amendment absolutists when they are not.
9.2.2005 11:35am
Allen Asch (mail):
I agree with about 95% of what the ACLU does, having been a member for decades as well as a donor and cooperating attorney. Having once helped moderate the ACLU message boards, I've also seen a lot of these baseless attacks on the ACLU over the years. With the ACLU taking so many controversial positions, I've never understood why opponents of the ACLU need to rely on so much false or incomplete information to find areas of disagreement.

For example, I've seen the false attack that the "ACLU supports child porn" many times over several years. For one of my many responses to this misinformation, see my July 20, 2004 post in the ACLU message board thread at this link: First Amendment thread page.

Or, to correct misinformation regarding the ACLU's involvement in the NAMBLA case, see my May 5, 2004 post in the ACLU message board thread at this link: First Amendment thread page.

The ACLU is a great organization that is protecting freedom for all of us.

Allen Asch
9.2.2005 3:46pm
Heh. (mail):
You're right. The ACLU doesn't really support child porn. But, surprisingly, ACLU attorneys always seem to be the ones representing Al Qaeda. I can tell you that THIS lawyer was turned off for life after seeing ACLU jackpots arguing for the release of Al Qaeda terrorists committed to murdering Americans.

The ACLU is the enemy's outside counsel.
9.5.2005 1:22pm