More slimy behavior from the ACLU

For a couple of years I’ve been chewing on the tuchas of the ACLU for abandoning its mission to protect everyone’s civil liberties in favor of supporting only “progressive causes”.  (In that sense they’re behaving just like the Southern Poverty Law Center.) And in the meantime they’ve abandoned their mission of political neutrality. As I wrote in June of last year in response to a NYT article that raised the same point (my words below):

I was always a big fan of the American Civil Liberties Union (ACLU), admiring their single-minded dedication to preserving our civil liberties, most notably those specified by the First Amendment. But they also saved my bacon when I took the government to court for drafting me illegally as a conscientious objector. When I went to they ACLU, they started a class-action suit (I paid nothing) that we won, resulting in the release from service of myself and several thousand other guys.

But about five years ago the ACLU went off the rails, at least in my view. Instead of defending civil liberties and free speech, they began to ponder whether free speech and social justice might be incompatible in some ways, with words actually constituting “violence” that could hurt minorities. The real derailing, resulting in today’s split ACLU, began in August, 2017, when the ACLU won the right for far-right groups to demonstrate in downtown Charlottesville, Virginia instead of outside the center city. That demonstration, of course, led to violence, right-wing marches complete with bigoted slogans, and, eventually, to a white-supremacist protestor driving his car into a crowd, killing Heather Heyer. But I don’t hold the ACLU responsible for the death, though some do.

Although the ACLU was already morphing from a civil rights organization into a social justice organization, the Charlottesville debacle made many members and administrators rethink their mission. And since then the transformation has been more rapid, as described in a New York Times article (click on the screenshot below). It’s not the social-justice mission I object to so much—though some of the ACLU’s stands, like wholeheartedly supporting the right of transgender women, even those medically untreated, to participate in women’s sports, are wrongheaded—but to the fact that there are dozens of organizations already fighting for all forms of social justice, while the ACLU was unique in the singlemindedness of its mission. Now, at least on campus, the Foundation for Individual Rights in Education (FIRE) is taking over its job, but without the same dosh or resources backing the ACLU.

Since then, the ACLU has gone even farther off the rails. The latest is a revelation in The Atlantic that the organization played an unsavory role in the ongoing legal battle between Johnny Depp and his ex-wife Amber Heard. I can’t pretend to know all the tabloid-y details of this marital fracas, and I have no dog in that fight, but one fact is undeniable: the ACLU sided with Heard in order to get a big donation from her, and did so in a bizarre way.  This report from The Atlantic talks about that and about other perfidies of an organization I once admired and even worked for. Click on screenshot to read

All I knew before I read this article (and yes, Bazelon—a criminal defense attorney, law professor, feminist, and Democrat—and The Atlantic are reliable sources) is that the ACLU helped Amber Heard write an op-ed in the Washington Post that indirectly accused Depp of spousal abuse. But now the plot thickens. The ACLU not only wrote the whole article for her, but pitched it to the Post and, in return, got a promise from Heard of a $3.5 million donation. From Bazelon:

The heart of Depp’s claim is that Heard ruined his acting career when she published a 2018 op-ed in The Washington Post describing herself as “a public figure representing domestic abuse”—a thinly veiled reference to much-publicized accusations of assault she made against Depp in court filings toward the end of their short-lived marriage. But Heard hadn’t pitched the idea to the Post—the ACLU had. Terence Dougherty, the organization’s general counsel, testified via video deposition that the ACLU had spearheaded the effort and served as Heard’s ghostwriter in exchange for her promise to donate $3.5 million to the organization. The promised donation also bought Heard the title of ACLU “ambassador on women’s rights with a focus on gender-based violence.” When Heard failed to pay up, Dougherty said, the ACLU collected $100,000 from Depp himself, and another $500,000 from a fund connected to Elon Musk, whom Heard dated after the divorce.

The ACLU’s bestowal of an ambassadorship and scribe-for-hire services upon a scandal-plagued actor willing to pay seven figures to transform herself into a victims’ advocate and advance her acting career—Heard pushed for a publication date that coincided with the release of her film Aquaman—is part of the group’s continuing decline. Once a bastion of free speech and high-minded ideals, the ACLU has become in many respects a caricature of its former self.

I have to say that the ACLU’s behavior here is shameful. Bazelon also mentions the secret report prepared by the ACLU that it was going to shift its focus from defending everyone to deemphasizing its defense of clients with “antiprogresive” views, a shift I wrote about in 2018.  But since then, writes Bazelon, the ACLU is abandoning its stand of political neutrality:

I don’t look to the ACLU to affirm my beliefs or those of my allies. On the contrary, I look to the ACLU to defend everyone, including my ideological enemies. To do that work, it cannot be beholden to any political party or ideology. Yet in 2018, the ACLU spent $800,000 on a campaign ad for Stacey Abrams during her run for governor in Georgia and $1 million in an attack-ad campaign against Brett Kavanaugh during his Supreme Court confirmation hearings. When the Trump administration proposed in 2018 a new regulatory scheme for schools to follow in Title IX campus-sexual-assault cases that offered more protections to students defending themselves against these allegations, the ACLU responded in an angry tweet thread: “It promotes an unfair process, inappropriately favoring the accused.” (The following year, the ACLU declared its support for new Title IX regulations’ “fair process requirements for live hearings, cross-examination, [and] access to all the evidence,” but it has never taken down the tweets or walked them back.)

(Making Title IX procedures more fair was, in my view, one of the very few good things accomplished by the Trump administration, though Betsy DeVos was probably responsible.)

It seems almost impossible these days for any organization, in the interest of defending civil liberties (which include freedom of speech) to prevent a slide into wokeism. But we need those organizations, for if we abandon defending the civil liberties of those we dislike, we have abandoned civil liberties completely.

The ACLU is a lost cause. Were I still a member, I’d cancel my membership, but those days are long gone.

The ACLU now seems largely unable or unwilling to uphold its core values. To be fair, the organization still goes to bat for some causes that are associated with conservatives and free-speech absolutists, including the right to bear arms, of anti-Semites to protest, and of parochial schools to discriminate in hiring based on religion. And yet since Trump’s election, according to The New York Times, the organization’s annual budget has grown threefold and its lawyer staff has doubled—but only four of its attorneys specialize in free-speech issues, a number that has not changed in a decade. Instead, the ACLU has expanded its services—and filled its coffers—as it takes partisan stances or embraces dubious causes. Meanwhile, when it comes to the red-hot culture-war issues squarely within its wheelhouse, such as the right to free, albeit hateful, speech on campus, the ACLU has stayed largely on the sidelines.

Progressive causes are near and dear to my heart. I am a feminist and staunch Democrat. As a federal public defender turned law professor, I have spent my career trying to make change in a criminal legal system that is riven with racism and fundamentally unfair to those without status and financial resources. Yet, as someone who understands firsthand that the fundamental rights to free speech and due process exist only as long as competent lawyers are willing to vigorously defend extreme positions and people, I view the ACLU’s hard-left turn with alarm. It smacks of intolerance and choosing sides, precisely what a civil-liberties organization designed to defend the Bill of Rights is meant to oppose.

I used to be a proud card-carrying member of the ACLU. Today, when its fundraising mailers and pleas to reenroll arrive in my mailbox, I toss them in the recycling.

Thanks Ceiling Cat I don’t get them any more.