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"Where's the ACLU?"

A commenter on the "Creat[ing] an Atmosphere Where Students Do Not Feel Represented" thread asks, "Where's the ACLU? Right, nowhere." He then goes on to say, "Where's the ACLU? Where are the liberals? They are the ones ATTACKING this man."

Well, let's keep this in perspective. First, the ACLU's litigation arm can't do anything about this — we're talking here about a proposal to enact a student government rule. Once it's enacted, it might be challengeable, though perhaps even then the challenge would have to wait until the rule is enforced. But when it's just being talked about, neither the ACLU nor anyone else can sue.

Second, recall that I only got wind of this controversy at Boise State because Clayton Cramer e-mailed me about it. It's at least within the realm of possibility, it seems to me, that Cramer didn't e-mail the ACLU, that the ACLU's staff doesn't read Cramer's blog, and that the ACLU hadn't heard of this through other sources. (My NEXIS search for (sawmiller or "feel represented") and (bsu or boise state) revealed no newspaper references.) Even if the ACLU had heard about this, it might have legitimately concluded that it has other more pressing matters on its plate — but for now, we don't even know that the ACLU people had even heard of this matter.

Third, there's certainly no evidence that the ACLU is one of the "ones attacking this man," which is what the comment seemed to me to imply (though I suppose it's possible that the "They" refers back only to "liberals" and not both to "liberals" and the "ACLU"). And to the extent that the assertion is just a loose way of saying that the ACLU supports campus speech code, that assertion is mistaken. As I noted before, the ACLU has generally opposed campus speech code. 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 case, 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).

I've criticized the ACLU in the past on various matters, and I'm sure I will again; I think they're mistaken on many matters. But unfounded criticism is both itself wrong, and undermines the well-founded kind.

UPDATE: (1) Just to make explicit what I thought was implicit in "Second," but on reflection might not be clear. The ACLU doesn't just litigate but also sometimes speaks out in other ways; "First" is intended to explain why it can't litigate here, and "Second" notes one reason why it might not have spoken up.

(2) Commenter Jonathan Sawmiller -- presumably the fellow involved in the original story -- reports that "the ASBSU Ways and Means Committee indefinitely tabled the proposed Senate Bill #10," so that the restriction being discussed here "shouldn't be appearing in ASBSU code anytime soon."

Steven Plunk (mail):
The ACLU can give it's unsolicited opinion on this matter like it does on others in order to avoid possible future litigation. Speaking out early in such a controversy could help the students decide how to vote.

I would expect the ACLU to have a member on campus who is aware of the situation.

The perception is that the ACLU is more likely to defend liberal causes. While that is not fact it would be prudent for the ACLU to move quickly in order to show it's unbiased nature and quiet the those who link it to only liberal agendas.

The commenter's questions are somewhat valid but rough.
12.1.2006 2:28pm
Eugene Volokh (www):
Sure, the ACLU could do that, if it knew about the incident (though I doubt the ACLU does or should speak up about all such incidents, whether coming from the left or from the right).

But the ACLU speaks through its leaders; even if there is an ACLU member on the BSU campus, and the member has followed the controversy, he can't speak for the ACLU. He has to have thought enough about the matter to report it back to the ACLU chapter, and then the chapter leadership has to have taken the time to consider it, perhaps investigate it further, and decide what to do. Does anyone have any evidence that any such report took place, and when it took place?

If anyone wants to report this to the ACLU of Idaho and ask them for commentary, by all means please do so and report back to us. But there's no call for asking "where's the ACLU?" when there's no reason to think that the ACLU even knows about this.
12.1.2006 2:39pm
Ex-Fed (mail):
I completely agree that many criticisms of the ACLU are false, misleading, or overwrought.

But it would be fascinating to know whether there has been tension within the ACLU -- or among its chapters -- over the approach to take to speech codes, and if so how the conflicts broke down.

Didn't the ACLU back the censorious side in the California discrimination case that banned certain words in the workplace?

And I'd like to know if the ACLU had any role in or position on that contemptible Ninth Circuit decision saying, in effect, that schools can ban T-shirt messages that offend minorities but not ones that offend majorities. (Not counting Ramona Ripson's marriage to the judge writing the opinion, that is....)
12.1.2006 2:44pm
Eugene Volokh (www):
Ex-Fed: I think my post answers part of your question. As to workplace harassment law, the ACLU is indeed in my view on the wrong side of that issue, though Nadine Strossen, the President of the ACLU, is on the right side. Finally, as to Harper v. Poway Unified School District, my quick glance suggests the ACLU was uninvolved; and my vague recollection -- please correct me if I'm wrong -- is that Ramona Ripston's marriage to the judge has generally led the judge to recuse himself from ACLU cases (or is it just ACLU of Southern California cases?).
12.1.2006 3:04pm
Hans Bader (mail):
The ACLU brought the first challenge to a college speech code (against the University of Michigan in 1989), but changed its approach to campus speech issues in 1993, when its national board switched course by endorsing the hostile-envirnment theory on which most campus speech codes are based (previously, the ACLU took the position that speech had to interfere with activities in a concrete way, not just produce a hostile work or educational environment, to be banned).

The ACLU did not, for example, get involved in the more recent challenges to campus speech codes that were invalidated by the federal courts.

Some ACLU locals dislike speech codes; other ACLU locals like them. Attitudes vary a lot from chapter to chapter.

The national ACLU doesn't really mind speech codes, and its head, Romero, likes the idea of curbing hate speech. (ACLU board member Mari Matsuda was perhaps the most vocal advocate of campus speech codes in the nation).
12.1.2006 3:04pm
als_24 (mail):
Why should the ACLU feel the need to prove it is unbiased?
Do the ACLJ or NRA need to show they are more liberal?

The ACLU can, and should, be criticized when it advocates a cause that restricts constitutionally protected individual liberties, but I don't see it as fair criticism to fault them for the existence of evils in the world that they have chosen not to try and fix.
12.1.2006 3:11pm
Hans Bader (mail):
The national ACLU's attitude towards speech codes is largely driven by labels.

If you call it a campus speech code, they oppose it.

But if you achieve the same thing by stealth, by banning "verbal conduct" that contributes to an environment "offensive or hostile" for minority students, and calling such speech "harassment," then they will either turn a blind eye to it, or endorse it.

Ex-Fed asks,

"Didn't the ACLU back the censorious side in the California discrimination case that banned certain words in the workplace?"

They did indeed do just that.

The ACLU got the California Supreme Court, in Aguilar v. Avis (1999), to rule 4-to-3 that John Lawrence, who was himself married to a Hispanic, could not ever use derogatory language about his Hispanic co-workers, even in situations where they could not possibly hear him.

The ACLU's amicus brief argued that the injunction that permanently banned such speech did not reach speech but rather "verbal acts" and "verbal conduct," and thus did not implicate the First Amendment.

There was no pressing need for the injunction, which accordingly was an unconstitutional prior restraint. The trial judge himself conceded that Lawrence was not alleged to have insulted or harassed his Hispanic co-workers in the two-year period preceding the trial.

The fact that he may have insulted his co-workers years before was no grounds for a permanent injunction restricting his speech, given that the injunction could be violated by a single instance of speech, and the fact that it is blackletter law that a single derogatory utterance, even a racial epithet, is insufficient to create (or revive) a hostile work environment. (See Harris v. Forklift Systems (1993) (Supreme Court observes that a single "utterance" of an "epithet" is not enough); Gipson v. KAS Snacktime (8th Cir. 1998) (isolated acts of harassment cannot revive a hostile work environment which used to exist a long time ago); Konstantopoulos v. Westvaco (3d Cir. 1995) (Alito, J.)(same).

Thus, the ACLU took aim not at conduct, or even speech amounting to employment discrimination, but rather protected speech, plain and simple. And it did so using the Orwellian argument that speech loses its protections under the First Amendment when it is labeled "verbal conduct."
12.1.2006 3:21pm
Arbusto Spectrum:
Well, it looks like the ACLU and those long-haired pot-smoking liberals may have other things on their mind:

Dec. 1 (Bloomberg) -- The U.S. Supreme Court, agreeing to assess free-speech rights in public schools, will consider the case of an Alaska high school student who was suspended for displaying a banner that read, `Bong Hits 4 Jesus.''
The justices today said they will review a federal appeals court ruling that said student Joseph Frederick was entitled to collect damages from the Juneau School Board and the school's principal for violating his First Amendment rights.

12.1.2006 3:25pm
frankcross (mail):
On a related topic, how about something from VC on the Newt Gingrich speech
12.1.2006 3:43pm
Realist Liberal:

Well, it looks like the ACLU and those long-haired pot-smoking liberals may have other things on their mind:


Dec. 1 (Bloomberg) -- The U.S. Supreme Court, agreeing to assess free-speech rights in public schools, will consider the case of an Alaska high school student who was suspended for displaying a banner that read, `Bong Hits 4 Jesus.''
The justices today said they will review a federal appeals court ruling that said student Joseph Frederick was entitled to collect damages from the Juneau School Board and the school's principal for violating his First Amendment rights.


Wow, this is the first time I've ever heard Kenneth Starr referred to as a "long-haired pot-smoking liberal[]." Or were you referring to Judge Kleinfeld (one of the consistantly conservative judges on the 9th) who wrote the 9th Circuit opinion?

Also, the ACLU doesn't have anything to do with this case.
12.1.2006 3:43pm
Johh Fee (mail):
I disagree with the ACLU on many things, but this type of criticism of the ACLU has often puzzled me, even if it is factually accurate. Where do some people get the idea that the ACLU has a social obligation to represent all sides of the political spectrum in equal proportion? It is not the government. Perhaps, if the ACLU disproportionaly represents clients with certain causes this shows the ACLU has other principles in addition to the freedom of speech that it wishes to advance (and where it can advance two principles simultaneously in one case, it is a wiser use of resources), but this is not a heavy criticism.

Even though the ACLU does advocate the idea of free speech for all people and viewpoints, has it ever promised to represent all potential clients who have legitimate free speech claims without regard for their viewpoints? (Maybe it has made this public promise and I am unaware of it.) As long as the ACLU does not oppose the legitimate free speech claims of those whose views it disagrees with, there is no hypocrisy in choosing its disputes selectively with regard to multiple policy objectives.
12.1.2006 4:09pm
Mr L:
Where do some people get the idea that the ACLU has a social obligation to represent all sides of the political spectrum in equal proportion?

Oh, I don't know, their mission statement? They are quire clear about (at least theoretically) supporting free speech regardless of content, circumstances, and source, and have been willing to take a lot of heat and sacrifice donation income to protect the rights of Klansmen and Neo-Nazis in the past.

In light of that, a refusal to protect the speech of an individual against a government entity seems very odd. Why do they defend far-right troglodytes but not mainstream right-wingers? It's like "I may not agree with what you say, but I'll defend to the death your right to say it...unless of course there's a chance that you might actually have an effect, in which case bring out the ball gag." Ugh.
12.1.2006 4:33pm
Johh Fee (mail):
Even Voltaire had limited resources. He could not defend every single free speech claimant to the death. I take his statement to mean that he would defend to the death the principle of having a legal system in which the government allows the freedom of speech for all people without regard to viewpoint. I think the ACLU has done something similar (putting aside the "death" part).

The whole point of having a government that regulates speech in a content-neutral manner is so that private individuals and organizations can advance their content-based and viewpoint-based positions freely. This is the ACLU's position as I understand it, and it is a tenet of classical liberalism. It is perfectly consistent for a private organization to argue strenuously that the government should regulate speech in a viewpoint-neutral manner, and yet act in a viewpoint-biased manner in its own decisions. I do not know whether the ACLU has sometimes chosen clients in a viewpoint-based way, but I still see nothing to the claim that to do so would be hypocritical.
12.1.2006 4:54pm
JosephSlater (mail):
FrankCross:

I tried raising the idea that Newt's statement was maybe more important to free speech debate in this country than rules proposed by students at schools that hadn't even been adopted yet (see the thread on the school in Canada), but no serious bites yet. It's just the left that threatens free speech, apparently.
12.1.2006 4:57pm
Hans Bader (mail):
The ACLU uses the First Amendment when it is convenient, and attacks it when it conflicts with left-wing goals.

A classic example is its inconsistent definitions of what is "speech" protected by the First Amendment.

In Massachusetts, it argued that speech should be interpreted so broadly as to include public sex acts (oral sex committed on stage between two men).

In California, in Aguilar v. Avis (1999), which I describe in more detail in a comment above, it argued that racist speech could be banned by court order in a private workplace, because such racist speech was just "verbal conduct" or a "verbal act."

In a fashion reminiscent of Alice in Wonderland, the ACLU believes that speech is whatever the ACLU claims it is, regardless of whether or not it consists of spoken words or non-verbal conduct.

The ACLU is also very inconsistent about how it "balances" what it perceives as competing "rights."

For example, it sued a private restaurant, the Alpine Village Inn in Torrance, California, for refusing to serve neo-Nazis because they insisted on wearing swastikas while dining, trampling on the restaurant owners' freedom of conscience and their private property rights. The ACLU believed that the Nazis had a right to be racist that trumped everything else.

But in another case, Aguilar v. Avis (1999), it filed an amicus brief supporting a state court's gag order banning an employee from uttering even a single racial slur, based on racial harassment that was found to have occurred years earlier, even if no other employee ever heard the slur. The ACLU argued that such slurs could be banned because they were just "verbal acts" of "discrimination" against Hispanics, rather than "pure speech." The state court accepted the "discrimination" rationale for restricting speech, even though federal courts have consistently held that a single slur does not constitute discriminatory harassment, either by itself or in conjunction with harassment that occurred long ago, and is irrelevant if other employees are not aware of it (and even though the employee accused of harassment was himself married to a Hispanic and the soccer coach of the very employees who accused him of harassment).

Apparently, in the ACLU's view, extreme radical, habitual racists like Nazis are entitled to free speech, even at the expense of the property rights of others, but ordinary people like employees are not entitled to engage in a single isolated instance of racist speech.

(A former ACLU leader in fact argued in the 1990s that "destabilizing speakers" -- like Nazis and communists -- are entitled to more free speech protection than "stabilizing speakers" who support the status quo -- like mainstream conservatives. This position might have brought a smile to the face of ACLU founder Roger Baldwin, who wrote in 1935 that "Communism is the goal").

"Balancing rights" enables the ACLU to skirt principle to reach whatever pre-ordained politically correct result it wants.
12.1.2006 5:27pm
Steve:
In a fashion reminiscent of Alice in Wonderland, the ACLU believes that speech is whatever the ACLU claims it is, regardless of whether or not it consists of spoken words or non-verbal conduct.

Oh, how terrible, to believe that your own understanding is the correct one. Surely none of us are guilty of that.

Unless you want to argue the hypertextual position that NO non-verbal conduct is protected by freedom of speech, I'd wager you believe some things are protected forms of expression, and other things are not. "In a fashion reminiscent of Alice in Wonderland," indeed.
12.1.2006 5:49pm
JosephSlater (mail):
Bonus points for the gratuitous and irrelevant talking point, "one of the ACLU's founders was once in the Communist Party, 70 years or so ago!"
12.1.2006 5:57pm
Hans Bader (mail):
I do believe that spoken words are more likely to fall within the ambit of the First Amendment than non-verbal conduct, and that the ACLU is wrong to define spoken words as non-speech for purposes of the First Amendment when such speech runs counter to the ACLU's values.

Thus, I disagree with the ACLU's position that spoken words such as racial slurs magically become "verbals acts" or "verbal conduct" rather than speech when they occur in the workplace (the position it pressed in Aguilar v. Avis (1999), which I discuss at length above).

I also disagree (as does the Supreme Court) with the idea that an apparently infinite range of non-verbal conduct is covered by the First Amendment just because the non-verbal conduct contains a tiny kernel of expression.

The ACLU seems to have difficulty with this concept: It argued in a Massachusetts case that public sex acts were protected by the First Amendment against a law of general applicability not aimed at speech (the public sex acts at issue, which involved oral sex between two men on a stage, were not merely incidental to a larger artistic production, like the nudity in a production of Cats, where artistic freedom might properly come into play).
12.1.2006 6:01pm
Steve:
I do believe that spoken words are more likely to fall within the ambit of the First Amendment than non-verbal conduct

Again, surely the ACLU believes this as well, as does virtually everyone.

You're trying to argue the ACLU's position is internally inconsistent, when all you're really saying is that you disagree with their position.
12.1.2006 6:05pm
Ex-Fed (mail):
Prof. Volokh:
I understand that the judge in question recuses himself -- or did -- from ACLU of Southern California cases.

About a decade ago, the grumbling from the halls of the feds -- which, obviously, should be taken with a pillar of salt -- was that the recusal could be and was fairly easily evaded, through (for instance) the use of companion cases.
12.1.2006 6:16pm
amnyc (mail) (www):

the nudity in a production of Cats, where artistic freedom might properly come into play


Wow, what production of Cats did you see that had nudity in it? Is Grisabella Fetish Porn common out there? (I'm not sure I really want to know...)
12.1.2006 10:17pm
Ex-Fed (mail):
"Genital cats come out tonight ....."
12.1.2006 10:47pm
plunge (mail):
"The ACLU got the California Supreme Court, in Aguilar v. Avis (1999)"

Amazing how courts never decide things anymore: it's always some dastardly culprit forcing them to rule one way or the other.

It's also fascinating how complicated legal decisions involving all sorts of other elements get boiled down into, like, maybe a word or two.
12.2.2006 4:21am
Public_Defender (mail):
The ACLU is not the civil liberties fire department. It has no duty to show up anytime someone calls (or, in this case, when Clayton Cramer thinks someone should have called).

They are an impact litigation law firm. That means they select their cases based on impact, not necessarily based on individual injustice.

They may decline to take a case for many of the same reasons a lawyer would decline to take a case:


1) the potential client may be a pain in the rear;
2) the case has a set of facts that won't put the underlying issue in the best light;
3) they are too busy with other cases;
4) the case won't help enough godless communist gay Muslim pedophiles molest white Protestant children from good Republican families and then post the pictures on the Internet while thinking lewd thoughts about John Ashcroft and plotting the downfall of American Civilization;
5) the local director is on vacation;
6) nobody asked for their help;
7) the parties don't want their help;
8) the local branch has other priorities at the moment;
9) private, retained counsel can handle the case just fine;
10) etc., etc., etc.


And yes, sometimes ACLU goals conflict (the right to speak vile words v. the right to have a workplace free from sexual harassment). There is nothing sinister about local ACLU branches picking sides in those disputes.
12.2.2006 3:17pm
John G (mail) (www):
List of ACLU Press Releases on Free Speech issues. If you are interested in the cases that the ACLU is actually officially interested in. I noticed fairly quickly a case a month or so ago where they backed a Christian ant-gay protester. Shocking!
12.2.2006 4:36pm
Bleepless (mail):
ACLU does not limit itself to already-enacted laws, regulations and so on. It testifies, lobbies, buys ads and otherwise complains about matters it dislikes. See, e.g., its activities while the PATRIOT Act was being written and considered. It also suggests changes to proposed legislation which would make it acceptable. It has done these sorts of things since it was founded. So do not claim that ACLU cannot get involved because it is naturally limiting itself to enacted matters. ACLU is anything but reticent.
12.2.2006 9:03pm
Public_Defender (mail):
If the ACLU responded every time someone in student government had a lame idea, the organization would do little else.
12.3.2006 1:05pm