One of the standard arguments we hear from the Hate the ACLU crowd is that the ACLU is that they are "getting rich on taxpayer money" because, in some cases, Federal law allows plaintiffs who sue government agencies successfully to recover their legal fees. It's an argument based primarily on ignorance, of course, because most cases in which the ACLU represents the plaintiffs, the case is handled not by ACLU attorneys but by law firms who work pro bono. In the Dover, PA "intelligent design" case, for example, the ACLU is representing the plaintiffs but the actual legal work is being handled by the prominent Philadelphia firm of Pepper and Hamilton, and they are doing it pro bono. Now, if they win that case they can make a motion to have the defendents, in this case the Dover school board, pay their legal costs and they might get it. But if they lose the case, or lose the motion to be awarded costs, this law firm will have to eat untold billable hours for an entire staff of attorneys in a major Federal lawsuit that will likely amount to well over a million dollars. Either way, the ACLU doesn't get any money from it. But why let facts stand in the way of perfectly good demagoguery?
So our pals at StoptheACLU.com published a typical example of this argument the other day with a post about a group called Christians Reviving America's Values asking Congress to investigate the ACLU because the ACLU has filed suit against New York for their new policy of random searches on NY subways. Their leader, Donald Swarthout, delivers the typically hysterical screed:
If the ACLU wins this battle in court they will receive a very large financial boost as they have from similar 'victories' in San Diego, Alabama and Virginia. When the ACLU wins their attorneys are paid hundreds of thousands of dollars by tax-payers.The never ceasing flow of litigation against cities, states, and the federal government is nothing more than fund-raising stunts. Many of the ACLU's victories come not because their complaint is just, but because the municipality budget is inadequate to match the abusive onslaught.
In New York, apparently the ACLU believes these searches are unconstitutional because they are random. Although the ACLU has also called metal detectors in airports an invasion of privacy. There is no pleasing the ACLU, because improving society or protecting the rights of American citizens is no longer its goal.
Now the ACLU is coming against the Constitutional duty of the United States government which requires the protection of citizens. What is in question here is the definition of freedom. Freedom comes with responsibility. The ACLU has become an anti-Christian, pro-terrorist, entity whose only goal is to get the headlines to keep donations rolling in.
The ACLU's abuse of the legal system is criminal. For that reason Christians Reviving America's Values is drafting a letter asking the US Congress to investigate the ACLU for widespread use of frivolous lawsuits.
Eugene Volokh, himself a relatively conservative law professor and hardly a big fan of the ACLU, has written a thorough reply to this silliness. He writes:
By filing lawsuits, the ACLU is exercising its (and its clients') legal rights and its (and its clients') constitutional rights: The Petition Clause, which protects the right to petition courts for redress of what one perceives as grievances. One may disagree with them. One may try to change the legal doctrines under which they're suing (by Congressional action, by persuading the courts to change the constitutional rules, or for that matter by constitutional amendment) to keep the ACLU from willing. One may call for changes to statutes that give prevailing plaintiffs in some civil rights actions the right to recover attorneys' fees, though I'm skeptical about that. But there's nothing remotely "criminal" about the ACLU's actions.Filing an outright frivolous complaint -- which is to say one that is not "warranted by existing law or by a nonfrivolous [i.e., legally plausible] argument for the extension, modification, or reversal of existing law or the establishment of new law" -- is punishable. One can already get sanctions for the filing of such frivolous complaints. But I know of no systematic pattern of the ACLU's filing such frivolous complaints.
In fact, my sense is that most of the criticism that the ACLU faces comes because their arguments are too successful -- not only nonfrivolous, but actually ones that win in court. If the ACLU only filed complaints that were such clear losers to be frivolous, they wouldn't much bother people: At most, they'd waste some government lawyers' time, but since government entities tend to have lawyers on salary (and generally not very high salary), they wouldn't even waste much government money. In those frivolous cases, the government would fight the ACLU, win (by definition, since if the government lost, the case wouldn't be frivolous), and even get sanctions against the ACLU.
But in fact the ACLU often wins, and even when it doesn't, its arguments are generally quite plausible. For instance, the claim that random searches of people in subways are unconstitutional is an eminently plausible Fourth Amendment claim, perhaps even a winning one. Searches that aren't based on any individualized suspicion are usually unconstitutional; even some conservative Justices have said so. (See, e.g., City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (Thomas, J., dissenting) ("I rather doubt that the Framers of the Fourth Amendment would have considered 'reasonable' a program of indiscriminate stops of individuals not suspected of wrongdoing."); Minnesota v. Dickerson, 508 U.S. 366 (1993) (Scalia, J., concurring) (expressing "doubt" as to whether even suspicion-based searches for weapons are constitutional, unless the suspicion rises to the relatively high level of "probable cause": "I frankly doubt, moreover, whether the fiercely proud men who adopted our Fourth Amendment would have allowed themselves to be subjected, on mere suspicion of being armed and dangerous, to such indignity").
There are some exceptions, including one for airport searches. Perhaps courts should extend this exception to subway searches, especially aimed at finding bombs. But given the current law, the ACLU's argument is eminently credible...
But stop calling them "criminal" for exercising their constitutional rights. Stop calling their lawsuits "frivolous" when the lawsuits bother you precisely because they may well prevail. Stop calling them "pro-terrorist" when there's absolutely no reason to think that they indeed favor terrorism, and lots of reason to think that they favor (whether soundly or misguidedly) legal rules -- such as limits on government power to search -- that unfortunately sometimes protect terrorists while at the same time protecting law-abiding citizens. (It's far from clear to me that random searches are going to do much good at stopping suicide bombers, or that bans on random searches will help terrorists; but I acknowledge that some constitutional rules that the ACLU defends do at times protect terrorists as well as protecting law-abiding citizens.)
Well said, Professor Volokh. He also points out in another post just how much dishonest nonsense there is about the ACLU. One commenter in reply to the above post wrote that the ACLU had "stood silent through decades of speech codes and 'verbal harassment' regulations on American campuses, all aimed toward non-liberal voices." But this is simply nonsense. In fact, the ACLU filed suits in two Federal court cases that struck down college hate speech codes, one involving the University of Michigan and the other the University of Wisconsin, and they also filed briefs on behalf of the plaintiffs in the first appeals court case to strike down a college hate speech code, that one involving George Mason University. And the ACLU's official position condemns hate speech codes.
And best of all, here is the sum total of StoptheACLU's response to Volokh's detailed, factual and well thought out reply:
Mr. Eugene Volokh of the highly traffic (sic) site the Volokh Conspiracy very much disagrees with Stop The ACLU On This Post. Whoopdie Doo!
Yeah, that's the way to get people to take your views seriously. It really does seem as though the ignorance and dishonesty of the Hate the ACLU crowd has no bottom to it.
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I don't always agree with E. Volokh on a number of issues, but his comment posted here is entirely correct. Over the last few decades the ACLU has defended the right of people to engage in their 1st amendment rights, even when the people were anathema. Just remember their defense of the American Nazis to march in Skokie IL. It cost them (the ACLU) big time. But it was a brave thing to do, and it was the correct thing to do.
I'm not entirely sure of the structure of the ACLU, but, by inference I believe that most of the actual representation is undertaken by law firms on a pro-bono basis, after the various boards of the ACLU have decided to take a case. Of course, they can't decide to take the case until a prospective plaintiff has brought the case to them. They don't file a case on their own motion: they need to have a plaintiff, because they can't. The "case or controversy" limitation of US Constitution Art. III would prevent that (no advisory opinions from the federal judiciary).
raj-
Sometimes the ACLU actively solicits a plaintiff in the case of a law they want challenged. This is true as far back as the Scopes trial, where they actually took out newspaper ads seeking a teacher who was willing to get arrested so they could challenge the Tennessee law and get it overturned. But yes, most of the legal work is done by attorneys who work pro bono, mostly from large law firms who can afford to absorb the cost. Every major law firm does a certain amount of pro bono work, for several reasons. It's a good way to give your younger associates a chance to show what they can do, it looks good to the community and gets positive publicity, and I assume that they must be able to write off at least some of the expense (though I may be wrong about that). But there is still a real cost involved.
For a major Federal lawsuit like the Dover case, which may very well end up at the Supreme Court, a firm is committing potentially millions of dollars in free legal work, tying up multiple attorneys and who knows how many support staff for 2 or 3 years. For a case like that, only a really big and well-established law firm can afford to do it. If they win the case, as I said, there is a chance that they'll be awarded some legal fees in the case, but it's not automatic even if they win. And if they lose, they get nothing at all. So it is a real risk. But either way, the ACLU doesn't get any money from representing clients in a case like that except, perhaps, some small portion of the legal fees for whatever direct role their attorneys played in the event that they win.
As far as Volokh goes, I don't always agree with him either, but I am always impressed by how fair minded and intellectually honest he is. He makes a real effort to be intellectually consistent, even when doing so compromises his position to some degree or involves correcting someone who is otherwise an ally in some dispute. That's really the hallmark of a good scholar, and it's on display in this situation where he says hey, I'm not a big fan of the ACLU either, but this attack is reprehensible and based on a false premise.
Ed, I apologize that I was incomplete. More than a few--for example--religious conservatives have criticized the ACLU for not representing the clients who are represented by ACLJ attorneys (they are the Pat Robertson operation).
But the ACLU don't have total control over their clients. They may have been willing to obtain represention for the parties involved in the cases represented by the ACLJ attorneys, but we will never know.
raj wrote:
Oh, definitely true. And in fact, there are many cases where the ACLU has filed briefs on behalf of the clients of the ACLJ. The ACLJ folks never like to talk about that, and sometimes they even go to some length to conceal it as in the Lamb's Chapel case.
Ed, exactly true. The ACLU can only represent litigants that seek them out. That does not mean that the ACLU will not file briefs in support of litigants that are also supported by operations like the ACLJ.
I actually have come to believe that the ACLU is extremely important. Its issue on the 2d amendment is, of course, unclear, because the intended scope of the 2d amendment is unfortunately unclear (I'm referring to the introductory clause, regarding the militia).
If I understand correctly -- and please correct me if I'm wrong -- the ACLU's view on the 2nd amendment is basically "The NRA does such a good job of squashing gun laws, that we're left with very little to do on it." Also, the ACLU doesn't interpret the 2nd Amendment quite as broadly as many gun-rights advocates do, which really does leave them with a view that very little infringment is going on.
Which strikes me as about right -- the NRA is rather effective.
I got the impression the ACLU spends most of it's time on 1st Amendment stuff, with unreasonable search and seizure, unlawful detainment and other abuses of police powers coming in a close second.
I'm rather greatful for them -- zealous advocates of private rights should be encouraged, especially when their history shows that they are not prone to frivolous lawsuits and are remarkably open to taking on unpopular causes.
They should keep their paws off our seal here in L.A., though. (I know Ed agrees with me on that; I read his post saying so.)
I got the impression the ACLU spends most of it's time on 1st Amendment stuff
I haven't done a statistical analysis, but they also spend a lot of time on 4th amendment stuff, as well as some 5th, 6th, 7th, 8th, and 9th amendment stuff, as the cases arise. And voting rights issues. And matters arising from state constitutions.
The only thing they seem to avoid are matters relating to the 2d amendment. I can't find it now, but on the aclu.org web site there is a page that explains why: their board cannot come to an agreement as to what the 2d amendment is supposed to cover. The problem regarding the 2d amendment is the introductory clause, which relates to the militia. And the militia is a body organized and controlled by the state (with limitations established in Art. 1). So, does the 2d amendment mean that the states can regulate gun ownership, irresepective of incorporation via the 14th amendment?
I don't know, and neither does the ACLU or the NRA.
From a practical standpoint, it really doesn't matter. The US Supreme Court has refused to take up a 2d amendment case since the US vs. Miller case in the 1930s. It had a wonderful opportunity to a couple of years ago, but the case couldn't even muster the 4 votes necessary for cert in the most conservative Court in recent memory. So, if a US SupCt is not going to take a 2d amendment case, why should they waste time and resources on the issue?
They should keep their paws off our seal here in L.A., though.
That case was kind of silly. I doubt that many people even knew that LA had a seal, much less what it looked like.
Morat wrote:
No, the ACLU's position is that the first clause of the second amendment limits the second and means that the right to keep and bear arms is pursuant only to a well-regulated militia. I don't agree with that position, but it's not an entirely unreasonable one.
Patterico wrote:
Yeah, it's a pretty pointless situation. And it's one of those things that just fires up opposition to them without any benefit. As raj said above, I doubt most people even knew that LA had a seal or had ever looked at it. And most of the time I don't buy the "this is just a symbol of our history or heritage" argument, especially the ones that claim that the Constitution was based on the bible (a ridiculous claim) or that our "system of law" was "based on the Ten Commandments (an equally ridiculous one). But here I think this argument is legitimate. A lot of big cities in California began as Catholic missions, so there is in fact a direct link to history.
Even if the ACLU did collect atorney's fees from the government after winning a case, how would this be a valid complaint against them? The people who deserve scorn in this case are grand-standing politicians who do blatantly unconstitutional acts knowing good and well that they'll get sued, knowing good and well that they'll lose, but doing it anyway because the perceive plenty of political gain and little political risk. These are the jackasses wasting taxpayer money for their own benefit.
Steve, you hit the proverbial nail on the proverbial head. And it's the proverbial voters who elected those idiots, so they kinda/sorta deserve what they got.
No, the ACLU's position is that the first clause of the second amendment limits the second and means that the right to keep and bear arms is pursuant only to a well-regulated militia. I don't agree with that position, but it's not an entirely unreasonable one.
Actually, I agree with that proposition, because otherwise that would be tantamount to reading that out of the Constitution.
But that's another issue. The issue at hand is why the ACLU does not raise 2d amendment issues. One is that they cannot determine what the 2d amendment is supposed to cover. And another is that the USSupCt has shown that it has not been willing to take a case for over 70 years, so why waste the resources?