The Very Funny ACLU Brief

We traveled down to Atlanta to moot* Mark Bennett before his oral argument before the Georgia Supreme Court, where he was arguing a First Amendment case pro bono on behalf of a poor schmuck. Nobody famous. Nobody rich. Nobody anybody would think twice about. Except Bennett, which was why he was there, on his own dime, to help.

You know who wasn’t there? The ACLU.

This wasn’t an issue at the time. Nobody expected the ACLU to step up to aid Bennett’s defense of the First Amendment. It was, at that point, an organization that had to divvy up its scarce resources carefully, and it’s concerns about free speech were already deeply conflicted. Fair enough (not really, but that’s how it was).

Then a rich guy sued a couple of really rich, huge corporations and a funny and fabulously successful comedian in a ridiculous suit. It wasn’t only silly, but relatively inconsequential, as everyone involved could afford the best legal counsel available. Plus, the case was legally very clear cut. There was little no risk that it would have deleterious consequences for free speech.

But the comedian was very popular with progressive audiences. Beloved, even if not always sufficiently knowledgeable and nuanced to get his information right. Still, he made fun of the people they loved to hate, so they loved him. And so did the ACLU of West Virginia.

III. Anyone Can Legally Say “Eat Shit, Bob!”

A. Plaintiffs’ Motion for a Temporary Restraining Order is Ridiculous. Courts Can’t Tell Media Companies How to Report, Bob.

1. All of John Oliver’s Speech Was Protected by the First Amendment. You Can’t Sue People for Being Mean to You, Bob. 

2. Plaintiff’s Requested Injunction is Clearly Unconstitutional. You Can’t Get a Court Order Telling the Press How to Cover Stories, Bob.

Ha! They said “Eat Shit, Bob!” For the sake of the argument, the brief added little, if anything. The language was designed to make the groundlings laugh their asses off, but it’s banal stuff at best, and likely to make a judge cringe at its pointless vulgarity at worst.

Then again, it didn’t really matter, as the ACLU was coming in as amicus, so it was merely a supplement to the sound arguments that extremely capable counsel would proffer to the court. There were the real lawyers, making real lawyer arguments, and then there was the ACLU playing the clown for the benefit of those watching from a distance. Oh, how their fans would laugh and laugh, and love the ACLU so dearly for defending the beloved comedian (while forgetting that the primary defendants were mega-corporations who loved the same comedian enough to pay him handsomely for his snark). More importantly, the fans would adore the ACLU’s outrageous snark, the sort of very funny stuff they love so much on social media, and here, their favorite civil rights organization was writing it for stuffy old judges.

How cool is that?

And, frankly, “why the hell not?” appears to be the motivating factor in many of the decisions made by Jamie Lynn Crofts of the ACLU of West Virginia. Indeed, Jamie — who, with this filing has quickly climbed up many rungs on my “favorite 1st Amendment lawyers” list — appears to be channeling her inner John Oliver in much of the filing, as it appears to treat the filing in about the same manner with which Oliver approaches the subjects he satirizes on his show: it’s detailed, thorough, hilarious and razer sharp as it slices and dices its subject.

This is exactly the reaction the ACLU hoped to achieve. Not with the court. Not with a knowledgeable legal audience, but to the non-lawyers who would adore it’s rather low-brow snark and not realize that the legal issue required no heavy lifting. It was the ACLU screaming, “hey guys, look at us! Aren’t we cool!!!” And indeed, cool they were.

This isn’t the first time an amicus brief was proffered that was humorous. Ilya Shapiro and P.J. O’Rourke submitted a satirical brief in a case a few years back as well. Of course, that was to the Supreme Court, not a district court. That was in a case of first impression, not a pedestrian defamation case. The satirical nature of the brief was a critical aspect of the argument and not gratuitous. And the brief was witty, not funny.

Was there anything wrong with the ACLU submitting its funny paper to the court? Nope. They were on the right side of the Constitution, and there is nothing wrong with a civil rights organization supporting free speech. So what if the party they backed had all the money it needed to beat a fairly simple case. So what if they were taking their now-less-than-scarce resources and putting them to good use backing billion dollar corporations.

They played to their core audience on behalf of a favorite comedian, and would be showered with recognition and adoration for their efforts. That’s what brings in the moolah, kids. That’s what tricked the kids to send them the moolah. And they’re allowed to cash in on a slick move to appeal to their core, if foolish, constituency.

But it would be nice if they used some of that loot to support the unpopular cases, the poor schmucks that a guy like Bennett will dig into his pocket to help. The hard cases, where a childish references to “shit” in a brief won’t win over a court or save a life. But then, their adoring fans wouldn’t notice or care about such cases, as they don’t involve rich comedians who pander to a certain political agenda shared with the ACLU’s most avid contributors.

In fact, the hard cases are where the help of an organization like the ACLU to defend constitutional rights is pretty much a turn-off to their biggest fans and contributors. Hard cases involve nasty issues, unpleasant litigants and often back the antithesis of social justice for the sake of the Constitution. They wouldn’t get a dime out of that. And it just wouldn’t be funny.

*As a number of non-lawyers have questioned my use of the word “moot,” it seems an explanation would be helpful. This is a lawyer usage, as in “moot court.” In preparation for argument, we “moot” a lawyer by asking questions that a judge might ask so that he can prepare for argument.

40 comments on “The Very Funny ACLU Brief

  1. Keith

    I imagine the conversation around the ACLU drafting table was more concentrated on advertising than legal theory.

    Perhaps they’re in the wrong line of work.

    1. SHG Post author

      Gaming their new-found, not particularly bright but very passionate, fans and donors seems to be at the heart of everything they do these days. They don’t take many risks, and avoid taking a side that might piss off their social justice conscience contributors. More to the point, they are willing to fight against civil rights if they have to to please their donors’ feelz.

      Jeff Blackburn made this point with the Innocence Project, that eventually it becomes all about money and self-perptuation, until the mission is forgotten and the bank account is all that matters.

      1. Keith

        These days, stepping out on the true and only progressive position can get you killed. And if the ACLU got killed for voicing an unpopular opinion, who would be there to protect the voices of the unpopular opinions?

      2. Charles

        Your typos are showing. I presume “self-perptuation” means “making oneself into a criminal.”

  2. Rachel M.

    I’ve heard of mooting an issue, but an entire person? That poor Bennett defendant (now say that 5x fast)…

    And yes, I’m coming to regret a foolish donation some years back to them.

  3. wilbur

    Call me old fashioned. Or call me irresponsible.

    It just doesn’t tickle me, Bob. Most of us of us learned how to say “shit” in the 4th grade, Bob. It was occasionally funny when we were 11, Bob. Then we moved on, Bob.

  4. B. McLeod

    As Bob is my witless, this sort of writing is excessively indecorous. Perhaps appropriate for an Internet comment board, but not a brief.

      1. B. McLeod

        Which was probably the real purpose, but the court should have rejected the brief.

        The function of legal counsel in a case is different than that of a clown, and is governed by rules of procedure and rules of professional conduct. In every jurisdiction I have ever heard of, briefs (and even verbal statements of counsel) are to be addressed to the court, not to counsel, and not to parties in the litigation. Using an amicus brief to mockingly address a party in the litigation is improper, and the attorney who drafts and files such a brief has professional issues.

  5. Richard Kopf

    SHG,

    Had I been a lawyer for the defendant comedian and the other defendants I would have been really pissed off at the ACLU amicus brief. I certainly would not have signed off on the filing of the brief had I as defense counsel been asked whether the Court should permit the filing.

    The rhetorical message not deeply buried in the brief is this: Weird looking southern redneck capitalists are foul people, especially if they mine coal, and they deserve to be publicly savaged by their betters. Many federal trial judges I know, even those inclined to lean left, would have been utterly turned off by the ALCU’s too cute by half effort.

    All the best.

    RGK

    * The Chicago educated lawyer who wrote the ACLU brief proudly proclaims on her ALCU bio that, among other accomplishments, she lived in France for one whole year teaching English. Ah, the Bourgeoisie.

    ** One wonders whether the humorous photographic comparison–of the plaintiff and Dr. Evil–might have been improved by junking it. Instead, I envision an even better one: a photograph of the plaintiff juxtaposed against a photograph of the morbidly obese Al Gore. Get it. Both fat cats, don’t ya know!

    1. SHG Post author

      There was once a time when briefs were written for the sake of persuading a judge/court based on what would be persuasive to the decision making. Good times.

  6. Windypundit

    Frankly, the ACLU brief struck me as a sad case of Randazza-envy. Snarky speech-related legal arguments are his thing. Leave legal snark to the experts, guys.

    1. SHG Post author

      As Marco knows, it’s not easy doing snark right. It’s something most lawyers shouldn’t try at home (or in the office).

  7. Jim Tyre

    (Not hitting reply deliberately, since this goes both to a comment by B and to something SHG says in the text.)

    B.,

    but the court should have rejected the brief

    The docket number is 26-1. That’s because 26 is the motion for leave to file the amicus brief. Last I checked (not today), the Court hadn’t ruled on the motion.

    SHG,

    Of course, that was to the Supreme Court, not a district court.

    Sometimes, amicus briefs in the district court are more effective than in higher courts. The idea is for the court to get it right in the first instance, rather than having to get a bad ruling corrected by a higher court. District judges vary wildly in whether they will accept amicus briefs. But speaking generally, they’re more likely to do so if the issues are unsettled rather than well-settled.

    1. SHG Post author

      Thank you for explaining how amicus happens, and for using small enough words so I could follow, Jim, but that really doesn’t have anything to do with why I included the quoted sentence.

  8. Bruce Godfrey

    The “deplorables'” amicus brief of Shapiro and company in the Slants (in re Tam) case was of both superior humor and practical content in my view, the former buttressing the latter as more than just clown-car fun.

  9. Charles

    “Was there anything wrong with the ACLU submitting its funny paper to the court? Nope.”

    Except for getting the law wrong: “All prior restraints on expression are presumptively constitutional; prior restraints on matters of public concern are even more so.” p.13.

    The ACLU figured it out their mistake and re-filed the brief yesterday, adding an “un” to the “constitutional”. But they didn’t ask for leave to amend their brief. They just filed it.

    Benchslap Prediction: The Court denies leave to file an amicus brief that is neither necessary nor helpful. The Court denies leave to file the amended brief, as amicus did not bother even to ask for leave and merely is cluttering the docket. Finally, the Court cautions amicus counsel to refrain from gratuitous filings.

    1. SHG Post author

      I missed that. Good catch. Typos happen, but if you’re going to file a snarkbrief, then you really need to catch something like that before you look foolish.

      I wonder what the judge will do. After all, it’s the ACLU, the final word on how many constitutional rights we’re allowed as long as nobody’s feelings are hurt.

      1. wilbur

        “As Marco knows, it’s not easy doing snark right. It’s something most lawyers shouldn’t try at home (or in the office).”

        What you said above applies here as well.

        Snark has its place, like sarcasm and of course humor in general. But the snarker better get the tone exactly right, or else Mr. Snarky ends up looking worse than the target. And if you make a typo or spelling error, it becomes glaring.

  10. R Hayes

    You see the same thing throughout this arena. For all the NRA’s bluster, the big legal victories on that subject, most importantly Heller, have come from the Second Amendment Foundation instead.

    Why spend money litigating when you can spend money advertising to get more money?

  11. Scott Jacobs

    Oh, come on, SHG. If the ACLU were busy filing substantive briefs about issues where actual rights were in danger, they wouldn’t have time to help the famous people who can easily afford to hire people to make the same arguments.

    Do you have any idea what that would do to their ability to bilk the feckless masses for donations? Do you want the ACLU to be reduced to serving domestic wines at their masturbatory award ceremonies?

  12. PJS

    I completely agree with everything said about the waste of time it was to file this brief, the better ways the ACLU of WV could have spent their time and resources, and that the humor was C+ (at best.) But–putting aside for a moment the obnoxious tone of the brief–is throwing their hat in the ring for a popular celebrity, especially in such a loud-mouth way, good for ACLU’s resources in the long run?

    I was thinking about this (and whether or not it would even be a smart maneuver) immediately after beginning to read the brief. If that were the case, and notoriety/publicity were the goals, would the means even justify the ends? Or, is it best to continue fighting the noble fight…

    *I hate myself for saying this more than you will when reading it* but: food for thought.

    Cheers.

    1. SHG Post author

      More? Don’t be too sure.

      What disturbs me most about this brief aren’t the myriad problems, but the sense of the ACLU playing to the crowd, whether for love or money. If the cause is popular, who needs them? If the cause isn’t popular, will they be there? And worse, if the cause isn’t popular, will they come out on the wrong side to keep their adoring fans and full coffers?

      1. PJS

        I understand your point — I just wondered if the brief was (as I believe someone mentioned above) a marketing stunt. So I wondered if that would be such a bad thing, if the end game was to boost financial resources and keep themselves at the forefront of everyone’s attention. But I think you are absolutely right to be uneasy about what a horrific turn for the ACLU that would be (i.e., appeasing to whatever the hip trend is.)

        Hopefully they soon return to directing resources and manpower towards the unpopular important causes. And, that they forego the use cheap tricks to simply indulge in the limelight.

      2. B. McLeod

        What disturbs me most about it is the generally laudatory press reaction, even at numerous legal blog sites, tending to suggest to young lawyers and law students (and the general public) that this sort of completely unprofessional behavior is not only acceptable, but clever and praiseworthy. The purpose of a brief is to address the merits (vel non) of issues before the court, not to personally attack a party litigant by directly addressing immature taunts to them by name. It is completely possible (and the normal expectation of licensed officers of the court) to address a party’s positions as such, without stooping to schoolyard jibes directed to the party in person. Any person attempting to practice law who is unable to grasp this point is probably unsuited to the profession, and is certainly in need of some remedial training on the role of counsel as advocate and the rules of professional responsibility.

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