Sunday, August 07, 2005

Breaking News: The ACLU May Not Be Evil!

Eugene Volokh of the libertarian lawyer blog 'The Volokh Conspiracy' has a thoughtful, eloquent, and somewhat passionate defense of the ACLU against those who argue that that organization is pro-terrorist, anti-American, and makes a practice of filing frivolous lawsuits. Volokh argues that
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.
Later in the post, Volokh says that while he disagrees with many of the positions of the ACLU on certain issues, it is simply wrong to throw around misleading labels when arguing against them.(emphasis mine)
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.)
He finishes his defense of the ACLU with a strong and, I think, well put argument about what the REAL problem between the ACLU and its most vocal detractors actually is (emphasis mine):
What is in question here, indeed, is "the definition of freedom." There is lots of room for good faith disagreement about the scope of our freedoms. But that some people have a broader view than you do -- whether it relates to the right to bear arms, the right to be free from unreasonable searches and seizures, the right to counsel, the right to spend one's money for political causes -- doesn't make them criminals, doesn't make them pro-criminal or pro-terrorist, and doesn't make their arguments frivolous.
There is, as Volokh points out in later posts on the ACLU here and here, a common misperception that the ACLU is this monolithic liberal entity intent on crushing Christian expression, conservative thought, and advancing a liberal, anti-American agenda. I think that perhaps the ACLU needs to do a better job of publicizing the fact that it has actually worked to defend the rights of ALL Americans, defending the right of a student to wear a pro-NRA t-shirt and condemning campus speech codes, for example. Arguments like Volokh's, a figure of some significance in the legal circles of the conservative blogosphere, will go a long way to perhaps cleaning up the image of the ACLU. Yes, it may continue to take on silly cases (such as removing the tiny cross from a city seal), but it does far more good than harm in the defense of American freedoms. As Volokh argues, you are free to criticize the goals of specific ACLU-backed lawsuits, but to question the groups motivation is just uncalled for.
(Crossposted by Bostondreamer at Floridablues)
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