FAN 97 (First Amendment News) Trend Continues: ACLU’s 2016 Workplan Omits Mention of Protecting First Amendment Free-Expression Rights — No Longer a Fundraising Concern?

The ACLU’s timidity in protecting speech looks more and more like complicity in censoring it. 

                                 — Wendy Kaminer (Feb. 8, 2016)

It is that time of year again when those of us who have supported and continue to support the American Civil Liberties Union get out our checkbooks. Why? Because this is the time when we receive an annual fundraising letter from the group’s Executive Director. The letter is accompanied by an annual National ACLU Workplan. The latter “lays out [the ACLU’s] plans for the year ahead [and] always addresses the most critical civil liberties challenges facing our country” (emphasis added).

So begins a January 29, 2016 fundraising letter for Anthony D. Romero. Surprisingly, protecting free-speech freedoms is not listed as one of this year’s “critical civil liberties” issues. Neither of the documents contains any mention of the First Amendment.

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The 2016 letter and Workplan cover a “broad spectrum” of “wide-ranging assaults on liberty.” In that regard, five areas of government wrong doing are identified where “fundamental freedoms are on the line.” Free speech is not flagged as one of those endangered “fundamental freedoms.”

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Workplans, Priorities & Fundraising

Last year, when a similar omission in the ACLU’s 2015 Workplan (see FAN 49) was pointed out, Mr. Romero replied (see FAN 50) by noting the many areas in which both the national ACLU and its state affiliates continue to defend a variety of free-speech rights. Hence, the ACLU had not abandoned this field (see two news items below). Still, insofar as the workplans are any indication of the group’s priorities, protecting free speech does not appear to be one of them, at least not for fundraising purposes.

 Contrast Ohio 2016 Workplan (listing “protecting the right to dissent” as a top priority — “The ACLU of Ohio has a longstanding history of being the foremost guardian of the freedom of speech and assembly. Our work has never been more important as we are now preparing for the Republican National Convention.”)

Some Dissension in the ACLU ranks

Wendy Kaminer

Wendy Kaminer

Wendy Kaminer is an ardent free-speech advocate; she is currently a member of the advisory board of the Foundation for Individual Rights in Education (FIRE). Ms. Kaminer Kaminer was a member of the board of the ACLU of Massachusetts from the early 1990s until June 2009. She was also a national board member of the ACLU from 1999 until her term expired in June 2006. As to the omission of any reference to protecting First Amendment free-speech freedoms in the 2016 Workplan, she stated:

I’m not at all surprised that the ACLU’s 2016 work plan doesn’t include an explicit commitment to protecting freedom of speech. At the national level, ACLU has been exercising its right to remain silent on key free speech issues for years, in apparent deference to progressive support for restricting  speech deemed racist, sexist, homophobic or otherwise exclusionary. Still, while it’s unsurprising, the ACLU’s withdrawal from free speech battles that could eventually lead the U.S. to adopt a Western European approach to regulating “hate speech” is indeed alarming. As threats to free speech intensify — on campus (thanks partly to arguably unconstitutional federal mandates) and in the remarkable tendency of some liberals to blame the victims of violence for giving offense to their murderers (remember Charlie Hebdo) — the ACLU’s timidity in protecting speech looks more and more like complicity in censoring it. 

Harvey Silverglate

Harvey Silverglate

Here is how Harvey A. Silverglate, co-founder of FIRE and a former member of the Board President of the ACLU of Massachusetts, replied:

Sadly, it comes as no surprise that the national ACLU Board and Staff are nowhere to be seen in the increasingly difficult battle to protect First Amendment freedom of expression rights. This is especially so in areas where the ACLU, more and more, pursues a political or social agenda where the overriding importance of the goal transcends, in the eyes of ACLU’s leadership, the needed vitality of free speech principles neutrally and apolitically applied. Fortunately, some ACLU state affiliates still carry the free speech battle flag, but they are a diminishing army in a war that is getting more and more difficult, even though more and more important, to wage.  

Does the New ACLU Still Support the First Amendment Positions of the Old ACLU?  

Consider the following cases — would the national ACLU still defend the First Amendment claims it once defended in all of the cases listed below?

  1. Brandenburg v. Ohio (1969) (KKK hate speech) (Norman Dorsen, Melvin L. Wulf, Eleanor Holmes Norton & Bernard A. Berkman)
  2. Buckley v. Valeo (1976) (campaign finance) (Joel M. Gora & Melvin Wulf)
  3. National Socialist Party of America v. Village of Skokie (1977) (Nazi hate speech)  (Burt Joseph in 7th Cir.)
  4. R.A.V. v. St. Paul (1992) (race hate speech) (Steven R. Shapiro, John A. Powell & Mark R. Anfinson)
  5. Lorillard Tobacco Company v. Reilly (2000) (tobacco advertising) (Steven R. Shapiro)
  6. Hill v. Colorado (2000) (abortion clinic protests) (Stephen R. Shapiro) {contrast ACLU amicus brief filed in McCullen v. Coakley (2014) (Steven R. Shapiro)}
  7. Citizens United v. FEC (2010) (campaign finance) (Steven R. Shapiro)

The 2014 & 2015 Terms: The ACLU & First Amendment Free-Expression Cases 

 In the 2015-2016 Term, thus far the ACLU has not filed a brief in either of the two First Amendment cases concurrently under review by the Supreme Court — Heffernan v. City of Patterson and Friedrichs, et al. v. California Teachers Association, et al.

In the 2014-2015 Term, the ACLU did not file a brief in Reed v. Gilbert, though it did file briefs supporting the First Amendment free-expression claims in Walker v. Texas Division, Sons of Confederate Veterans, Inc. and Williams-Yulee v. Florida Bar

Open Invitation to Reply 

As in the past, Mr. Romero is invited to reply, both to the Workplan issue and to the question concerning the ACLU’s continued commitment to protecting First Amendment rights in the seven cases listed above. Better still, and to reiterate my request from last year, I welcome the chance to do a Q & A with Mr. Romero on the ACLU and the First Amendment.

A Hyperlinked History of the Controversy:  ACLU & the First Amendment 

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What Citizens United Did & Did Not Do 

William Josephson (credit: NY LJ)

William Josephson (credit: NY LJ)

In a long letter to the New York Times (Feb. 5, 2016), Ira Glasser & William Josephson* ventured to shed some light on the “dark money” controversy.  Here are a few excerpts:

“First, most if not all of the money spent or contributed by the Koch brothers, and by people both on the right (like Sheldon Adelson) and on the left (like George Soros), has been spent by those people as individuals. They had that right long before Citizens United. . . . “

“Second, . . . the secrecy of such contributions — ‘unlimited amounts of money,’ the review puts it, ‘with virtually no disclosure of its source’ — is [not] due to Citizens United. [T]he decision explicitly reaffirmed the constitutionality of disclosure laws. If disclosure has been blocked, the culprits are the Internal Revenue Service and Congress, not the Supreme Court and not Citizens United. . . .” The authors then go on to explain why that is so.

* Mr. Glasser was the executive director of the American Civil Liberties Union from 1978-2001, and Mr.  Josephson is a retired partner at Fried, Frank, Harris, Shriver & Jacobson and former assistant attorney general in charge of the Charities Bureau, New York State Department of Law (1999-2004).

National ACLU Prevails: Photos of Alleged Detainee Abuse From War on Terror Released

This from a news story in the Long Island Press (Feb. 8, 2016):

“After more then a decade of litigation, the US government last week released 198 photographs of alleged detainee abuse in Iraq and Afghanistan—but the most damning pictures still remain hidden from the public eye, a civil liberties group has said.”

“The release stems from a lawsuit brought by the American Civil Liberties Union in 2004. But they represent only a sliver of the estimated 2,000 images the ACLU has sued to be made public. . . .”

Rhode Island ACLU Prevails: Providence to halt enforcement of anti-panhandling ordinance

This from the ACLU of Rhode Island (Feb. 9, 2016):

“In a major step towards reducing the criminalization of the poor in Rhode Island, the City of Providence has advised the American Civil Liberties Union of Rhode Island that it would halt enforcement of an anti-panhandling ordinance that has led to the harassment and arrest of homeless individuals. The ACLU had called for this action in a letter delivered to Mayor Jorge Elorza two weeks ago, in which it pointed out the ordinance’s dubious constitutionality and its impact on the rights of the poor and the homeless.”

aclu_logo“Advocates for the homeless have been critical of a seemingly aggressive enforcement by the City of laws that target innocuous activity of the homeless in public. In its letter, the ACLU had noted that the City’s ban on so-called “aggressive solicitation” directly targets the homeless, and that a number of similar ordinances have been recently struck down by the courts for infringing on First Amendment rights. The ACLU therefore requested that the City immediately halt its enforcement. In response, the City agreed to that request and also to terminate any pending prosecutions. . . .”

“ACLU of Rhode Island executive director Steven Brown said today: ‘This is a very positive development, and we applaud the City for recognizing that this ordinance cannot withstand constitutional scrutiny. We are confident that officials will make sure that any harassment of the homeless by police for peacefully soliciting donations, even if it doesn’t lead to an arrest for panhandling, will cease.’ . . . “

Theodore Schroeder

Theodore Schroeder

63 Years Ago Today in First Amendment History 

On this date in 1953, Theodore Schroeder, an early free-speech activist, died. Below is an excerpt from Today in Civil Liberties History about him:

“Theodore Schroeder was the founder and leader of the Free Speech League (1902 – end date unknown). The FSL preceded the ACLU and handled a number of important free speech cases in the years before World War I. Schroeder published several books on free speech. The Free Speech League faded away during the civil liberties crisis of World War I and eventually disappeared, although the exact date of its demise is not known.”

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”) (See Rick Hasen’s commentary here)

Review Granted

  1. Heffernan v. City of Paterson (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here) (Lyle Denniston commentary)

Oral Arguments Schedule 

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al. (transcript here)
  2. January 19, 2016:  Heffernan v. City of Paterson (see Howard Wasserman SCOTUSblog commentary here)(transcript here)

Review Denied

  1. Miller v. Federal Election Commission
  2. Sun-Times Media, LLC v. Dahlstrom
  3. Rubin v. Padilla
  4. Hines v. Alldredge
  5. Yamada v. Snipes
  6. Center for Competitive Politics v. Harris
  7. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Justice v. Hosemann 
  2. Town of Mocksville v. Hunter
  3. Cressman v. Thompson
  4. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)
  5. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  6. Electronic Arts, Inc. v. Davis
  7. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority (relisted)

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims)

Freedom of Information Case

 The Court is in recess. It’s next Conference is scheduled for Friday, February 19, 2016.

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

NEXT SCHEDULED FAN #98: Wednesday, February 17, 2016

LAST SCHEDULED FAN #96: “Animal Rights Group Claims First Amendment Right to Lift Park Service Closure of Yellowstone Park During Bison Capture

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1 Response

  1. Quixote says:

    I recall reading other articles about this during the 2007-2009 period, so I think your bibliography is incomplete and the ACLU’s laudably measured approach was already well known back then. And as for the substance of the matter, would you have the ACLU defend someone like the insidious “Dead Sea Scrolls provocateur”? The chief judge of the New York Court of Appeals, in his “First Amendment dissent,” asserted that the Scroll-Troll prosecution “amounts to an atavism at odds with the First Amendment and the free and uninhibited exchange of ideas it is meant to foster,” but I don’t see you or any other academics eloquently condemning this purportedly atavistic assault on freedom of speech. So you actually agree with the ACLU about some of these cases, don’t you? See the documentation of America’s leading criminal “satire” case at:

    http://raphaelgolbtrial.wordpress.com/