- Antitrust crackdown on Big Tech based on predictions of where markets may head in future? Just don’t [Alan Reynolds in part three of series; parts one and two]
- Copyright holder sends mass demands to IP address holders, but for lower amounts and as “fines” rather than settlements. A move away from troll model, or refinement of it? [Timothy Geigner, TechDirt]
- Among the many issues far afield from Bill of Rights that ACLU is up to lately: defending drive-by ADA filing operations against remedial legislation [ACLU, earlier on its drift from civil liberties mission]
- Texas AG sues arguing unconstitutionality of Indian Child Welfare Act (ICWA); case involves blocking of “adoption [that] has the support of the boy’s biological parents and grandmother, Paxton said.” [Texas Tribune] More: Timothy Sandefur, NR;
- More local and personal than my usual fare, I ramble about my education and upbringing, why I live where I live, as well as some policy matters [Frederick News-Post “Frederick Uncut” local-newsmaker podcast with Colin McGuire and Danielle Gaines]
- “What’s the Difference between ‘Major,’ ‘Significant,’ and All Those Other Federal Rule Categories?” [Clyde Wayne Crews, Jr., CEI]
Posts Tagged ‘ACLU’
My new WSJ: will ACLU defend its own right to speak?
I’ve got a new opinion piece at the Wall Street Journal about the extraordinary recent happenings at William & Mary, part of the Virginia public university system, where activists associated with the Black Lives Matter movement shouted down the executive director of the American Civil Liberties Union of Virginia, Claire Gastañaga, at a scheduled talk where she was to deliver remarks on freedom of speech. Among the cries and chants heard: “ACLU, you protect Hitler, too,” “the oppressed are not impressed,” “the revolution will not uphold the Constitution,” and “liberalism is white supremacy.”
The follow-up was perhaps more disturbing still: after initially releasing a firm statement condemning the disruption, the ACLU of Virginia went back and removed much of the strongest language, acknowledging debate within its own ranks. In particular, it dropped language pointing out that the Constitution does not protect disruption (the so-called heckler’s veto) that prevents a speaker from speaking or audience members from hearing the speaker, and another passage pointing out that public campuses are subject to constitutional standards.
It’s enough (I argue) to remind you of Robert Frost’s quip about a liberal as someone too broadminded to take his own side in an argument. More seriously, it signals the continued erosion of the ACLU’s commitment to core speech and civil liberties issues, under pressure from a tide of activists who joined in its activities in pursuit of equality and social justice, not Bill of Rights issues. Further reading: Wendy Kaminer and followup.
Free speech roundup
- ACLU of Oregon has it right: even in near aftermath of violent Portland attack, government cannot revoke rally permits because of disapproval of the message being sent [Ronald K.L. Collins, Scott Shackford/Reason, John Samples/Cato]
- “The ‘eye for an eye’ theory of respecting free speech is particularly pernicious because it represents the worst sort of collectivism, something the principled Right ought reject.” [Ken White, Popehat] Courts have been doing a stellar job of upholding free speech. Other sectors of U.S. society, less so [same]
- tl:dr version: yes, legally it can. “Can Charlotte Pride parade exclude Gays for Trump float?” [Eugene Volokh]
- “California AG agrees: Calif. law does not preclude private citizens from displaying Confederate battle flag at county fairs” [Volokh, earlier]
- “Germany Raids Homes of 36 People Accused of Hateful Postings Over Social Media” [David Shimer, New York Times] Per David Meyer-Lindenberg, German police launched 234,341 investigations over insult or other hurtful speech last year [Scott Greenfield] A vigilant comrade has reported your tweet of Wednesday last to the constabulary as doubleplus ungood [Matt Burgess, Wired, last August on Met Police plans in U.K.]
- On inviting controversial speakers: “A response to Scott Alexander” [Flemming Rose, Cato]
May 17 roundup
- Deadline passes for repeal of Obama-era regulations through the Congressional Review Act, at least those that were properly reported to Congress at the time [David Jordan and Nia Prater, Medill/Charlotte Observer, I’m quoted]
- “Removal of Trump’s Muslim Comments Raise Travel Ban Questions” [Cogan Schneier, National Law Journal, and thanks for quote]
- What happened to the ACLU? [Wendy Kaminer/Alan Dershowitz, WSJ]
- Canada’s Charter allows for override of judicial rulings, and 2015 Canadian Supreme Court
ruling finding a constitutional right to strikes in essential public services would make a good occasion for it [Conrad Black, National Post, with a further discussion of the native residential schools issue] - New Jersey legislature passes a bill, which Gov. Chris Christie then vetoes, banning couples both 17 year old from marrying each other even when both sets of parents or a judge approve [Daily Caller; CBS News report quotes no critic of the idea]
- Protesters from inauguration-trashing DisruptJ20 among those at home of FCC chairman: “Alt-left targets Ajit Pai” [Elizabeth Harrington, Washington Free Beacon]
Constitutional law roundup
- When government uses regulation to retaliate against someone’s politics, relief shouldn’t depend on whether the harassment would have silenced an ordinary citizen [Ilya Shapiro, Trevor Burrus, and Thomas Berry, Cato]
- More thoughts on the constitutional amendment process [Mike Rappaport, Liberty and Law] To what extent did Antonin Scalia’s thinking on Article V constitutional conventions change over the years? [Josh Blackman on this 1979 AEI roundtable, Paulette Rakestraw and Mead Treadwell/Ricochet] I debated the issue in April in St. Louis [Show-Me Institute] “Conservative groups pushing for a constitutional convention are just six states short of their goal.” [ABA Journal]
- D.C. Circuit panel, Judge Brett Kavanaugh writing, strikes down structure of Consumer Financial Protection Bureau (CFPB) as unconstitutional [Thaya Brook Knight, Ira Stoll back in 2013]
- Sounds like the ACLU’s internal “Civil Liberties Caucus,” as it’s been nicknamed, continues to lose clout within the org [David Meyer Lindenberg, Fault Lines]
- It’s not just Baltimore: unreasonable and unconstitutional police searches are common [Steve Chapman]
- A curious subject of academic wrath: constitutional “extremism” [Scott Greenfield]
Free speech roundup
- “And Hansel and Gretel (children!) kill their captor by baking her in an oven.” — Scalia, J., noting the commonness of violence in youthful entertainment over the centuries, in Brown v. Entertainment Merchants Association (2005), his landmark opinion confirming full First Amendment protection for videogames as works of expression [Jim Copland/City Journal, Owen Good/Polygon; contrasting Hillary Clinton position]
- Scalia made crucial fifth vote for many First Amendment liberties. Which ones are safe now? [Ronald Collins first, second posts]
- Wisconsin redux? Montana ethics official targets political adversaries with subpoenas [Will Swaim, Reason]
- Goaded by governments, Facebook now has big program in Europe “finding and then removing comments that promote xenophobia.” [Independent, U.K.] Sad to see Israeli official backing legal curbs on freedom of social media [Times of Israel]
- “Flemming Rose talks about the decision to publish 12 cartoons featuring the prophet Mohammed in the Danish newspaper Jyllands-Posten in 2005.” [“Free Thoughts” podcast with Aaron Ross Powell and Trevor Burrus, Cato’s Libertarianism.org]
- 2016 workplan from ACLU doesn’t include free speech as a main concern, and some aren’t surprised by that [Ronald Collins]
- “Appeals Court Tells City It Can’t Use Its Terribly-Written Zoning Laws To Censor Speech” [Tim Cushing, TechDirt; Fourth Circuit, Norfolk, Va.]
Campus climate roundup
- “What student protestors should learn from bygone free speech fights” [Conor Friedersdorf]
- You’d expect Oberlin students to have some of the very best demands and you won’t be disappointed [Blake Neff/Daily Caller, my earlier Storify on student demands around the country] “Soon enough, microaggression monitoring was on the table” at Occidental College, and secret snitches will help [Scott Greenfield] President of Washington, D.C.’s American University responds to student demands. tl;dr version: “How high?”
- Diversity means cracking down on religious colleges that discriminate based on church dogma. Right? [Scott Greenfield] Human Rights Campaign huffs and puffs about (perfectly legal) religious-college Title IX exemptions [Washington Post, HRC] Canadian judge: B.C. provincial law society wrongly barred accreditation for conservative Christian law school [Globe and Mail, earlier]
- Just out: “Free Speech on College Campuses” issue of Cato Unbound leads with Greg Lukianoff (“Campus Free Speech Has Been in Trouble for a Long Time”), with responses to follow from Eric Posner and Catherine Ross;
- The year in campus hysteria [Ashe Schow/Examiner]
- Feds’ diversity bureaucracy has engaged in epic power grab in past couple of years, Congress’s omnibus spending bill rewards them with 7 percent funding hike [PowerLine, Bader and earlier, Schow/Examiner]
- “ACLU Silence Enables Campus Anti-free Speech Movement” [Nat Hentoff; related, Emily Ekins]
July 8 roundup
- You could see this coming: ACLU says its support for RFRA religious accommodation laws no longer applies in discrimination law context [David Bernstein]
- Root causes of violence: California anti-videogame, anti-gun pol Leland Yee cops a racketeering plea after spectacular arms-smuggling sting [Shackford/Reason, plea agreement via Popehat, earlier]
- FDA’s trans fat ban will have litigation implications [Glenn Lammi, WLF] And we mentioned the palm-oil angle earlier: “Why Environmentalists Are Afraid of the FDA’s Attack on Trans Fats” [Jason Plautz, National Journal]
- An economic liberty decision: “Texas Supreme Court overturns licensing requirements for eyebrow threaders” [Houston Chronicle, Carrie Sheffield/Opportunity Lives, Eugene Volokh, David Bernstein on Don Willett concurrence rebuking Lochner-phobia]
- In trial-lawyer-sourced screed against class action reform, reporter David Lazarus seems to imagine bone break cases are currently sued as class actions [L.A. Times]
- NYC taxi commission: OK, we don’t actually need to pre-clear every update of ride-sharing app software [Kristian Stout/Truth on the Market, earlier]
- And thanks for Overlawyered mention: “Are happier lawyers, cheaper legal fees on the horizon?” [Glenn Reynolds, USA Today]
The ACLU “evolves” on speech rights
In McCullen v. Coakley, the Supreme Court will reconsider its 2000 decision in Hill v. Colorado, which upheld a law prohibiting (among other things) leafleting and some other forms of peaceful protest within 100 feet of an abortion facility. (Massachusetts in 2007 passed a similar law which is now under challenge.) Noted civil libertarian Floyd Abrams, writing in the WSJ, sees the case as a straightforward one of supporting free speech for a position with which he happens to disagree. But the ACLU, Abrams notes, has changed its position between the earlier case and this one, and in a speech-unfriendly direction:
In a friend-of-the-court brief in Hill, the ACLU argued that because the Colorado statute “burdens substantially more speech than is necessary to accomplish the state’s goal,” the statute was facially unconstitutional. When the 2007 statute was proposed in Massachusetts, the Massachusetts ACLU opposed it, stating that “[i]f the message is unwelcome, as it often will be outside abortion clinics, the constitutionally appropriate response in a public forum is for the listener to walk away.”
But now that McCullen has reached the Supreme Court, both ACLU groups have switched sides. Their position, their brief states, has “evolved over time” and the Massachusetts law is, after all, constitutional on its face. Of course, the First Amendment has not changed in the 14 years between the filing of the ACLU briefs in Hill and McCullen; the ACLU has.
The old ACLU got it right.
P.S. More from Jonathan Adler. And the Cato Institute filed this amicus brief in the case of McCullen v. Coakley.
Med-mal meets Culture War: ACLU sues bishops over abortion policy
“The American Civil Liberties Union has filed a federal action against the U.S. Conference of Catholic Bishops, alleging that its ethical guidelines given to Catholic hospitals resulted in negligent care for a miscarrying woman.” The suit, in the name of a Muskegon, Mich. woman who allegedly experienced pain and suffering by not being advised at once to abort a doomed fetus, also names as defendants three individuals who have chaired a church-affiliated body by the name of Catholic Health Ministries. The suit does not however name as a defendant Mercy Health Partners, where plaintiff Tamesha Means was treated, nor does either the Bishops’ Conference nor CHM own Mercy. So what’s the legal theory? Well, the bishops issued ethical guidelines they expected Catholic-affiliated hospitals to follow, and CHM acted as Mercy’s “Catholic sponsor” vouching for its compliance with those guidelines. So maybe the theory consists of “incitement to commit malpractice.” Is it rude to point out that the law recognizes no tort of that sort? [ABA Journal, MLive, Alex Stein/Bill of Health (background on Michigan med-mal law)] See also: Seth Lipsky, N.Y. Post (“astounding” suit menaces defendants for hewing to their view of spiritual truths).