Tagged: civil liberties

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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  Read More

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Looking Back — Francis Biddle, Censorship & the “Biddle List”

War threatens all civil rights. Francis Biddle, December 15, 1941

I was reading Sam Walker’s Today in Civil Liberties History (a daily historical calendar — quite good!) when I came upon this entry for today, circa April 14, 1942:

Attorney General Biddle OKs Censoring Father Coughlin’s Social Justice Magazine

“In a letter to Postmaster General Frank Walker on this day, Attorney General Francis Biddle (1886-1968) proposed banning the magazine Social Justice from the mails. Social Justice was the publication of Father Charles Coughlin, a Catholic priest in the Detroit area, who in the late 1930s became a public, ultra-conservative critic of President Franklin D. Roosevelt.”

Unknown“When the U.S. entered World War II, Coughlin became a critic of the war effort, in part because he was anti-Semitic. Coughlin’s criticisms were the reasons for Biddle’s censorship proposal. In the end, the Post Office did bar Social Justice from the mails. It was one of the relatively rare instances of suppression of dissent during World War II . . . .” (See Pittsburgh Post-Gazette, April 15, 1942 story here.)

Biddle, of course, was the one who had been a secretary to Justice Holmes (1911-1912), assistant to the U.S. Attorney (E-Dist., PA), chairman of the NLRB (1934-35), Third Circuit Judge (1939-1940), U.S. Solicitor General (1940), U.S. Attorney General (1941-45), and later a judge on the International Military Tribunal at Nuremberg (1945-1946) (Herbert Wechsler served as his main assistant), among other things. Biddle also wrote a biography of Holmes — Mr. Justice Holmes (1942), among other books.

Francis Biddle

Francis Biddle

One more biographical note: he was a half second cousin four times removed of James Madison.

As recounted in a Wikipedia entry, “[d]uring World War II Biddle used the Espionage Act of 1917 to attempt to shut down ‘vermin publications.’ This included Father Coughlin’s publication entitled Social Justice. Biddle has also been ‘credited’ with the creation of what became known later as the ‘Attorney General’s List of Subversive Organizations.’ In fact, this list was originally known as ‘The Biddle List.'”

“In the Biddle List, eleven front groups originating in the Communist Party of the United States of America (CPUSA) were singled out as being ‘subversive’ and under the control of the Soviet Union. Unlike the later, more infamous Attorney General’s List of Subversive Organizations, which contained both left and right-wing organizations, the Biddle List contained only left-wing organizations as well as civil rights organizations tied to the CPUSA.”

Biddle List (1941): 

Contrast Francis Biddle, Remarks at the Dedication of the Thomas Jefferson Room, Library of Congress, December 15, 1941, on the occasion of the 150th Anniversary of the Bill of Rights. Here is an excerpt from those remarks:

War threatens all civil rights; and although we have fought wars before, and ourpersonal freedoms have survived, there have been periods of gross abuse, when hysteria and hate and fear ran high, and when minorities were unlawfully and cruelly abused. Every man who cares about freedom, about a government by law — ­and all freedom is based on fair administration of the law — must fight for it for the other man with whom he disagrees, for the right of the minority, for the chance for the underprivileged with the same passion of insistence as he claims for his own rights. If we care about democracy, we must care about it as a reality for others as well as for ourselves; yes, for aliens, for Germans, for Italians, for Japanese, for those who are vdth us as well as those who are against us: For the Bill of Rights protects not only American citizensbut all hunlan beings who live on our American soil, under our American flag. The rights of Anglo-Saxons, of Jews, of Catholics, of negroes, of Slavs, Indians — all are alike before the law. And this we must remember and sustain — ­ that is if we really love justice, and really hate the bayonet and the whip and the gun, and the whole Gestapo method as a way of handling human beings.

As far as I can tell, there has been no book-length biography of Francis Biddle, which strikes me as odd. Such a biography is long overdue and Biddle is certainly deserving of one.

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Soft launch of historical website — Calendar of civil liberties

There is a new website: Today in Civil Liberties History, which has five or six events for each day. Each event includes learning materials: books, reports, web sites, Youtube videos, and more. It covers the full range of civil liberties issues: First Amendment, racial justice, reproductive rights, lesbian and gay rights, national security, and more.

The official public launch will be on Constitution Day, Wednesday September 17th, but you can view in now.

For more information about Today in Civil Liberties History, click here: http://samuelwalker.net/wp-content/uploads/2014/07/Coming-This-Fall2.p

And congrats to Professor Sam Walker for what promises to be a welcome addition to our daily calendar experiences.

Meanwhile, here is what happened on this day in August:

AUGUST 28

1955

Emmett Till, 14, Murdered in Mississippi

1963

“I Have a Dream”: King Delivers Historic Speech at March on Washington

1963

John Lewis Speech at March on Washington Censored

1968

“Police Riot” at Democratic Party Convention

1987

Reagan Administration Bars Visas to People with HIV

2011

Martin Luther King, Jr., Memorial Dedicated

 

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Cybersecurity Legislation and the Privacy and Civil Liberties Oversight Board

Along with a lot of other privacy folks, I have a lot of concerns about the cybersecurity legislation moving through Congress.  I had an op-ed in The Hill yesterday going through some of the concerns, notably the problems with the over broad  “information sharing” provisions.

Writing the op-ed, though, prompted me to highlight one positive step that should happen in the course of the cybersecurity debate.  The Privacy and Civil Liberties Oversight Board was designed in large part to address information sharing.  This past Wednesday, the Senate Judiciary Committee had the hearing to consider the bipartisan slate of five nominees.

Here’s the point.  The debate on CISPA and other cybersecurity legislation has highlighted all the information sharing that is going on already and that may be going on in the near future.  The PCLOB is the institution designed to oversee problems with information sharing.  So let’s confirm the nominees and get the PCLOB up and running as soon as possible.

The quality of the nominees is very high.  David Medine, nominated to be Chair, helped develop the FTC’s privacy approach in the 1990’s and has worked on privacy compliance since, so he knows what should be done and what is doable.  Jim Dempsey has been at the Center of Democracy and Technology for over 15 years, and is a world-class expert on government, privacy, and civil liberties.  Pat Wald is the former Chief Judge of the DC Circuit.  Her remarkably distinguished career includes major experience on international human rights issues.  I don’t have experience with the other two nominees, but the hearing exposed no red flags for any of them.

The debates about cybersecurity legislation show the centrality of information sharing to how government will respond to cyber-threats.  So we should have the institution in place to make sure that the information sharing is done in a lawful and sensible way, to be effective and also to protect privacy and civil liberties.