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ACLU replies to charges that it doesn't consistently defend free speech

Previous Politech message:

-------- Original Message --------
Subject: more on the ACLU thing
Date: Thu, 31 May 2007 09:19:46 -0400
From: Larry Seltzer <Larry@larryseltzer.com>
To: Declan McCullagh <declan@well.com>

There are letters to the editor in the WSJ today about the Wendy Kaminer
piece you discussed in your last mailing. See below.

Larry Seltzer
eWEEK.com Security Center Editor
http://security.eweek.com/ <blocked::http://security.eweek.com/>
Contributing Editor, PC Magazine


ACLU Vows It Is Unbiased When Civil Liberties Are at Stake

Wendy Kaminer's assertion that the ACLU no longer defends the free
speech rights of people whose views we do not share is simply wrong
("The American Liberal Liberties Union
set-box> ," editorial page, May 23).

Right now, the ACLU is challenging laws in several states designed to
ban picketing by anti-gay groups at military funerals.

Just last month, the ACLU of Ohio spoke out in defense of a Nazi group's
right to march in Cincinnati on Hitler's birthday (the issue did not
wind up in the court).

The ACLU is equally evenhanded when other civil liberties are at stake.
In recent years, we have defended the rights of the late Rev. Jerry
Falwell and radio personality Rush Limbaugh in cases involving religious
liberty and privacy.

The linchpin of Ms. Kaminer's misguided criticism is that the ACLU
failed to defend a high-school student in San Diego who was barred from
wearing an anti-gay T-shirt. In fact, the ACLU of San Diego has already
drafted a brief, due in federal appeals court next month, supporting the
free speech claims in that case.

The ACLU has defended the rights of speakers across the political
spectrum for almost 90 years. It still does and it always will.

Steven R. Shapiro
Legal Director, ACLU
New York

Ms. Kaminer points out the ACLU's selectiveness and inconsistency about
free speech.

It once sued the owners of the Alpine Village Inn for not allowing
neo-Nazis to display swastikas in their restaurant, even though the
restaurant was a private business.

But in Aguilar v. Avis (1999), the ACLU argued that racial slurs aimed
at illegal aliens were not speech, but just a "verbal act." In that
case, it helped convince the California Supreme Court, in a 4-to-3
ruling, to uphold an injunction banning any racial slur in a private
workplace. The injunction banned even comments that a complainant learns
about secondhand.

Today, the ACLU is supporting the federal hate-crimes bill, which would
allow people found innocent of hate-crimes in state court to be
reprosecuted in federal court.

The ACLU trumpets the fact that the bill would cover gays along with
other minorities. It ignores the fact that backers of the bill have
openly sought to take advantage of a loophole in constitutional
protections against double jeopardy, a loophole the ACLU once opposed.

Hans Bader
Counsel for Special Projects
Competitive Enterprise Institute

The fight over "hate speech" addressed by Ms. Kaminer is not recent. As
appointed counsel for an alleged cross-burner, I successfully briefed
and argued the first "hate speech" case heard before the U.S. Supreme
Court, RAV v. St. Paul (1992). I did so without the assistance of the
ACLU. Instead, the ACLU submitted an amicus brief that undercut our
argument in an apparent attempt to obtain an opinion that allowed
censorship of hate speech. As I stated in a book I wrote about the case,
"Beyond the Burning Cross," concerning the ACLU's involvement: "an
organization that promoted itself as a nonpartisan civil liberties
organization had shown that it was neither . . . [the ACLU] sacrificed
principle for political expediency, the defense of civil liberties for
the promotion of political constituencies." It is indeed sad to see that
it appears the sacrificing of principle within the organization

Edward J. Cleary
St. Paul, Minn.

Posted by Declan McCullagh on Jun 08, 2007 in category free-speech

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