Beware The Loyal Opposition, ACLU Edition

Advocacy groups can be great. And suck. Even when they’re putatively on the same side of an issue, their “good intentionsmay be as harmful as those opposing.  Some groups are well-established, and enjoy credibility among the public. Some were born yesterday and are comprised of three people and a dog. Some have highly qualified lawyers on staff. Some have people with neither skills nor knowledge, but tons of passion. Some have lawyers suffering from deep personal conflicts with the group’s goals.

Point these things out and everybody gets wildly offended. No matter how obvious or accurate, nothing pisses off the passionate advocate more than not validating them. So what? The problem became glaringly apparent with regard to the newly proposed federal revenge porn law. In the many reports on the proposal, the only opposition voice mentioned was that of the ACLU.

But the bill has its detractors.

The ACLU has voiced concerns that revenge porn legislation generally criminalizes “the sharing of nude images that people lawfully own,” and the group believes legislation preventing revenge porn should make it clear that the perpetrator intended to inflict harm on the victim.

On the one hand, at least they didn’t endorse the law outright. On the other hand, a tweak to the mens rea requirement barely scratches the surface of what renders this law flagrantly unconstitutional.  But doesn’t that say “detractors,” plural? Yeah, well, it does, but the only detractor mentioned was the ACLU, and the only “issue” raised was mens rea. Section 230? Nah. First Amendment? Meh. One little fix and we’re good to go, says the ACLU.

But who would believe this nonsense, given that far deeper thought has been put into the failings of this law? Well, you would be surprised at otherwise skeptical people who got sucked in by “the ACLU said so.”

The ACLU has a rather simple request to fix this problem with the law: add an intent requirement, such that it only applies to those who “maliciously and intentionally invade another person’s privacy.” Even that may have some First Amendment issues, but supporters of the law refused to add an intent standard, claiming that such a standard would be too limiting, and wouldn’t cover those who weren’t motivated by “malice” but by money or fame. But, that’s ridiculous. Any court would likely decide that setting up a revenge porn site for money was a form of malice.

This reflects the level of faith in the ACLU as a defender of the Constitution, or the First Amendment, that comes from a history of fighting unpopular battles. But past performance does not guarantee future results.

That the ACLU rushed to go on record as endorsing a law that was flagrantly unconstitutional, but for the one “simple” fix, was shocking. What could drive an advocacy group whose mission is dedicated to preserving constitutional rights, no matter how unpopular they may be in any particular circumstance, to abandon their purpose this way?

Mark Bennett turned to the ACLU’s Lee Rowland to find out why.

Putting aside Lee’s lack of facility with twitter, and hence her problematic comprehensibility, it went downhill from there:

Apparently, defending the Constitution is now a “favor” for one ACLU attorney. It used to be the mission. But then, the little girl* in Lee Rowland showed her nasty face.

I’ve had good things to say about Lee in the past. I’ve also noted that she’s conflicted when it comes to revenge porn.  But Lee’s reaction this time was to make it about questioning her competence as a lawyer, and to devolve to infantile feminist name-calling. Oddly, she tarred me for what Bennett twitted, even though her attack on Bennett was unjustified either way.

But then came a shift that was deeply disconcerting.

The trolls were mansplaining her, so she turned to Mary Anne Franks for comfort and succor?  After all, having challenged Bennett for “alienating” his ally by not blindly validating her, Lee Rowland felt it worthwhile to denigrate the “boys,” because women have to stick together.

Does this make Lee Rowland a less competent lawyer? No, it has nothing to do with her abilities. Does this undo the things Lee and the ACLU have accomplished in the past? Nope. Nothing can undo the past. But does this make me want to defer to Lee Rowland’s “strategic compromise” of the First Amendment when it comes to the creation of a revenge porn crime and the first-ever carve-out of the Section 230 safe harbor?

Sorry, but no. Not at all.  Neither legal competency nor past results give Lee some blank check to blow off the First Amendment rights of a nation because she’s the ACLU’s First Amendment maven.  And if Lee would like to chalk this up to her hurt feelings, so what.  She can have her sleepover with Mary Anne any time she wants, but she cannot give away other people’s First Amendment rights because she agrees with Mary Anne’s sad tears.

And before wiping away those sad tears, one little detail worthy of note.

Though 34 states have various laws on the books that criminalize revenge porn in some form or fashion, a federal law would uniformly outline what is punishable. A federal law would also alleviate local law enforcement from having to pursue cases across state lines, which often happens as images make their way across the Web.

Despite 34 states having adopted the “ruined lives” mantra, there have been almost no prosecutions under any of these laws.  The major revenge porn purveyors have long since been prosecuted under other laws. Yet, the push for unconstitutional vanity laws rolls on.  If you’re counting on Lee Rowland and the ACLU to stop it, to defend the First Amendment from assault, you’re not only going to be very disappointed, but you won’t be invited to the sleepover party. I know I won’t.

*This is petty, but since Lee chose to go to “boys,” I get to play that game as well.


I don’t care either way whether Lee calls me “boy” or anything else. I mention this only to point out the childishness of her effort to lash out. She can be as SJW as she wants to be, but then she doesn’t get to expect us to “just trust her” as she gives away other people’s constitutional rights while doing so.

3 thoughts on “Beware The Loyal Opposition, ACLU Edition

  1. Gloria Wolk

    If we don’t ignore past good deeds, we also must remember that the ACLU’s history includes ignoring the right of citizens of Japanese descent during WW II. Probably before her time (and mine) but documented in Peter H. Irons’ book, “Justice at War.”

    Would the ACLU of today accept stripping constitutional rights of Muslim American citizens and Mexican American citizens?

    1. SHG Post author

      Appreciate the good the ACLU does, but never forget that it’s not perfect and can sometimes be downright wrong. Each issue needs to be viewed independently, and no constitutional right should be forfeited, even if it’s okay with the ACLU.

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