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More Hostility to the ACLU Seemingly Blinding One to the Facts:

Clayton Cramer posts a long list of cases that lead him to condemn the ACLU as "evil and hypocritical." Let me point to the paragraph that I first focused on (it happened to come up in a search I did):

The ACLU believes in freedom of speech--unless you are a child who gives another child a pencil that says "Jesus loves little children." Here's the decision where a school district prohibited a child from handing out these pencils at a class party. And here's a case where the ACLU stepped in to protect a child from being disciplined for saying that he had two Mommies. Oh, and this kid wore a T-shirt to school calling Bush an international terrorist; the ACLU thinks that's protected free speech (which it is). Some forms of free speech are protected by the ACLU; others are not (and oddly enough, those are the Christians whose speech is not protected).

(See the original post for links.)

1. I followed the link given for the "Jesus loves little children" case, and found another of Mr. Cramer's posts, this one reading, in relevant part, "As an example, the ACLU did manage to score a victory against free speech in the classroom in this decision. Of course, the child was distributing pencils that siad 'Jesus loves little children' at a class party--clearly, a far more offensive form of speech than explaining to a classmate what 'gay' means. The ACLU should stop the pretense. They do not support freedom of speech as a general policy, or they would have taken the side of Daniel Walz, handing out those pencils. I used to hear conservatives grumble that the acronym 'ACLU' really stood for 'Anti-Christian Litigation Unit.' The ACLU's continuing cynical hypocrisy in supporting free speech in schools some of the time, but opposing it when it carries a Christian message, has persuaded me that the grumblers were right."

The trouble is that, as best I can tell, the ACLU wasn't involved in the cited case. It's not listed as a party or as a friend of the court; I searched online and found no ACLU references to the case. I have no reason to think that they "manage[d] to score a victory against free speech in the classroom," or "oppos[ed free speech]" in this case because "it carrie[d] a Christian message." That earlier Cramer post seems to be simply mistaken.

2. After looking into the pencil matter, I came across this UPDATE to Mr. Cramer's original post: "Just so that those with reading disabilities understand me: there are a number of cases above where the ACLU, if they were still in the civil liberties business, would have at least filed a brief--such as the pencil case. If you want to argue that they don't have the resources to be involved in every case, well, I can believe that. But they have the resources not just to file a brief in the Curley suit against NAMBLA--they are actively defending NAMBLA. The pencil case involved two different protections of the First Amendment: freedom of speech and freedom of religious exercise. The NAMBLA case involves what is, at best, an extreme edge of legal free speech--and yet ACLU finds the resources for this." Unless I'm mistaken, Mr. Cramer is acknowledging that the ACLU didn't "score a victory against free speech" or "oppos[e free speech]" in that case, even though his earlier post claimed the contrary.

But setting aside that failure to correct the earlier post, Mr. Cramer seems to be saying (though not clearly in the original text, only in the update) that the ACLU is to be faulted simply for not participating on the side of the speaker in the pencil case. This is a misguided argument against any public-interest law firm, especially one that operates in large part through local chapters.

First, there are many reasons the ACLU might not participate in a case. The decisionmakers at the local ACLU might not have heard about the case in time to file a brief. The group's lawyers might have been swamped at the time the case was being litigated. The group's decisionmakers might have read drafts or outlines of the plaintiff's brief (or the papers below) and thought the plaintiff was making all the key arguments. The group's decisionmakers might have concluded that, since the Becket Fund was filing a friend of the court brief in this case, it was likely to take care of the key arguments. (You're not supposed to file an amicus brief unless you think you can make arguments that aren't already being made.)

And second, most ACLU litigation decisions are made by each affiliate. The pencil case arose in New Jersey; the case Mr. Cramer points to as the comparison case, which involved a lawsuit against NAMBLA that was based on the group's allegedly crime-facilitating speech, arose in Massachusetts. I have no idea how well-staffed the local New Jersey chapter was at the time compared to the local Massachusetts chapter, or what the chapters' relative attitudes about the merits of friend-of-the-court briefs were (some lawyers think such briefs are often wastes of time), or even how focused on free speech each chapter was. What's more, I highly doubt that Mr. Cramer has any idea about this; he certainly didn't convey any information about this, and it's quite hard to figure this information out, especially when you're trying to figure out why a group decided what it did several ears ago. How then is it remotely fair to say "The ACLU believes in freedom of speech--unless you are a child who gives another child a pencil that says 'Jesus loves little children,'" simply because one ACLU chapter didn't file a friend of the court brief in one case, while other ACLU chapters participated in other cases?

3. Finally, what about the general claim that "Some forms of free speech are protected by the ACLU; others are not (and oddly enough, those are the Christians whose speech is not protected)"? Or the specific claim, in the earlier post to which Mr. Cramer's later post linked, about "The ACLU's continuing cynical hypocrisy in supporting free speech in schools some of the time, but opposing it when it carries a Christian message"?

Well, in an earlier comment thread on this blog, in which Mr. Cramer heavily participated, commenter Allen Asch posted a link to a page titled "The ACLU Fights for Christians." I went to that page, and followed the links, and sure enough they involve the ACLU fighting for the free speech and free exercise rights of Christian speakers (or, in a couple of the cases, of various speakers including quite a few Christian ones).

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Once again, it seems to me, we see evidence of how hostility to a group seems to blind one to the facts, and leads one to error. This naturally doesn't mean that one shouldn't criticize the ACLU; of course one should, in the many situations where it merits criticism. But thinking of one's legal and political adversaries not just as misguided but as "evil" tends to influence one's judgment, and not for the better.

As to some groups (say, Nazis, al-Qaeda, and the like), such an attitude is nonetheless proper; failing to see them as evil would itself be bad judgment. It just seems to me that the ACLU is pretty far from falling into that camp, and thinking of it that way predictably weakens one's critical faculties.

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