Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Wendy Kaminer, a former national board member of the ACLU who has been a critic of the organization for not being sufficiently vigilant in defending the free speech rights of the religious right, has an article in the Atlantic making that same argument again.
And let me make clear up front that I don't necessarily think she's wrong in general. I think sometimes the ACLU does let its political biases take precedence over supporting free speech universally, though not nearly as often as its critics - particularly those who are part of the religious right, as Kaminer is not - like to think. Kaminer is more absolutist about free speech than the ACLU; so am I.
She makes this point, and again I do not disagree with it entirely. I think there is a core of truth to the claim:
Of course the gay rights movement (like the feminist movement) includes internal disputes about the wisdom or justice of infringing on First Amendment rights. In Maine, for example, leaders of the campaign for equal marriage publicly opposed the complaint against Donald Mendell. But, with the notable exception of the non-partisan Foundation for Individual Rights in Education, which defends the rights of all students, regardless of their views, advocacy groups tend to focus on defending the liberties of people with whom they agree.Not surprisingly, the right wing, anti-gay Alliance Defense Fund is perhaps the primary defender of First Amendment rights in cases involving the anti-gay speech and belief of conservative Christians. ADF receives (and perhaps desires) little assistance from the ACLU, an increasingly unreliable defender of speech and belief that conflict with its gay rights agenda: while the ACLU aggressively defended the rights of students to wear t-shirts to school celebrating gay rights, for example, it stayed out of an important federal case, Harper v Poway, involving a Christian student punished for wearing an anti-gay t-shirt, even when the case reached the Supreme Court.
There is much that is true. As someone who has been a vigorous advocate both of gay rights and of the free speech rights of those who oppose my position, I know full well that there is an unfortunate tendency among some who are on my side on the gay rights issue to reject the notion that those on the other side have the same right to express their views that we have to express ours.
Some of those people are readers of this blog who have loudly disagreed with me when I've taken a stand for protecting the rights of people like Stephen Boissoin to spout his anti-gay nonsense, and have just as loudly advocated for laws that restrict "hate speech," something that I will oppose until I've drawn my last breath no matter how much I disagree with such speech.
But I think she's wrong on the ACLU's response to Harper v Poway, the case involving a student who wore a t-shirt to school that said "homosexuality is shameful" on the Day of Silence and was kicked out for it. When that case was in the appeals court originally, the ACLU did come out on the side of free speech and indicated that they were in the process of filing a brief on behalf of the plaintiff.
Incidentally, I tend to agree with her about the Alliance Defense Fund as well. I nearly always disagree with their positions on Establishment Clause cases, but when it comes to Free Exercise and Free Speech clause cases, I think they're often on the right side and doing good work to protect religious freedom and freedom of speech.
But I will mention one clear difference here between the ADF and the ACLU: While the ACLU may be criticized for not always taking the side of the Christian in a free speech dispute, the ADF has never, to my knowledge, defended the right of anyone other than a Christian in court. The ACLU, though they are not perfect in this area, do have a long tradition of defending the rights of all religious faiths, while the ADF only defends the rights of Christians.
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Regarding the last point about the difference between the ADF and the ACLU, it rises from one simple thing: The ADF really is just interested in pushing for Christians to have more freedom which is often very close to "more control." Fundamentally, they aren't interested in rights for all.
Posted by: Joshua Zelinsky | March 19, 2010 12:10 PM
I think it should be noted that while every violation of a person's first amendment rights is wrong, the ACLU has only limited resources and i don't think any rational person would claim that the 'gay agenda' doesn't need the help more than the religious right agenda. As you noted, the religious right has their own powerful advocates who argue for their positions exclusively.
Posted by: Amar | March 19, 2010 12:16 PM
Could the ACLU's lack of support for some of the Christian free-speech cases stem from limited resources and the fact that there are other well funded organizations (like Thomas Moore Law Center, ACLJ, and ADF) that will ensure legal representation? Also, could the Christians whose free speech rights are being infringed upon refuse to have the ACLU represent them (in these cases, could the ACLU still file an amicus brief?)?
Do other majority religions (Judaism (1.7%), Buddhism (.7%), Islam (.6%), and Hindu (.4%)) in the US have similar problems with equal representation by the ACLU? I realize that given the small percentages of each that there will probably be a much smaller number of free speech cases than Christian religious free speech cases.
Posted by: Mike | March 19, 2010 12:35 PM
Personally I think the ACLU is in a difficult situation when it comes to these cases. On the one hand is the universal free speech argument (to which I adhere), that they should defend the speech of all. I believe they try to do so within limitations of, as Mike has pointed out, funding, etc. On the other hand there is two-fold pressure for them not to take these cases. First, within the organization, there are likely those who agree with those who support "hate speech" laws, etc., namely they (consciously or subconsciously) support the ACLU as a "liberal" organization. Second, they run the risk of losing funding from donors who also see the ACLU as a "liberal" organization.
[note: not defending, just making observations that may explain]
Posted by: dogmeatib | March 19, 2010 12:44 PM
the ACLU is a democratic organization, in that it acts both according to its charter and according to the pressures of its membership, which is free and open to all. but, according to its principles, there are few discriminations to be made when it comes to defending civil liberties, so it will defend stances which are patently offensive to certain (even very large) segments of the population.
while some of these offended segments may be nonetheless tolerant and understanding of what they perceive as the ACLU doing what it has to do, conservative or fundamentalist Christians, or other authoritarians, are definitely not known for being tolerant or understanding. so, when it comes time for them to support an organization to defend their own civil liberties, they most likely will not look to the ACLU, which they see as a corrupt and evil organization.
so, the ACLU's relative lack of defense of Christian/authoritarian speech is a bottom-up selection bias, which imho can't really be blamed on the organization or its membership. it all points to what Zelinsky mentioned - these groups aren't really interested in free expression, but in exerting ideological control over local communities. they see the ACLU as a barrier to this, and so aren't likely to cooperate with it except under unusual circumstances.
Posted by: andrew | March 19, 2010 1:01 PM
The first amendment is awesome. It's one of the things I cherish most about our constitution and for which I would fight to defend. Why do so many Americans think it was written for them alone and not their fellow countrymen? Why is it not taught that while it is a right, free speech is not without consequences? Do parents not recite "sticks and stones" anymore? We are one thin-skinned nation.
Posted by: Pareidolius | March 19, 2010 1:08 PM
Two questions:
1. I don't know all the facts of Harper v. Poway, so I am relying on what is in this post, but it seems to me to be a weak case. Messages on clothing are clearly an area where some First Amendment rights don't make it through the school door - you can't wear a "Fuck draft" or "Fuck Obama" or fuck anything shirt in most (probably any) schools, and no court would overrule the school board on that despite the SCOTUS precedent about wearing such a shirt in a mall.
I bet you also can't wear a T-shirt saying "Blackness is inferior" to most schools. I hope you can't, as much as I support every idiot's right to wear such a shirt in the street.
If this is correct so far, what then is the difference between "blackness is inferior" and "homosexuality is shameful"?
2. Why would ACLU help ADF? It would make no sense. Money is fungible, as are most other resources, so every time ACLU helped ADF with a free speech case, they would also be helping them with the rest of their activities, some of which are obviously against ACLU's core values.
Posted by: bullfighter | March 19, 2010 1:25 PM
Wouldn't that depend on the nature of the help? would filing an amicus brief in support of the ADF actually reduce how much the ADF had to spend on that case thus freeing up money for other activities?
Posted by: Matty | March 19, 2010 1:45 PM
bullfighter wrote:
I'm not sure where you're getting this from but it's mostly wrong. Yes, the courts would uphold a ban on obscene messages and profanity, but only because the courts consider such prohibitions to be "viewpoint neutral." A t-shirt with a political message that addresses a matter of public debate has an entirely different standard to meet.
Indeed, the key precedent in this area, Tinker v Des Moines, deals with exactly that issue (only it involved symbolic messages on clothing -- a black armband with a peace symbol -- rather than a verbal message). That ruling said that the school could not prohibit such expression unless they could show that it would cause an imminent disruption of the school's working order and educational mission.
It's possible that the courts might come up with some means of distinguishing between the two, but I don't think they should. I think both should be allowed. I think both messages are vile, but they actually provide a terrific teaching moment about the first amendment and the difference between despising someone's message and having the right to criticize it, on the one hand, and censoring it on the other hand.
I also think that any kid who wore such a t-shirt would get all the punishment required from societal disapproval -- and I hope we get to the day soon when the same is true of t-shirts condemning homosexuals.
Posted by: Ed Brayton | March 19, 2010 1:47 PM
To make it even simpler, social conservatives aren't about what rights people should have; they're about which people should have rights.
Posted by: DaveL | March 19, 2010 1:48 PM
The ACLU primarily steps in on one of two occasions:
1: When the issue is so paramount to the civil liberties of the country that they feel that every soldier is needed in the trenches, or;
2: When the clients are simply unable to mount a legal case of their own due to limited resources.
Between Christianity's status as the dominant faith in this country, and organizations like the ADF and Thomas Moore, there's rarely a case involving a Christian's expression of faith to require the ACLU to commit resources. Very often, if reporters contact the local ACLU about such a case, they'll issue a quick statement declaring their support of the civil liberties under atack, regardless of the positions being expressed.
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As far as the specific case in question, I believe the current status of the law is that a school has to be able to show that the expression would disrupt the educational environment. (Note that this was the defense of the cowardly school board that cancelled a prom to keep a lesbian from attending in a tux, with her girlfriend; the proper response to that, of course, is, "Hubba-whu? When do you hold classes at the prom?")
Arguably, the word "shameful", as a pejorative, could be viewed as disruptive, as it's a direct verbal attack against any gay students who read it. A shirt that read, "We should all live by God's law", or quoted some Christian philosopher to the same intent, OTOH, would probably not be grounds for dismissing the student.
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Finally, on the issue of the ACLU and Christian rights in general, I usually go here when the subject comes up in a forum. If I have the time, I'll go through the current month or two's cases and do a count of how often the ACLU is defending a Christian church or preacher, in comparison with non-Christians. It's usually pretty damned effective.
Posted by: Freemage | March 19, 2010 2:19 PM
Andrew, although you credit your point to what I said earlier, I don't think that's exactly what is going on here. I think that there are a variety of complicating factors. First, the reputation of the ACLU as being anti-Christian does mean that even many well-meaning Christians won't turn to it even when it would be likely to help. Second, although the ACLU does help defend many Christians have had their rights violated, Ed is likely correct that there is some degree of bias that makes the ACLU less likely to defend them than others. The argument that some have made in this thread that they have their own groups to do their work is only somewhat satisfying. Regarding the issue of cooperation: I'm not aware of any evidence that the ACLU has had any trouble working with the ADF or TMLC when they end up on the same side. (I mean aside from the general perception that TMLC is incompetent but that's not strongly connected).
Posted by: Joshua Zelinsky | March 19, 2010 2:58 PM
I think several people have all ready said this but here’s my take on what legal cases the ACLU and ADF take on.
It is my understanding that the ACLU takes on cases where they are asked or invited to work on the case by the plaintiff, or where the case is sufficiently public to be brought to their attention and the plaintiff does not all ready have sufficient legal representation. A case that the ADF is all ready working might not draw ACLU support simply because it does not need that support. In contrast, a case that the ACLU is all ready working will not draw ADF support because it opposes the ADF point of view.
This is in my opinion a very important distinction between these two organizations.
Posted by: DGKnipfer | March 19, 2010 4:42 PM
@Freemage
Your link isn't working. I'm very curious.
I don't think it's really fair to compare the ACLU and ADF directly. The ADF responds mainly to requests, often cases the ACLU won't take. Browsing through the ACLU website, they have a list of key issues.
By the very nature of what the ACLU stands for, Christian FOS fails to meet their criteria.Think about the past ACLU's famous cases: Scopes Monkey Trial, NAMBLA,KKK (anti-semitic, anti-Catholic), removing crosses from military grave yards, banning Nativity scenes, Roe v. Wade, etc. From their website: "Why we do what We Do: WHY WE DO WHAT WE DO:
The ACLU is frequently asked to explain its defense of certain people or groups—particularly controversial and unpopular entities such as the American Nazis, the Ku Klux Klan, and the Nation of Islam. We do not defend them because we agree with them; rather, we defend their right to free expression and free assembly. Historically, the people whose opinions are the most controversial or extreme are the people whose rights are most often threatened. Once the government has the power to violate one person's rights, it can use that power against everyone. We work to stop the erosion of civil liberties before it's too late."
So isn't it really a non-sequitur to say that the ADL is only left with the cases violating the mainstream freedom of religious expression violations, which by default are Christian? The ADL's initial approach is correspondence with the oppressing entity which almost always successfully resolves the issue without ever going all the way to court. The first letter/email is done in a friendly tone offering suggestions to resolve the dispute. So the very functions of the two entities are not comparable.
I guess it is expecting too much of the atheist bloggers on this particular site to resist slamming a Christian advocacy organization. The cognitive dissidence was too overwhelming for Mr. Brayton when he found himself in the awkward position of admitting that Christians are legitimately oppressed and are entitled to equal protection every bit as much as secular citizens. It has become quite apparent that the term "free-thinker" is an oxymoron. Stepping outside the echo chamber of the new atheists is very dicey, indeed. I do give him credit for having the guts to be intellectually honest, though.
Posted by: Smitty | March 19, 2010 4:43 PM
Try this one: http://www.aclu.org/aclu-defense-religious-practice-and-expression
(Just cut-and-paste.)
Note that the ACLU also usually tries the "send a letter" method first, only filing suit if no reasonable accommodation can be worked out.
Now look at the cases in the above link. Of the first ten, one was defending a Muslim, one was on behalf of Jehovah's Witnesses, and ~8~ were on behalf of one flavor of Christianity or another, ranging from Quakers to Pentacostals to Baptists. Going a bit further on the list will get you a lot more traditional Christians, one Catholic vs. Baptist lawsuit (they were on the side of the Catholic prisoner), and another Muslim. By the time you get to twenty cases, you've got 4 Muslims (20%), 1 Jehovah's Witness (5%), and all the others at least including some sort of Christian (FREX, one case had Christian, Jewish and Muslim firefighters defending their religiously-mandated beards; actually, a surprising number of cases seem to involve facial hair).
And finally, most of the posters weren't slamming the ADF; merely commenting that since they also provide a highly focused amount of legal aid for the organizations in their rubrik, there's less need for the ACLU to step in and provide legal assistance to those same groups.
(One of the other cases in that link was pretty interesting--I might have to revise my opinion of where the ACLU would stand on the "Homosexuality is shameful" t-shirt case, considering that the ACLU defended the "Islam is of the Devil" t-shirts....)
Posted by: Freemage | March 19, 2010 5:23 PM
dogmeatib @ 4: "namely they (consciously or subconsciously) support the ACLU as a "liberal" organization. Second, they run the risk of losing funding from donors who also see the ACLU as a "liberal" organization."
This is exactly why the ACLU should take cases not from a "liberal" (i.e., Progressive) point-of-view. Right now their overall image is that of a somewhat-consistent civil libertarianism and as a result people take them seriously. If they try to restrict themselves to being Progressive lapdogs, they'll rightly lose all credibility and they'll become a joke just like the ADF.
Posted by: Miko | March 19, 2010 5:54 PM
I believe strongly that the Poway case was badly handled and badly decided at several levels, and that the ACLU blew it by not making more of an effort to be consistent in application of the broad principles.
First, Harper was not in clear violation of any of the normal precedents that schools use to censor speech or t-shirts. The shirt was clearly political core speech and should have been judged solely on the Tinker standard (cause a disruption.) It wasn't the least bit obscene. In fact, the first day Harper wore the shirt it went unnoticed, probably because the logos and legends on the shirt were fairly cryptic. So he wrote things on a piece of tape and put the tape on the shirt. Even that speech was quite mild by many standards--"Homosexuality is shameful," and the bit about we have angered God.
The salient point was that he did this on the Day of Silence. Now in the traditional way of considering these disputes, a majority infringes the minority (or individual's) rights to full expression, however distressing or shocking. That is precisely what happened to Harper. The usual situation of anti-gay bias was clearly and obviously reversed; he was alone with his views and the school was quite aggressively supportive of the various symbolic acts of speech by students opposed to anti-gay bigotry.
In a situation perfectly tuned to the ACLU's usual approach, the kid was penalized based primarily on the school district's speech code, which outlawed speech that made other people uncomfortable.
Such codes are not constitutional. Sometimes they're brave, but over time they become weapons to eliminate dissent as surely as any other censorship.
I'm not even going to insert the standard disclaimer here that I support gay rights and do not approve of Harper's actions. I do approve of them, in that they were a specific assertion of an opinion aimed at the speech code (Harper's sister did precisely the same thing a year later). I approve of that completely.
Lawsuits in the case turned on whether the speech code was binding, not on the First Amendment. This is probably good legal tactics but it is patently dishonest of your essential values are Bill-of-Rights-level pure freedom arguments. For the ACLU to abstain or duck behind the technicality of the school district's (winning) strategy degrades the ACLU's high-ground history.
The case serves as a lovely example of what happens when a minority achieves majority status. They act like the majority. Civil liberties exist to protect the minority. The ACLU exists to protect civil liberties. They sat that one out.
I point this out to them every year when I send my check.
Ice9
Posted by: ice9 | March 19, 2010 6:20 PM
This isn't a criticism of the ACLU, it's a defense of the adversarial system.
Posted by: MPL | March 19, 2010 11:37 PM
To add to Amar's point:
"As you noted, the religious right has their own powerful advocates who argue for their positions exclusively."
How many openly gay/atheist legislators, officials in government and public figures v openly "christian" (an egregious misnomer) persons in the same categories.
Posted by: democommie | March 20, 2010 8:52 AM
Why is there the expectation that a private organization like the ACLU defend people who are within a majority group and have numerous supporters backing them already?
Isn't one of the objectives of the ACLU to defend those who lack the ability to defend themselves and do not have others aiding in their defense?
Posted by: Owen | March 20, 2010 10:22 AM
"I know full well that there is an unfortunate tendency among some who are on my side on [freethought] issues to reject the notion that those on the other side have the same right to express their views that we have to express ours."
There. Now it applies to the majority of your commenters.
Posted by: 10,000li | March 20, 2010 1:05 PM
Oh, poor, poor pitiful 10kli! The big bad bloggers are picking on him.
Posted by: democommie | March 20, 2010 5:50 PM
Ed Brayton writes:
"But I will mention one clear difference here between the ADF and the ACLU: While the ACLU may be criticized for not always taking the side of the Christian in a free speech dispute, the ADF has never, to my knowledge, defended the right of anyone other than a Christian in court. The ACLU, though they are not perfect in this area, do have a long tradition of defending the rights of all religious faiths, while the ADF only defends the rights of Christians."
I agree with this but would add that the mission of the ADF entails defending the legal right to practice Christianity while the mission of the ACLU is much broader. Organizations should be faithful to their declared purposes or they should amend them. Who would blame an organization of scientists for defending one of their own but not getting involved in a legal dispute involving a business zoning controversy? Who would criticize a PBA organization for defending a cop but not a sanitation worker? Restricted goals are reasonable.
Posted by: Paul Williamson | March 20, 2010 7:16 PM
"...the ADF entails defending the legal right to Christianity..."
I don't think that this is 100% accurate, at least when the Christians at issue are advocating for a policy issue that's at odds with non-conservative thinking; for example, if Christians were protesting peacefully in front of an Planned Parenthood clinic with a "Jesus hates abortion" message and were arrested for doing so, the ADF would almost certainly defend them in court with First Amendment claims. Let's say, however, that there were protesting peacefully in front of a nuclear power plant with a "Jesus hates nukes" message and were arrested, I highly doubt that the ADF would be anywhere to be seen (there is a reason why Kaminer wrote that the ADF "is the primary defender of First Amendment rights in cases involving...the beliefs of conservative Christians" and not "the beliefs of Christians" in general).
Posted by: daniel rotter | March 20, 2010 11:19 PM
Er, Freemage? Jehovah's Witnesses are Christian, so nine of those ten would be defending Christianity of various flavors.
ice9, I'm not sure it's totally correct to say that the student was in the minority; at his school, he was outnumbered, but the general culture is still more-or-less on his side and against the LGBT students.
Posted by: Fangirl | March 21, 2010 3:24 AM
Fangirl @ 25: Personally, I agree with you on that. But there's a fair number of more mainstream Christians who reject the "Christianity" of Mormons, Jehovah's Witnesses and a few other sects. So I took the most conservative definition of "Christian", and still wound up with 80% in the most recent 10 cases, and 75% in the most recent 20.
Posted by: Freemage | March 22, 2010 1:39 PM