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Nebraska ACLU Moves To File Amicus Brief on Our Side in My State v. Drahota Free Speech Case:

When I blogged about the case, several commenters asked whether the ACLU would get involved. I'm pleased to say that the ACLU just filed a motion to file an amicus brief on our side:

ACLU seeks to participate in this case to urge this Court to reverse the lower court's decision that Appellant's conduct was criminal rather than protected expression under the First Amendment.... As described more fully in the Statement of Interest that will be submitted in the briefing should this motion be granted, the lower court's decision in this action violates the constitutional guarantee of free speech and creates a new, unconstitutional standard to judge such cases.

Now we'll just have to see what the Nebraska Supreme Court does. (Recall that at this point the decision before the court is only about whether to agree to further review the Nebraska Court of Appeals' opinion, not about whether to reverse that opinion on the merits.)

Related Posts (on one page):

  1. Nebraska ACLU Moves To File Amicus Brief on Our Side in My State v. Drahota Free Speech Case:
  2. Pro Bono Free Speech Case:
matthewccr:
I'm glad the ACLU is standing up for the defendant, but it sure seems like the ACLU revels in these 'strange-bedfellows' type of cases. And I wonder how the defendants in cases like these feel about ACLU's involvement. The defendant doesn't seem to have been a big fan of the ACLU at the time of the alleged emails: "Does that make you sad that the al-queda leader in Iraq will not be around to behead people and undermine our efforts in Iraq? . . . You . . . and the ACLU should have a token funeral to say goodbye to a dear friend of your anti-american sentiments."
8.7.2009 7:18pm
Kara:
Yes. I was wondering too, if the defendant objected to the ACLU's involvement.
8.7.2009 7:36pm
Anon21:
I don't really think the ACLU "revels" in taking on cases with litigants who have expressed unsavory or anti-liberal views; I think they take them on as a matter of course, just like many other speech-related cases, but people tend to take more notice of the "odd couple" cases. I wouldn't be surprised if the defendant did object, given how petulant and immature his comments at issue reveal him to be. However, that is of no relevance to the ACLU; any particular litigant's attitude toward the ACLU's involvement is of very limited relevance to the organization's interest in preserving the free speech rights of all, one case at a time.
8.7.2009 8:18pm
EH (mail):
Fortunately for all of us the ACLU is not so small-minded and partisan as their erstwhile critics.
8.7.2009 11:59pm
martinned (mail) (www):
OMG! Maybe the ACLU aren't really spawn from Satan!
8.8.2009 7:59am
Per Son:
The defendant might hate the ACLU, but amici sign on because of a greater principle than the defendant.

There are many great first amendment litigators, for instance, who often have rabid racist clients. Those litigators often cannot stand their client, but they love the first ammendment.
8.8.2009 10:07am
Ken Arromdee:
It doesn't follow that just because the ACLU takes on clients who are right-wing extremists and hate the ACLU, it's not left-wing. Not enough people take extremists seriously for helping them to really hurt any left-wing causes. It's safe to help Nazis; despite all the Bush=Hitler signs, we both know the Nazis aren't going to accomplish anything.

The real test is how often the ACLU helps mainstream right-wingers, not extremists. (And before anyone says that the mainstream doesn't need help, it's possible to be mainstream enough to be part of normal political discourse, while not actually being in the majority or in a ruling class.)
8.8.2009 11:58am
Kelvin:
So Ken, where does the case in the post fall on your mainstream-extremist scale?
8.8.2009 12:59pm
Per Son:
Ken:

How often does the ACLU need to intervene or assist in cases you feel they should?

Also, everyone forgets that state ACLU's are nearly independent of the National.
8.8.2009 1:07pm
Owen H. (mail):
Ken- did Jerry Falwell count?
http://www.aclu.org/religion/frb/16040prs20020417.html

Tell you what, why not go through the list here and see.
http://www.aclufightsforchristians.com/

It's always amusing to see how often someone whines, "Where's the ACLU now?", when it turns out they do help out. Then the bitching has to shift to generalities and assumptions, which are usually wrong.
8.8.2009 1:33pm
Angus:
Doesn't follow that just because the ACLU takes on clients who are right-wing extremists and hate the ACLU, it's not left-wing.

Of course the ACLU is left-wing. Just like FIRE is right-wing. Both, though, take on cases that run counter to their political preferences. In fact, the ACLU does so much more often than FIRE.
8.8.2009 2:35pm
sk (mail):
I'm going to keep hammering you until you address the similarities and differences between this case (which you think is a free speech case) and the case you blogged about just a few weeks ago, where a guy lost his accounting license, spent time in jail, and spent 7 years regaining the license, because he left unwanted voicemails (regarding homosexual activity) on a machine with a lesbian YMCA director.

The obvious distinctions: voice mails vs emails, in this Nebraska case, the recipient specifically asked the sender to stop (and you find for the defendant), in the YMCA case there was no communication to stop, in this case, the conversation extended over two weeks, in the YMCA case, it wasn't clear, but I got the impression that the voice mails were over a shorter time period.

What I find disturbing is that you are concerned enough about this defendant to offer pro bono free speech defense, yet in the YMCA case, in which the caller spent two weeks in jail, paid a $2000 fine, and owed 200 hours of community service, then spent 7 years attempting to regain his professional license, you said something to the effect that 'I won't cry any tears for him. He put up with alot, but eventually got his license back, and was a pretty unattractive defendant so probably deserved the stress he received" (this is not a quote, but a reasonable summary of what I took your views to be).

I simply can't square you supposed belief in first amendment principles with your attitudes in the YMCA case. If its simply a matter of 'one case was phone, the other is email,' well, I think you are hooking your views on a technicality.

My inclination is that you are sympathetic to the homosexual movement (as a libertarian), and thus are allowing your personal political views (or your desire to appease your non-libertarian colleagues in academia) to really allow a hypocritical stance towards the 1st amendment. This post isn't necessarily the place for it, but really-you need to address why one first amendment warrants pro bono defense, while the other (Very Very similar) case warrants disdain for the defendant. It is simply hard to take you seriously (with regard to free speech issues) without addressing this disconnect.


For those that don't know what I'm talking about, look back over the last two weeks or so, for a post regarding an accountant who lost his state certification (for seven years) for unwanted voice mails he left at a YMCA office.

Sk
8.8.2009 6:55pm
Ken Arromdee:
I simply can't square you supposed belief in first amendment principles with your attitudes in the YMCA case. If its simply a matter of 'one case was phone, the other is email,' well, I think you are hooking your views on a technicality.

I think the idea is that one is a government official and one isn't. Repeatedly contacting a private person with things they don't like is harassment; repeatedly contacting a government official with things they don't like is democracy.
8.8.2009 11:31pm
Ken Arromdee:
Ken- did Jerry Falwell count?

I think Jerry Falwell is a complete non-factor in the politics of the year 2002, when that article is dated, so no.

http://www.aclufightsforchristians.com/

Offhand, I'd say that moat of those are legitimate examples, though I don't know how much are representative of the ACLU's cases as a whole.
8.8.2009 11:42pm
Owen Hutchins (mail):
How would that affect whether or not Falwell counted as "mainstream"? I'd certainly say his case was very "mainstream".

"Representative"? If you mean, "fighting for someone's rights that have been infringed upon", then yes they are. Or do you just mean "cases you agree with"?
8.9.2009 9:38am
Ken Arromdee:
How would that affect whether or not Falwell counted as "mainstream"? I'd certainly say his case was very "mainstream".


The point is that left-wing groups may fight for the rights of right-wingers when it's safe--when there's no chance that doing so will actually advance any right-wing causes. Helping Jerry Falwell in 2002 is pretty safe as such things go, since Falwell has no influence at that point in time.
8.9.2009 7:54pm
Owen H. (mail):
Can you define a "right-wing cause" here? I mean, they defended a group's anti-abortion ads on a buses, is that a "right-wing cause"? What defines a "safe" right-wing cause?

Seriously, you seem to be back-peddling. First it was only "extreme" groups that got defense, because no one takes them seriously, then it's "safe" positions. Has it occurred to you that they actually are consistent?
8.9.2009 8:14pm
zuch (mail) (www):
matthewccr:
I'm glad the ACLU is standing up for the defendant, but it sure seems like the ACLU revels in these 'strange-bedfellows' type of cases.
The speech that needs protection is the one you most disagree with ... or so goes the theory. The bland and mundane finds no objection. The ACLU is a principled organisation dedicated to specific ends ... and this means they aren't averse to defending Nazis or racists alongside communists and paedophiles. They think, quite clearly, that the free speech of all must be defended (under our system of law) if we are to have the freedom to speak as we want when we want. Because when we allow exceptions for the speech we most hate, we may find that others who are opposed to us will find such exceptions just as handy. So, it's not at all surprising that the ACLU weighed in here ... and they and the defendant are not "strange bedfellows" at all but rather two parties interested in the same end.

Cheers,
8.10.2009 3:02pm

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