More on Cramer and the ACLU

A few days ago I wrote about Volokh's use of the phrase "ACLU Derangement Syndrome" in relation to Clayton Cramer, who had claimed that the ACLU was likely to seek a law banning parents from teaching their children about religion. Volokh correctly called Cramer on the carpet for this, saying that there is no evidence that the ACLU would ever take such a position and that it's illogical to infer that they would from their hardline position on establishment clause cases. Now, it should be said, as Volokh did, that he doesn't mean that Cramer is literally deranged. What he meant is that some subjects prompt such a furious reaction from some people that they are simply incapable of having a rational, objective reaction to that subject. Some on the left get that way about President Bush, certainly, just as many on the right got that way, and continue to get that way, about the Clintons. They've simply built up such a demon in their minds that anything the object of that demonization does will automatically get interpreted in the most evil manner imaginable.

Anyway, Cramer stopped by and left a few comments, most of which trailed off into evolution and creationism rather than on the subject of the ACLU, but now Cramer has posted a defense of his position at his blog, where he lists a bunch of cases where he thinks the ACLU is wrong and says that it is their positions that rightfully prompt his view of them. But in the process, I will argue, he has in fact provided more evidence for Volokh's position that he is engaging in unwarranted criticism and distorting the ACLU's position in order to demonize them unfairly. I think he also misunderstands Volokh's argument to some extent because he thinks that by pointing out something he disagrees with proves that it's okay to demonize them. But Volokh is not arguing that there is no legitimate criticism of the ACLU. Quite the contrary, as Volokh himself has often been critical of them. But in order to maintain one's credibility in the matter, they have to be critical of their actual positions and not of caricatures of their position and their criticisms have to be justified and reasonable. I will show that many of the items on Cramer's list of evil ACLU positions are in fact distortions of those positions and, in some cases, not their position at all.

Like arguing that behavioral screening--looking for odd behavior, such as "heavy clothes on a hot day, loiterers without luggage, anyone observing security methods" is Constitutionally suspect. Let's see, they can't search based on race--that would be discriminatory. They can't search based on behavior--that might be racist.

He links to a previous post of his on this subject, but if you go to that post you notice that the statement from an ACLU official that he quotes doesn't support his argument. Here is the relevant quote from the ACLU official that he cites:

Barry Steinhardt, director of the American Civil Liberties Union's technology and privacy program, questions whether the program even works. "I haven't seen any studies on it," he said.

He's particularly concerned behavior pattern recognition might become a pretext for racial profiling.

"Not every police or security officer who's going to be heading up a local operation is going to be sensitive to the racial implications of the project, especially as you roll it out nationwide," Steinhardt said.

Nowhere in that quotation does Steinhardt say that he thinks the program is "constitutionally suspect". In fact, the ACLU has never taken any action to stop the program. He is simply saying that A) he hasn't seen any studies that say it works and B) he's concerned that the pattern recognition might become a pretext for racial profiling. Now, one could reasonably fault them for showing unwarranted concern. One could reasonably argue that such concern is overblown and that this security program is an example of excellent investigative work. But the argument that Cramer does make simply isn't supported by the evidence he offers.

They fight with every atom of breath to prevent the state from executing those convicted of murder--after a lengthy review of evidence, leaving no stone unturned to look for clear proof of guilt, has been completed--but they are prepared to sue to allow starving someone to death on the word of one person--her husband, who had a financial interest in seeing her die--while other relatives disputed his claim.

He is speaking, of course, of the Terri Schiavo case, something I know a bit about. And there is hardly a word of this that is true. First of all, I don't know where he got the idea that the ACLU was "prepared to sue" over this case. As far as I know, the ACLU was not a party to any legal proceedings in relation to the Schiavo case. They may have weighed in on Michael's side at some point, but the litigation was all done by others. Secondly, Terri's expressed view that she would not want to be kept alive with no hope of regaining full function was not based on the word of one person, it was based on the testimony under oath of three people. Yes, other relatives, her mother specifically, disputed those claims but her testimony was not credible. She claimed that Terri had said she would not want to be disconnected after seeing a news report on Karen Ann Quinlan's death on TV when she was in college. But Terri was only 11 when Quinlan died, not in college, and in her deposition the mother had said under oath that she didn't have any recollection of anything Terri had said. Add to this the fact that, also under oath, the mother testified that she would refuse to allow Terri to die even if she knew that Terri would want to in that circumstance, and that she would continue to fight to keep Terri technically "alive" even if they had to amputate all her limbs. Yes, she really did say that under oath.

Lastly, the claim that Michael "had a financial interest in seeing her die" is flat out false. In fact, quite the opposite is true. All of the money that had been set aside for Terri's care had been used up long before she died, there was none left for him to keep. And even if there was, he had signed a document to the court saying that he would divest himself of any money left over (a fact that the original guardian ad litem didn't bother to mention in his report, which led to him being dismissed from the case). In addition, Michael was offered $1 million to divorce Terri and give guardianship to her parents and he turned it down. The accusations of a financial motivation for Michael are completely false.

And complaining that students were boycotting classes to express disapproval.

And here he links to a previous post of his that, again, does not support his outrage at the ACLU. The incident in question was in Kentucky, where the ACLU had fought for the right of students to form a gay student group and meet on campus, a right protected under Federal law. In response to the formation of that group, almost half of the students at the high school boycotted classes to protest the fact that gay students were allowed to form such a club. And here is the ACLU reaction that Cramer quotes, which he thinks is outrageous:

James Esseks, litigation director for the ACLU's lesbian and gay-rights project, said the boycott represented ''the first time I've heard of a reaction of this kind or this size'' to the creation of a gay-straight alliance at a school.

''The level of reaction or resistance they're encountering illustrates the need for a safe place for these kids to meet,'' Esseks said. ''Can you imagine being a gay or lesbian student in a community where people feel so free in expressing their intolerance? That must be a difficult place to be.''

Is Esseks wrong? He isn't saying that those students don't have the right to express their disapproval; he saying that the fact that half the students in the school are willing to take such extreme measures to protest the formation of a gay group - which they don't have to attend or have anything to do with, so it doesn't affect them in any way at all - shows why allowing such groups to form is important. Having the right to do something doesn't mean there are no consequences that stem from it, and one of the consequences of those students expressing their views on that subject is that it does indicate an atmosphere of intolerance toward gay students at that school, making it all the more important that gay students have somewhere to go where they can talk about it, find support and help each other deal with it. Cramer makes it sound as though merely by pointing that out, the ACLU official is damaging the free speech of those students, but that is utter nonsense.

And the ACLU gets caught lying by Professor Orin Kerr (another member of the Volokh Conspiracy). And yet another example, again from Professor Kerr.

On the first example, he links to a post by Orin Kerr where he points out, correctly, that the ACLU's campaign against the Patriot Act was exaggerating some of the risks. Fair point, certainly, and the ACLU later corrected this and made the language of their ads more specific and accurate. But the "yet another example" has nothing at all to do with the ACLU. It points to a previous post by Cramer where he claims that Dahlia Lithwick had also exaggerated the effects of the Patriot Act. What does that have to do with the ACLU? Nothing that I can tell. Dahlia Lithwick is a senior editor of Slate magazine and has no connection with the ACLU at all. The only mention of the ACLU in that post is by Cramer and it has no connection at all to the ACLU. To claim that this is "yet another example" of the ACLU being "caught lying" is, frankly, a lie.

The ACLU believes in freedom of speech--unless you are a child who gives another child a pencil that says "Jesus loves little children." Here's the decision where a school district prohibited a child from handing out these pencils at a class party. And here's a case where the ACLU stepped in to protect a child from being disciplined for saying that he had two Mommies. Oh, and this kid wore a T-shirt to school calling Bush an international terrorist; the ACLU thinks that's protected free speech (which it is). Some forms of free speech are protected by the ACLU; others are not (and oddly enough, those are the Christians whose speech is not protected).

Now this is the most interesting one of all. The clear implication here is that the ACLU does not believe a child has a right to hand out pencils saying "Jesus loves little children" to classmates. He points to a ruling from the third circuit in such a case. There's just one tiny problem here - it has nothing whatsoever to do with the ACLU. They aren't mentioned anywhere in the case, they were not a party to the case. Cramer appears to be making the entirely illogical assumption that because the ACLU was not involved, they supported the school's authority to prohibit the child from handing out those pencils. But that is flatly contradicted both by reason and evidence. First, it is false to assume that merely because the ACLU wasn't involved in a case they wouldn't support the case. They cannot force themselves into a case, they have to be asked to provide the legal defense by the plaintiffs. There are lots and lots of cases where a plaintiff already has representation by another organization and doesn't need the ACLU.

More importantly, there is a long track record of the ACLU supporting the rights of students in similar cases. For example, in late 2002 at Westfield High School in Massachusetts, a group of students were suspended for handing out candy canes with bible verses attached to them to their classmates. The ACLU sent a letter on their behalf to the principal informing him that the student's right to do so was constitutionally protected; the school quickly reversed its position and lifted the suspension. The students then were contacted by Liberty Counsel, a Christian legal group, who encouraged them to file a suit anyway in order to get an injunction preventing the school from ever violating student's rights to religious expression again. They did so, represented by Liberty Counsel, and the ACLU filed a brief on their behalf in the case. (And yes, this is the same case where another person suffering from ACLU Derangement Syndrome, Jerry Falwell, wrote a column about the incident saying that those students have a right to hand out those candy canes "no matter what the ACLU says", blatantly ignoring the fact that the ACLU was on the students' side).

Last year, the ACLU appealed a case in Nevada defending the right of students to wear religious clothing in school. They filed briefs on behalf of students in Iowa defending their right to hand out religious literature to their classmates. They also represented a high school student in Michigan who had been forbidden from using a bible verse in her yearbook profile. And those are just the most recent cases involving students specifically. There are also dozens of cases where they defended the right of ministers to preach on public sidewalks and in public parks, defended the right of churches to use public parks for baptism services, and defended churches (including Falwell) against unfair zoning regulations.

It is highly dishonest for Cramer to claim that the ACLU opposes allowing children to hand out pencils with religious messages when the ruling he links to has nothing whatsoever to do with the ACLU, partiicularly in light of the long track record of the ACLU in defending the rights of students to religious expression in schools. This is precisely what Volokh meant when he used the phrase "ACLU Derangement Syndrome". As he put it, the person suffering from it has "a hostility that causes the speaker to miss contrary evidence, and to lose a sense of perspective." I'd go further than that. I think it even makes people think that it's okay to distort the ACLU's positions because even if they aren't really guilty of what you accuse them of, they're guilty of plenty of other things anyway. I think this is made quite clear by the list of examples above.

Cramer has compiled a highly inaccurate and dishonest list of accusations, and mixed in a few legitimate ones as well. But the inaccurate ones surely are evidence that he isn't really interested in the truth but in demonizing the ACLU, accuracy be damned. There are legitimate reasons to criticize the ACLU. I criticize them myself. I think they should take the 2nd amendment far more seriously than they do, and I think they should be fighting against eminent domain cases tooth and nail, as they are absolutely a deprivation of the right to property in many cases. But when you have to exaggerate, distort and sometimes even accuse them of lying when the statement you claim as a lie comes from someone with no connection to them, your credibility is pretty much shot from the get go.

By the way, I emailed Cramer last night asking for some details on why he referenced the ruling on the kids handing out the pencils when it had nothing to do with the ACLU. I've gotten no response yet, but I'm 99% sure that he was just assuming that since the ACLU wasn't involved in the case they must be in favor of not allowing the kids to hand them out. It's possible that there was some other involvement there to justify his reference, but if so it would be totally out of step with the many cases where they have defended students' rights to religious expression. If that turns out not to be the case here, I will certainly retract that particular charge.