Vegas
05-23-2007, 11:13 AM
http://opinionjournal.com/editorial/feature.html?id=110010111
"ACLU Defends Nazi's Right to Burn Down ACLU Headquarters," the humor magazine The Onion announced in 1999. Those of us who loved the ACLU, and celebrated its willingness to defend the rights of Nazis and others who had no regard for our rights, considered the joke a compliment. Today it's more like a reproach. Once the nation's leading civil liberties group and a reliable defender of everyone's speech rights, the ACLU is being transformed into just another liberal human-rights group that reliably defends the rights of liberal speakers.
This transformation is gradual, unacknowledged and not readily apparent, since evidence of it lies mainly in cases the ACLU does not take. It's naturally easier to know what an organization is doing (and advertising) than what it is not doing. But a review of recent free-speech press releases turns up only a handful of cases in which ACLU state affiliates defended the rights of conservative, antigay or otherwise politically incorrect speakers. And lately the national organization has been remarkably quiet in several important free-speech cases and controversies.
One of the clearest indications of a retreat from defending all speech regardless of content is the ACLU's virtual silence in Harper v. Poway, an important federal case involving a high-school student's right to wear a T-shirt condemning homosexuality. Of course, the ACLU doesn't speak out on every case, but historically it has vigorously defended student speech rights, as its Web site stresses. It is currently representing a student in a speech case before the Supreme Court, Morse v. Frederick (involving the right of a student to carry a nonsensical "Bong Hits 4 Jesus" banner at an off-campus event). The ACLU pays particular attention to the right to wear T-shirts with pro-gay messages in school, proudly citing cases in which it represented students wearing pro-gay (as well as anti-Bush) T-shirts. This year, the ACLU awarded a Youth Activist Scholarship to a student who fought the efforts of her school to bar students from wearing T-shirts that said "Gay, Fine by me."
So in 2004, when Tyler Chase Harper was disciplined for wearing a T-shirt declaring his religious objections to homosexuality, civil libertarians might have expected the ACLU to protest loudly. Mr. Harper was barred from attending classes when he wore the antigay T-shirt to school on an official "Day of Silence," when gay students taped their mouths to symbolize the silencing effect of intolerance. Represented by the Alliance Defense Fund, he sued the school district. That same year, the ACLU initiated the first of two actions against a Missouri school that punished students for wearing "gay supportive T-shirts," eventually securing a promise from the school to "stop censoring," the ACLU Web site boasts. Mr. Harper, however, was unsuccessful in his quest to stop school censorship. In a patronizing, antilibertarian decision in which Judge Stephen Reinhardt stressed the imagined feelings of gay students, the Ninth Circuit rejected Mr. Harper's First Amendment claims. (There was a sharp dissent from Judge Alex Kozinski.)
Perhaps the ACLU was observing its own prolonged Day of Silence, because, while it pays close attention to federal appellate court decisions on civil liberties, it effectively ignored this terrible precedent, even when Mr. Harper appealed to the Supreme Court. The Court dismissed the case as moot because Mr. Harper had graduated but took the unusual step of vacating the decision so that it no longer exists as precedent (no thanks to the ACLU). Mr. Harper's younger sister, still in school, continued pressing his claims and her case is pending before the Ninth circuit. The ACLU has not adopted her cause either.
The Harpers didn't need representation from the ACLU. But the organization frequently speaks up for the rights of people it does not represent, like Guantanamo detainees, and often files amicus briefs in important civil liberties cases. Given its focus on student rights and religious liberty (one of the ACLU's priorities), it's hard to explain the ACLU's apparent equanimity about the violation of Mr. Harper's First Amendment rights--unless you consider the content of his speech.
This case does not appear to be anomalous. Despite its professed commitment to religious liberty, for example, the ACLU tends to absent itself from cases on college campuses involving the associational rights of Christian student groups to discriminate against gay students, in accordance with their religious beliefs. But conservative students might be grateful for the ACLU's absence. Consider its intervention in a successful federal court challenge to an unconstitutional speech code at Georgia Tech, brought by the Alliance Defense Fund in 2006 on behalf of two conservative religious students. The ACLU of Georgia filed an amicus brief proposing a substitute but still overbroad "antiharassment" policy that included a prohibition on "injurious communications . . . directed toward an individual because of their characteristics or beliefs." In other words: Students should be punished for sharply criticizing or satirizing each other's beliefs if their remarks are deemed "injurious." Occasionally an ACLU affiliate does intervene in defense of politically incorrect speech and vigorous debate on campus. But the Foundation for Individual Rights In Education has become a much more reliable advocate for the rights of all college students, regardless of ideology or religion. (I serve on both FIRE's advisory board and the board of the Massachusetts ACLU affiliate.)
The ACLU was even AWOL in one of the most visible and frightening free-speech controversies in recent years--the Muhammad cartoons, which many condemned as "hate speech." When Muslim groups violently protested the cartoons (first published in the Danish press), when American newspapers declined to publish them for fear of reprisals, and when the U.S. State Department condemned their publication--the ACLU exercised its right to remain silent. In fact, its press office actually advised ducking questions about the cartoons that might arise during discussions of torture at Abu Ghraib. A set of talking points from the press office recommended responding to questions about the cartoons by exhorting the U.S. government to "demonstrate . . . that it is taking the Abu Ghraib images seriously." (This was later spun as an effort to stay on message about abuses at Abu Ghraib.)
Not until an ACLU donor complained about this silence on the cartoon controversy, and questions about it were raised before the ACLU board, did ACLU Executive Director Anthony Romero speak up--quietly. He mentioned the controversy in a relatively obscure dinner speech to the National Association of Hispanic Journalists. He sent a letter to the University of Illinois urging it not to discipline student editors who published the cartoons in a campus paper. In a letter to the ACLU board, Mr. Romero both denied and defended the ACLU's relative silence: "With regard to the cartoons, rather than put out a hortatory statement that no one would read (except insiders) but might make us feel good about ourselves, we have tried to engage in thoughtful forums and discussions that relate to the issue. Speaking out on an issue involves more than slapping a paragraph together and posting it on a website."
Perhaps. But, like other advocacy groups, the ACLU routinely circulates hortatory statements to insiders that herald the organization's important work. And it regularly posts slapped-together paragraphs on the ACLU Web site (and in emails) about the abuses of the Bush administration, among other subjects. In fact, much of the ACLU's post 9/11 work (and its budget priorities) involves public education. Whatever Mr. Romero's reasons for staying out of the cartoon controversy, they did not include disdain for paying lip service to free speech.
Why did the ACLU avoid issuing a loud and clear public statement decrying violent efforts to suppress the Muhammad cartoons? Its silence may have reflected growing sympathy among ACLU leaders and supporters for restricting what many liberals condemn as hate speech. "Take hate speech," Mr. Romero remarked to the New York Times in May 2006. "While believing in free speech, we do not believe in or condone speech that attacks minorities." (He was commenting on a proposal to bar board members from criticizing the ACLU--a proposal that was amended only after being exposed in the Times.)
Liberal sympathy for restricting hate speech may also explain the failure of the New York Civil Liberties Union to oppose the New York City Council's recent, symbolic moratorium on use of the n-word. NYCLU Executive Director Donna Lieberman justified her silence to the New York Times, explaining that, "The Council is entitled to a point of view. It would be an entirely different matter if the Council was considering a law to ban use of the n-word." But this ignores the natural tendency of an official, symbolic ban on speech to encourage support for an actual ban. If the City Council passed a symbolic resolution denouncing flag burning or criticizing the president, I'd bet my yearly contribution to the ACLU that Ms. Lieberman would oppose it vociferously.
Finally, the ACLU has affirmatively supported legislative restrictions on speech it does not like, even when it is clearly political. Last March, the ACLU announced its support for a bill introduced by Rep. Carolyn Maloney (D., N.Y.) aimed at barring antiabortion centers from advertising "abortion counseling" services. While some crisis pregnancy centers that offer abortion counseling can fairly be accused of engaging in a bait and switch (trying to lure women seeking abortions into counseling sessions with antiabortion advocates), they're also engaged in political speech at the core of First Amendment protections. Not surprisingly, the ACLU's endorsement of legislation restricting this speech generated controversy when it was reported in the New York Sun. How did ACLU leaders respond? The press release announcing support for the Maloney bill was deleted from the ACLU Web site. Today, one year later, the national board is seriously considering adopting a policy on commercial speech that would support restrictions on advertising by nonprofit antiabortion clinics.
This is not the same organization that once took pride in its costly, principled decision to defend the rights of neo-Nazis to march in a community of Holocaust survivors in Skokie, Ill. Of course the ACLU hasn't definitively abandoned its defense of speech: Large, national organizations change incrementally. But people should no longer depend on the ACLU to defend what they preach (especially at a cost), if it disapproves of what they practice.
"ACLU Defends Nazi's Right to Burn Down ACLU Headquarters," the humor magazine The Onion announced in 1999. Those of us who loved the ACLU, and celebrated its willingness to defend the rights of Nazis and others who had no regard for our rights, considered the joke a compliment. Today it's more like a reproach. Once the nation's leading civil liberties group and a reliable defender of everyone's speech rights, the ACLU is being transformed into just another liberal human-rights group that reliably defends the rights of liberal speakers.
This transformation is gradual, unacknowledged and not readily apparent, since evidence of it lies mainly in cases the ACLU does not take. It's naturally easier to know what an organization is doing (and advertising) than what it is not doing. But a review of recent free-speech press releases turns up only a handful of cases in which ACLU state affiliates defended the rights of conservative, antigay or otherwise politically incorrect speakers. And lately the national organization has been remarkably quiet in several important free-speech cases and controversies.
One of the clearest indications of a retreat from defending all speech regardless of content is the ACLU's virtual silence in Harper v. Poway, an important federal case involving a high-school student's right to wear a T-shirt condemning homosexuality. Of course, the ACLU doesn't speak out on every case, but historically it has vigorously defended student speech rights, as its Web site stresses. It is currently representing a student in a speech case before the Supreme Court, Morse v. Frederick (involving the right of a student to carry a nonsensical "Bong Hits 4 Jesus" banner at an off-campus event). The ACLU pays particular attention to the right to wear T-shirts with pro-gay messages in school, proudly citing cases in which it represented students wearing pro-gay (as well as anti-Bush) T-shirts. This year, the ACLU awarded a Youth Activist Scholarship to a student who fought the efforts of her school to bar students from wearing T-shirts that said "Gay, Fine by me."
So in 2004, when Tyler Chase Harper was disciplined for wearing a T-shirt declaring his religious objections to homosexuality, civil libertarians might have expected the ACLU to protest loudly. Mr. Harper was barred from attending classes when he wore the antigay T-shirt to school on an official "Day of Silence," when gay students taped their mouths to symbolize the silencing effect of intolerance. Represented by the Alliance Defense Fund, he sued the school district. That same year, the ACLU initiated the first of two actions against a Missouri school that punished students for wearing "gay supportive T-shirts," eventually securing a promise from the school to "stop censoring," the ACLU Web site boasts. Mr. Harper, however, was unsuccessful in his quest to stop school censorship. In a patronizing, antilibertarian decision in which Judge Stephen Reinhardt stressed the imagined feelings of gay students, the Ninth Circuit rejected Mr. Harper's First Amendment claims. (There was a sharp dissent from Judge Alex Kozinski.)
Perhaps the ACLU was observing its own prolonged Day of Silence, because, while it pays close attention to federal appellate court decisions on civil liberties, it effectively ignored this terrible precedent, even when Mr. Harper appealed to the Supreme Court. The Court dismissed the case as moot because Mr. Harper had graduated but took the unusual step of vacating the decision so that it no longer exists as precedent (no thanks to the ACLU). Mr. Harper's younger sister, still in school, continued pressing his claims and her case is pending before the Ninth circuit. The ACLU has not adopted her cause either.
The Harpers didn't need representation from the ACLU. But the organization frequently speaks up for the rights of people it does not represent, like Guantanamo detainees, and often files amicus briefs in important civil liberties cases. Given its focus on student rights and religious liberty (one of the ACLU's priorities), it's hard to explain the ACLU's apparent equanimity about the violation of Mr. Harper's First Amendment rights--unless you consider the content of his speech.
This case does not appear to be anomalous. Despite its professed commitment to religious liberty, for example, the ACLU tends to absent itself from cases on college campuses involving the associational rights of Christian student groups to discriminate against gay students, in accordance with their religious beliefs. But conservative students might be grateful for the ACLU's absence. Consider its intervention in a successful federal court challenge to an unconstitutional speech code at Georgia Tech, brought by the Alliance Defense Fund in 2006 on behalf of two conservative religious students. The ACLU of Georgia filed an amicus brief proposing a substitute but still overbroad "antiharassment" policy that included a prohibition on "injurious communications . . . directed toward an individual because of their characteristics or beliefs." In other words: Students should be punished for sharply criticizing or satirizing each other's beliefs if their remarks are deemed "injurious." Occasionally an ACLU affiliate does intervene in defense of politically incorrect speech and vigorous debate on campus. But the Foundation for Individual Rights In Education has become a much more reliable advocate for the rights of all college students, regardless of ideology or religion. (I serve on both FIRE's advisory board and the board of the Massachusetts ACLU affiliate.)
The ACLU was even AWOL in one of the most visible and frightening free-speech controversies in recent years--the Muhammad cartoons, which many condemned as "hate speech." When Muslim groups violently protested the cartoons (first published in the Danish press), when American newspapers declined to publish them for fear of reprisals, and when the U.S. State Department condemned their publication--the ACLU exercised its right to remain silent. In fact, its press office actually advised ducking questions about the cartoons that might arise during discussions of torture at Abu Ghraib. A set of talking points from the press office recommended responding to questions about the cartoons by exhorting the U.S. government to "demonstrate . . . that it is taking the Abu Ghraib images seriously." (This was later spun as an effort to stay on message about abuses at Abu Ghraib.)
Not until an ACLU donor complained about this silence on the cartoon controversy, and questions about it were raised before the ACLU board, did ACLU Executive Director Anthony Romero speak up--quietly. He mentioned the controversy in a relatively obscure dinner speech to the National Association of Hispanic Journalists. He sent a letter to the University of Illinois urging it not to discipline student editors who published the cartoons in a campus paper. In a letter to the ACLU board, Mr. Romero both denied and defended the ACLU's relative silence: "With regard to the cartoons, rather than put out a hortatory statement that no one would read (except insiders) but might make us feel good about ourselves, we have tried to engage in thoughtful forums and discussions that relate to the issue. Speaking out on an issue involves more than slapping a paragraph together and posting it on a website."
Perhaps. But, like other advocacy groups, the ACLU routinely circulates hortatory statements to insiders that herald the organization's important work. And it regularly posts slapped-together paragraphs on the ACLU Web site (and in emails) about the abuses of the Bush administration, among other subjects. In fact, much of the ACLU's post 9/11 work (and its budget priorities) involves public education. Whatever Mr. Romero's reasons for staying out of the cartoon controversy, they did not include disdain for paying lip service to free speech.
Why did the ACLU avoid issuing a loud and clear public statement decrying violent efforts to suppress the Muhammad cartoons? Its silence may have reflected growing sympathy among ACLU leaders and supporters for restricting what many liberals condemn as hate speech. "Take hate speech," Mr. Romero remarked to the New York Times in May 2006. "While believing in free speech, we do not believe in or condone speech that attacks minorities." (He was commenting on a proposal to bar board members from criticizing the ACLU--a proposal that was amended only after being exposed in the Times.)
Liberal sympathy for restricting hate speech may also explain the failure of the New York Civil Liberties Union to oppose the New York City Council's recent, symbolic moratorium on use of the n-word. NYCLU Executive Director Donna Lieberman justified her silence to the New York Times, explaining that, "The Council is entitled to a point of view. It would be an entirely different matter if the Council was considering a law to ban use of the n-word." But this ignores the natural tendency of an official, symbolic ban on speech to encourage support for an actual ban. If the City Council passed a symbolic resolution denouncing flag burning or criticizing the president, I'd bet my yearly contribution to the ACLU that Ms. Lieberman would oppose it vociferously.
Finally, the ACLU has affirmatively supported legislative restrictions on speech it does not like, even when it is clearly political. Last March, the ACLU announced its support for a bill introduced by Rep. Carolyn Maloney (D., N.Y.) aimed at barring antiabortion centers from advertising "abortion counseling" services. While some crisis pregnancy centers that offer abortion counseling can fairly be accused of engaging in a bait and switch (trying to lure women seeking abortions into counseling sessions with antiabortion advocates), they're also engaged in political speech at the core of First Amendment protections. Not surprisingly, the ACLU's endorsement of legislation restricting this speech generated controversy when it was reported in the New York Sun. How did ACLU leaders respond? The press release announcing support for the Maloney bill was deleted from the ACLU Web site. Today, one year later, the national board is seriously considering adopting a policy on commercial speech that would support restrictions on advertising by nonprofit antiabortion clinics.
This is not the same organization that once took pride in its costly, principled decision to defend the rights of neo-Nazis to march in a community of Holocaust survivors in Skokie, Ill. Of course the ACLU hasn't definitively abandoned its defense of speech: Large, national organizations change incrementally. But people should no longer depend on the ACLU to defend what they preach (especially at a cost), if it disapproves of what they practice.