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Thursday, May 24, 2007


American Liberal Liberties Union

In an editorial in The Wall Street Journal, The American Liberal Liberties Union, Wendy Kaminer takes the ACLU to task for trending towards what she sees as a selective approach to free speech.


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.


In June 1998, my attorneys filed a request to allow my former company, ApolloMedia, to submit an amicus curiae brief in the Supreme Court of California in a First Amendment case, Oscar Aguilar et al. vs. Avis Rent A Car System, Inc., et al., that was being observed nationwide as a harbinger of speech in the American workplace. ApolloMedia's amicus marked the first time that Supreme Court determinations pertaining to the Internet were being applied to speech in the workplace, following the Court of Appeal's instruction to the government to create a list of "proposed epithets" or what we termed "Government-Forbidden Words."

ApolloMedia opposed the position taken by the American Civil Liberties Union (ACLU) in this case. The ACLU had filed a brief in support of the plaintiffs alleging that inappropriate workplace speech created a hostile work environment. An appellate court required the trial court to propose a list of "proposed epithets" or "Government-Forbidden Words" to be enjoined from the workplace.

As I stated in a media release back in 1998:

We respectfully disagree with the ACLU on this particular issue. We are not implying that inappropriate or racist speech be an acceptable workplace protocol, or encouraging its use, but the courts should not confuse pure speech with conduct, nor allow government to determine which words may or may not be uttered, especially without any regard for context or occasion.

One of my attorneys, William Bennett Turner clarified the distinction between recourse available to victims of verbal abuse versus a prior restraint enacted by the court itself:

Making certain kinds of workplace speech illegal is a difficult issue. The main problem with the lower court's ruling in this case is not whether the victim of verbal abuse can sue for damages, but whether the government -- the court -- can issue orders prohibiting certain disfavored words from being said at all, regardless of the context in which they're said.

While we had taken a position that opposed the ACLU, it's worth noting that a year earlier, in 1997, in addition to filing a lawsuit against Attorney General Janet Reno (ApolloMedia v. Reno) challenging a provision of the Communications Decency Act (CDA) which was ultimately heard by the United States Supreme Court, we had also filed an amicus curiae brief in support of the ACLU in another CDA challenge before the Supreme Court, Reno v. ACLU.

So although I generally believe the ACLU to be well intended, and have demonstrated my support by filing court documents supporting their position, their tendency to allow political correctness to muddy their free speech purity, as Kaminer refers to in her editorial, is not all that new a phenomenon.

Declan McCullagh, the CNet journalist who also happened to be one of the plaintiffs in the 1996 CDA case, ACLU v. Reno, made the same point on his Politech website:

It's true that ACLU litigators have done terrific work on free speech cases before, and will continue to do so. It has represented me as a plaintiff in the 1996 CDA case, for which I will always be grateful, and has devoted countless resources to COPA as well. The organization boasts the most principled and ardent First Amendment lobbyists in Washington, who are willing to take controversial stands on things like outlawing morphed child porn (a stand later vindicated by the Supreme Court).

But those attorneys and lobbyists ultimately report to a national board that seems to be growing more politically correct by the day. (Wendy was a dissident board member; I'm not sure if she's still on the board.)

This is not exactly a new phenomenon. Liberals and progressives have long been split between their totalitarian-minded leftist wing that loves to enforce political correctness through "hate speech" laws and campus speech codes -- and those who recognize the social and political dangers inherent in banning speech that someone dislikes, and believe the answer to objectionable speech is more speech.

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