The Conflicted ACLU

Immediately after the University of Oklahoma/SAE scandal broke, Brady Henderson of the Oklahoma flavor of the American Civil Liberties Union issued a press release:

We join with OU President David Boren, as well as the majority of OU students, faculty, and alumni, and with an overwhelming number of Oklahomans in their disgust at SAE’s conduct this past Saturday night.

We applaud President Boren’s aggressive response to the SAE’s actions, and we encourage the OU administration to be equally aggressive in ensuring that the due process rights of students remain protected throughout any disciplinary processes against Fraternity members.

Of course, President David Boren’s “aggressive response” was to eviscerate the First Amendment rights of those involved.  The Okies then changed their minds:

As a state-run institution of higher education, the University of Oklahoma must also respect First Amendment principles that are central to the mission of every university. Any sanction imposed on students for their speech must therefore be consistent with the First Amendment and not merely a punishment for vile and reprehensible speech; courts have consistently and rightly ruled as such.

Oopsie. Sorry, First Amendment. We kinda forgot about you because we were so damn mad about the racist content.  The ACLU of Oklahoma is to be commended for correcting its knee-jerk reaction by remembering that First Amendment free speech rights matter too.  While it would have been nice had they admitted they screwed up as well, it’s better that they corrected their stance than not.

And this isn’t the first time an organization like the ACLU found itself caught in a clash of rights.  On the subject of criminalizing revenge porn, the ACLU’s Lee Rowland has similarly found herself straddling a very pointy fence with lots of splinter potential.  As the ACLU rips the Arizona anti-revenge porn law to shreds, Lee offered this:

To drive home the point, Lee Rowland gives a pop quiz:

Which of the following could land you a felony conviction in Arizona?

  1. Showing images of naked prisoners tortured at Abu Ghraib;
  2. Linking to the iconic Pulitzer Prize-winning photograph of “Napalm Girl,” showing an unclothed Vietnamese girl running from a napalm attack;
  3. Sharing a close-up photo of a woman’s breast with a breastfeeding support group;
  4. Waving a friend over to see a cute naked baby pic — like the one you see on this page.

Unfortunately, the answer is all of the above.

The law is that bad, that overbroad.

Unlike others, like me or Mark Bennett, whom the doyennes of revenge porn refuse to acknowledge because we don’t sufficiently moderate our criticism to suit their delicate sensibilities, Lee comes at the problem with legit feminist cred and a kinder, softer voice.  Advocates like Mary Anne Franks will engage with Lee where she won’t even mention the name of evil lawyers who call out her lies, though she may occasionally use other words to dismiss her nemeses.

But then, in trying to maintain that level of “civility” where one can be critical while not being so harsh that the other side runs away crying, problems develop:

Now I’m much more careful about agreeing that a content-based restriction on speech is valid. So this caught my eye:

Arizona’s law clearly violates the First Amendment, because it criminalizes protected speech,” said Lee Rowland, staff attorney with the ACLU’s Speech, Privacy, and Technology Project. She added, “States can address malicious invasions of privacy without treading on free speech, with laws that are carefully tailored to address real harms.”


I wonder how Rowland derived this principle of First Amendment law. Neither “malicious speech,” “invasions of privacy,” “malicious invasions of privacy,” nor “really harmful speech” is a category of speech that the Supreme Court has identified as unprotected.

In her effort to avoid picking sides against some of the tropes thrown around by the anti-revenge porn advocates, the red-herring arguments that tend to sway a person desperately seeking a rationalization that sounds somehow reasonable despite the poverty of its substance, Lee found a huge splinter up her butt.

The ACLU isn’t in favor of invasion of privacy.  Certainly it doesn’t actively support malicious speech.  Who does? This is what comes of trying to fit one’s reaction into someone else’s paradigm, where the arguments proffered, and tacitly modified over time as they realize they dug themselves into a hole but lack the integrity to admit it, have nothing to do with the law.  Sure, they may have emotional appeal to the uninitiated, but not even the deepest, most-heartfelt, teary-eyed feelings change what the law demands.

Criminalization is the opposite of liberty. Admitting the possibility of criminalization when there’s no constitutional basis for it is giving up that fight before it begins.

Organizations like the ACLU and its state subsidiaries do critical work. They have the wherewithal to take on assaults on fundamental freedoms that individuals lack. For this, we should all thank them, as the rights for which they stand up are ours.

Yet, they are almost invariably confronted with clashes of rights, with certain political values that make it extremely difficult to decide which side to be on, which is the “right” side of a problem.  It’s surprisingly common to find that the “right” side is unpopular, both internally and externally, particularly when the bulk of an organization’s support comes from individuals with progressive values.

That the ACLU figured it out with regard to free speech in Oklahoma is commendable.  That they were so quick to applaud Boren’s attack on free speech, thus providing a huge bludgeon for those who argue that free speech has its limits, because even the ACLU says so, makes clear the damage they could cause.

Words come back to haunt us all, to bite us in the butt when used inadvertently, mistakenly.  And no doubt Lee Rowland’s butt is already pretty sore from that big old splinter.  She, as well as her organization, do important work, but it’s also important to remember your guiding principles, even when you might feel the desire to be on the other side.

One thought on “The Conflicted ACLU

  1. John Barleycorn

    The imagine of the ACLU as some immovable castel upon the hill does get a little frustrating. But WTF it’s not like they have the cash the NRA does and in general, to their credit, they don’t seem to make as many compromisees as the good old boys do. But them Fucking Hippies what are you gonna do?

    (I know what you are thinking….don’t even go there. You just got to breath a few fighting words on the dice game now and then considering the stakes. Don’t ya?)

    Anyway, have no fear, oh shit oh dear, the Millennials are near. I just can’t wait to see how the individual branches of the ACLU empire deal with their opps-es.

    Participation trophies are nice.

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