The Fabulous Women of the Glamorous ACLU

The Constitution and social justice aren’t good friends. The talk may make it seem as if they are, but talk is cheap. Former Democratic presidential candidate and Vermont governor for life, Howard “The Cowboy” Dean nailed that on the twitters.

Maybe somewhere, but not in this country. Defending the Constitution, even though it means forsaking the passionate feelz of social justice, used to be the mission of the American Civil Liberties Union, a shoestring organization that took up unpopular causes because, well, that’s how the Constitution gets defended. Popular causes don’t need a defense.

But then came the Muslim ban, and no longer were they constrained to drink tap water. Flush with millions of dollars of contributions, they could now afford the fizzy stuff from France. So what if the nice folks sending loot didn’t grasp the organization’s mission. They weren’t going to dissuade them, and they surely weren’t giving the money back.

But that was just the start of the paradigm shift for the forlorn lawyers charged with doing the dirty work of upholding unpopular causes. They were in vogue. And they are in Vogue.

(left to right): The ACLU’s Hina Shamsi, Adina Ellis, Cecillia Wang, Esha Bhandari, Louise Melling, Jenn Sturm, Melanie Garunay. Photographed by Tom Johnson

No swimsuits, thankfully, and no guys either. But what were the chances this pic would appear in the highest of fashion rags? And did they dress for the occasion?

To be an ACLU lawyer, suddenly, is to be something of a rock star. Lee Gelernt, the attorney who filed the first challenge against Trump’s so-called “Muslim ban,” appeared on Samantha Bee’s Full Frontal. Sarah Paulson called the organization out in her SAG Awards acceptance speech. Tom Hanks is sending an espresso machine to the New York office (presumably the same model he gave to the White House press pool). Sia pledged to match donations from fans, resulting in a storm of tweeted receipts.

Rock stars? They weren’t rock stars in Skokie, but times change. An organization that was once dedicated to being the last bastion of civil rights for the despised has now discovered People Power.

People Power is a bold new direction for a very old institution, and one that comes in direct response to the massive outpouring of support the ACLU has received since Donald Trump’s November upset. That support has manifested not only in the form of dollars—though donations and membership are way up—but in manpower, too. “The only thing that’s reassuring now,” I’m told by Donna Lieberman, executive director of the New York Civil Liberties Union, the largest of the affiliates, “is that the Trump regime and its take-no-prisoners approach to the institutions that form the foundations of our democracy has awakened the sleeping giant of the American people.”

Powerful words, but devoid of actual meaning. Is that mission creep or pandering?

If the ACLU made its reputation playing legal defense against constitutional infringements—“We’ve got your back,” is a common refrain—People Power seeks to lead the charge. And the people, an army of freshly minted activists, seem eager for marching orders.

What are the chances the ACLU’s new sycophants will be ordered to defend the rights of Skokie Nazis to march? Or Charles Murray to speak? Will that bring the celebrities out to extol their virtues? Will that get them hair and makeup before their beauty shot? An Oscar perhaps?

But if the evening had a climax, it happened earlier, during a presentation by First Amendment attorney Lee Rowland. It was, on the one hand, a straightforward brief on the legal contours of the right to dissent; on the other, it was a reminder—replete with slideshow images of the suffragettes, the Women’s March, Black Lives Matter, and Martin Luther King Jr.’s “I Have a Dream” speech—that the rights sanctified in the First Amendment, the ones that Donald Trump has repeatedly threatened and that some state legislatures have recently sought to squash, are what undergirds each and every popular crusade for a more equal and just America. And while there are many organizations mobilizing people to protest the Trump agenda, the ACLU is likely the group most concerned with protecting the basic right to do so.

See what they did there, “every popular crusade for a more equal and just America”? Sweet words though they may be, they’re the dog whistle of social justice, not civil rights.

“I’m what you’d call a true believer in the First Amendment,” Rowland announced. “It’s foundational.”

It is, indeed, foundational, but calling oneself a true believer might fall a bit short of reality. Lee and the ACLU have been taken to task for a conflicted view of the First Amendment.* It’s not that they’re not for the First Amendment, as much as they’re for other things more. They have feelings too, you know.

Even before Trump was elected, the ACLU was trying to rebrand, as this whole constitutional mission wasn’t playing well with the children.

In the summer of 2016, the ACLU put out a call to creative agencies asking for help with an image refresh. They wanted, remembers Michele Moore, to lighten up their tone. In September, they signed on with Co:Collective, which specializes in helping organizations define their “Quest,” or “higher purpose that powers everything they do.” With her agency’s help, Co:Collective chief creative officer Tiffany Rolfe told me, the ACLU settled on: “We the people dare to create a more perfect union.”

Then came Trump and, boom, the ACLU was suddenly cool. They were rock stars. Filthy rich rock stars.

Then Trump was elected, and suddenly the whole makeover seemed somewhat beside the point. Donations flooded in to the tune of $85 million. There was money enough to hire 100 new people and to ramp up advocacy efforts. The email list doubled. The social media following more than tripled. Membership nearly quadrupled, from 425,000 to 1.6 million. And crucially, now more than 20 percent of those donors and activists—roughly 300,000 people—are under 35.

There’s just one problem. This vast support has nothing to do with their mission or the Constitution. Rather, the ACLU now threads the needle by trying to appease their newfound cash machine while not doing everything possible to destroy constitutional rights in the process. They tout their gains, but only the ones the that align well with the feelz of the newly-minted activists, and only in words that are sufficiently vague and meaningless to keep the cash and cappuccino machines coming.

When you get a spread in Vogue, it must feel good, rewarding, to be loved and appreciated. Too bad that it’s for all the wrong reasons. But if they don’t pander to social justice and give away the Constitution, how will they get Fox to air “Real Housewives of the ACLU”?

*Lee Rowland, to her credit, has shown a willingness to do the unthinkable, arguing that Trump, despite his deplorability, still enjoys free speech.

Some people have cheered the judge’s ruling in this case — perhaps gratified that Trump’s ugly campaign is finally getting some comeuppance. It’s certainly understandable why reasonable people could see those Trump rallies as racist, sexist powder kegs. I know that many Americans fear we’re slipping into fascism, and see the violent euphoria that has sometimes emerged at Trump rallies as a harbinger of a moment from which our democracy won’t return. I worry, too.

But if we really want to protect against that moment, we cannot do it by weakening our commitment to constitutional values.

Now about that violent euphoria of the antifas?

23 thoughts on “The Fabulous Women of the Glamorous ACLU

  1. Billy Bob

    We like it when they wear heels. Some seem not to know what to do with their arms. There are no men in the lineup, but one comes close. And then there’s the token black lady.
    Now that their resources are “unlimited”, perhaps they can help real defendants in real need,… which they have been loathe to do in our lifetime. Of course, that is unlikely to happen if it’s a bunch of disgruntled, misfit women pushing their favorite agendas which have nothing to do with the Constituition, civil or otherwise.

    The more things change, the more they stay the same. Now they can buy expensive clothes, drive nice cars and go on the occasional vacation. The Red Cross, NAACP and ASPCA are jealous of their new-found success.

      1. Billy Bob

        I think I remember that entry. Enjoyed re-reading, plus comments. I notice you did not have the reply option back then. That was an improvement, although it took some of us a while to get used to. No, the Red Cross is not hurting. And a family member has donated heavily to DW/OB.
        Hey, how about Lawyers Without Borders? You hurd it hear first. Mr. Trump might consider setting up his own non-profit: Trump Civil Liberties Union! Or would UnCivil Liberties be more appealing?

  2. B. McLeod

    Money and cooption often go together. Sometimes, the “mission” has to be sacrificed. For the new “mission.”

  3. Jeff Gamso

    You speak of civil rights, but the problem is the long-time tension in the ACLU between civil rights and civil liberties. There’s plenty of overlap, but they aren’t the same thing, and on some issues – and so-called hate speech is a major one – the tension becomes open conflict.

    There are those affiliates – my own, Ohio, is one – that are and are understood to be First Amendment absolutists. There are others, and the national office in recent years, not so much.

    These things change over time. There are serious issues about the ACLU’s fluctuating historical commitment to undiluted First Amendment absolutism. In the decades to come?

    1. SHG Post author

      I speak of constitutional rights. Trying to finesse the difference between civil rights v. civil liberties is a game played to avoid admitting that you (not you, Jeff, but the generic “you”) only support constitutional rights when you like how they work out. That’s not supporting constitutional rights, but supporting your values and using the Constitution only when it’s convenient. The rest of the time, you’re deliberately undermining the Constitution when it doesn’t align with your values.

      Nor is it just the First Amendment, although referring to it as “absolutism” makes as much sense as calling a pregnant woman a pregnancy absolutist. If one supports free speech as long as they like it, they don’t support the First Amendment at all. But what of the ACLU supporting revenge porn criminalization? Since when is supporting the creation of new crimes part of its mission? What about denial of due process of males in campus Title IX prosecutions? Or condemning antifa violence?

      And when the media and politicians turn to the ACLU, because it’s supposed to be the voice of the Constitution, for its position, and the conflicts appear that are used to support criminalization because the ACLU says punish the the speakers, punish the guys, deny them due process, criminalize thought crime? The ACLU becomes an active player in defiance of its mission. It’s the problem, not the solution.

      Tell the people in prison, or expelled from college, because of the ACLU’s “fluctuating historical commitment” and see how much they give a shit about how things change and social justice feelz mean more than the Constitution on any given day. If the ACLU chooses to support constitutional violations when they conflict with its social justice values, then so be it, but let’s not pretend it’s all good or that they’re still the heroes of the Constitution.

      1. Jeff Gamso

        No pretense. The First Amendment absolutists are just that. They support free speech absolutely. They don’t buy into the hate speech doesn’t county mantra. They don’t go with the revenge porn folks.

        The national office and some other affiliates not so much. I did not say and am not saying that the ACLU is all good or all “heroes of the Constitution” (and certainly not “still” for support that has come and gone over the years). And no, it’s not just the First Amendment. After the cops who beat Rodney King were acquitted, the ACLU briefly its opposition to the dual sovereignty doctrine. Only briefly, but still.

        So yeah, it fucks up. (Even the best affiliates, frankly.) Has, does, and will again. It doesn’t live up to its ostensible ideals, sometimes even turns on them. And sometimes, even within the ideals, its priorities are screwed up.

        Then again, I don’t know of any organization (or frankly of any people) that always lives up to its ideals or never just gets it wrong and won’t be convinced otherwise.

          1. Jeff Gamso

            Bad thing.

            On the other hand, I’m a criminal & capital defense lawyer. Doing some bad stuff or doing a lot of bad stuff some of the time shouldn’t be fatal. Especially when there’s good stuff, too.

            1. SHG Post author

              So let the ACLU allocute, show a little contrition and do shock incarceration. They’ll be out in no time.

        1. Miles

          I am struggling to understand why you keep using “first amendment absolutist.” You know that there’s no hate speech exception, and anyone who says hate speech isn’t protected speech is anti-first amendment. You can believe or not, but you can’t half believe.

          Since it is used as a slur, to make people who support the Constitution seems like crazy extremists, why do you use it? Are you conflicted too?

          1. Jeff Gamso

            It’s a contrast – and maybe I got it as internal ACLU jargon. Pretty much everyone at the ACLU claims to support the First Amendment, and most do until there’s a conflict between the First and what they view as the equality principles of the Fourteenth. Then, too often, the Fourteenth’s principles win. The absolutists always have the First win.

            No, I’m not conflicted. But rights can conflict – or at least seem to. (Think, within the First Amendment, of the Free Exercise and Establishment Clauses.) When they do, or seem to, one is going to trump the other. Choose a side. The choices are only easy if you think some are absolute and others not.

            1. SHG Post author

              Now you’ve confused me again. How does hate speech (whatever that is) implicate 14th A equal protection? I understand how it implicates some vague, chaos theory of equality, but that’s not 14th A equal protection. So you have a constitutionally protected right on the one hand and a pseudo-equality value (happy to explain why I say pseudo, if you would like) that enjoys no constitutional protection on the other. Where’s the constitutional conflict?

      2. Keith

        “you only support constitutional rights when you like how they work out.”

        That’s basically the stated position of the ACLU that they told me when I questioned their lack of a stance defending another amendment:

        “The ACLU’s concern is what is allowable under the Constitution, not where or when the Second Amendment applies.”

        Doesn’t smell much better in the 1A context.

  4. Jeff Gamso

    No further reply link, Scott. I don’t see a conflict either. But others do.

    They argue that hate speech demeans and therefore denies equality – sort of the way Clarence Thomas says he was denied equality by getting into Yale Law at a time of affirmative action (an imperfect analogy, but still). Then they say equality wins.

    I’d say it’s a slippery slope, but it’s not. It’s just wrong from the beginning. But that’s how the thinking goes.

    1. SHG Post author

      Use the last reply button when they run out. So it’s just the attenuated chaos theory of equal protection. The problem with non-lawyers feeling that way is that they just don’t understand law or the Constitution, and rely on their feelz for what they want the law to be. When it’s the ACLU, they can’t fall back on the shit-for-brains exception. I guess that’s where I struggle with the claim of conflict.

  5. Nemo

    As I have said before, not a lawyer. However, this issue isn’t about the finer points of law, it’s about the evolution of organizations. In that vein, I believe that SF author Jerry Pournelle’s Iron Law of Buracracies merits a mention, since it describes and predicts what happened here.

    “Pournelle’s Iron Law of Bureaucracy states that in any bureaucratic organization there will be two kinds of people”:

    First, there will be those who are devoted to the goals of the organization. Examples are dedicated classroom teachers in an educational bureaucracy, many of the engineers and launch technicians and scientists at NASA, even some agricultural scientists and advisors in the former Soviet Union collective farming administration.

    Secondly, there will be those dedicated to the organization itself. Examples are many of the administrators in the education system, many professors of education, many teachers union officials, much of the NASA headquarters staff, etc.

    The Iron Law states that in every case the second group will gain and keep control of the organization. It will write the rules, and control promotions within the organization.”

    Pick an organization that is run by those dedicated to the work, any of them. In the long run, the Iron Law will apply. Thyose who take over will rationalize the “new direction” they take with thoughts like “if the organization doesn’t exist, it can’t do the work”, forgetting that if the primary drive becomes fundraising, etc., the intended work will be neglected, since it isn’t a top priority. Other priorities will take precedence, all of them “intended” to improve the work of the group, while the actual work becomes almost an afterthought.

    As Exhibit A, I present breast cancer foundations. They keep raising awareness, as though breast cancer is still a mystery to most people. Funding research? Bah, that doesn’t drive fundraising, and if the organization can’t raise gobs and gobs of cash, how will it be able to pay for fundraising activities?

    I could cite more examples, but I think everyone knows an organization or two that has fallen victim to this process.

    As long as there’s a position of authority, it will eventually be occupied by someone who wants the authority. The people who want to accomplish goals will be shunted aside by those who seek control instead of mission.

    And, IMNSHO, when the control people take over, they announce that the organization has a bright future. They are right, but unfortunately, it comes at a cost to the mission, since the top priority becomes the good of the organization. You cannot have multiple “top priorities”, no matter how much people pretend that it’s possible.

  6. Pingback: Meet the ACLU’s Free-Speech Trojan Horse – Defending People

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