Dispatches from the Creation Wars

Volokh on the ACLU and Speech Codes

A couple days ago, Eugene Volokh had a post about a rather disturbing new policy proposed at Boise State University concerning their student senate, a proposal he was alerted to by Clayton Cramer. The proposal, made in the aftermath of a controversy on campus over some fairly innocuous statements by the head of the College Republicans that some groups objected to, was that no one could serve in the student senate if they were “actively involved in organizations or student newspapers that create an atmosphere where students do not feel represented.”

The whole affair was a ridiculous example of attempts to censor conservative speech on campus and Volokh rightly saw it for what it was. But then one of his commenters asked the typical question “where’s the ACLU?”, as though the fact that they weren’t involved with the case proves they’re on the wrong side. Volokh then wrote a follow up post disputing that silly position and doing so very effectively.

Well, let’s keep this in perspective. First, the ACLU’s litigation arm can’t do anything about this — we’re talking here about a proposal to enact a student government rule. Once it’s enacted, it might be challengeable, though perhaps even then the challenge would have to wait until the rule is enforced. But when it’s just being talked about, neither the ACLU nor anyone else can sue.

Second, recall that I only got wind of this controversy at Boise State because Clayton Cramer e-mailed me about it. It’s at least within the realm of possibility, it seems to me, that Cramer didn’t e-mail the ACLU, that the ACLU’s staff doesn’t read Cramer’s blog, and that the ACLU hadn’t heard of this through other sources. (My NEXIS search for (sawmiller or “feel represented”) and (bsu or boise state) revealed no newspaper references.) Even if the ACLU had heard about this, it might have legitimately concluded that it has other more pressing matters on its plate — but for now, we don’t even know that the ACLU people had even heard of this matter.

Third, there’s certainly no evidence that the ACLU is one of the “ones attacking this man,” which is what the comment seemed to me to imply (though I suppose it’s possible that the “They” refers back only to “liberals” and not both to “liberals” and the “ACLU”). And to the extent that the assertion is just a loose way of saying that the ACLU supports campus speech code, that assertion is mistaken. As I noted before, the ACLU has generally opposed campus speech code. In Iota Xi v. GMU, the first federal court of appeals case striking down college speech codes (in 1993), the ACLU of Virginia filed an amicus brief in favor of the plaintiffs, who were punished for putting on a skit in blackface. According to a Nat Hentoff column — and Hentoff has long been a vocal opponent of speech codes — the two earlier district court cases that ultimately struck down campus speech codes, in Michigan and in Wisconsin, were filed by local ACLU affiliates.

In Newsom v. Albemarle County School Bd., a 2003 court of appeals case, the ACLU backed a high school student’s right to wear an NRA T-shirt (surely a “non-liberal voice[]”). For another recent example of an ACLU chapter’s interceding on behalf of allegedly racially offensive speakers, see here. And the national ACLU’s 1994 position statement on the subject condemns campus speech codes; I believe the national ACLU’s anti-speech-code policy was adopted in 1991 (though there was a good deal of dissent within the ACLU about it, especially, I’m told, in the California chapters).

I’ve criticized the ACLU in the past on various matters, and I’m sure I will again; I think they’re mistaken on many matters. But unfounded criticism is both itself wrong, and undermines the well-founded kind.

Bingo. And that’s what the STACLU crowd has never understood and never will. They’re so emotionally attached to their simpleminded demonization of the ACLU that they just fire blindly at anything the ACLU says, or in this case even what they don’t say. And it destroys their credibility on those issues where there is genuine criticism to be made. When I criticize the ACLU’s position on something, and I have many times, that criticism is and should be taken seriously. Not true of the STACLU bombthrowers.