In McCullen v. Coakley, the Supreme Court will reconsider its 2000 decision in Hill v. Colorado, which upheld a law prohibiting (among other things) leafleting and some other forms of peaceful protest within 100 feet of an abortion facility. (Massachusetts in 2007 passed a similar law which is now under challenge.) Noted civil libertarian Floyd Abrams, writing in the WSJ, sees the case as a straightforward one of supporting free speech for a position with which he happens to disagree. But the ACLU, Abrams notes, has changed its position between the earlier case and this one, and in a speech-unfriendly direction:
In a friend-of-the-court brief in Hill, the ACLU argued that because the Colorado statute “burdens substantially more speech than is necessary to accomplish the state’s goal,” the statute was facially unconstitutional. When the 2007 statute was proposed in Massachusetts, the Massachusetts ACLU opposed it, stating that “[i]f the message is unwelcome, as it often will be outside abortion clinics, the constitutionally appropriate response in a public forum is for the listener to walk away.”
But now that McCullen has reached the Supreme Court, both ACLU groups have switched sides. Their position, their brief states, has “evolved over time” and the Massachusetts law is, after all, constitutional on its face. Of course, the First Amendment has not changed in the 14 years between the filing of the ACLU briefs in Hill and McCullen; the ACLU has.
The old ACLU got it right.
P.S. More from Jonathan Adler. And the Cato Institute filed this amicus brief in the case of McCullen v. Coakley.
“The American Civil Liberties Union has filed a federal action against the U.S. Conference of Catholic Bishops, alleging that its ethical guidelines given to Catholic hospitals resulted in negligent care for a miscarrying woman.” The suit, in the name of a Muskegon, Mich. woman who allegedly experienced pain and suffering by not being advised at once to abort a doomed fetus, also names as defendants three individuals who have chaired a church-affiliated body by the name of Catholic Health Ministries. The suit does not however name as a defendant Mercy Health Partners, where plaintiff Tamesha Means was treated, nor does either the Bishops’ Conference nor CHM own Mercy. So what’s the legal theory? Well, the bishops issued ethical guidelines they expected Catholic-affiliated hospitals to follow, and CHM acted as Mercy’s “Catholic sponsor” vouching for its compliance with those guidelines. So maybe the theory consists of “incitement to commit malpractice.” Is it rude to point out that the law recognizes no tort of that sort? [ABA Journal, MLive, Alex Stein/Bill of Health (background on Michigan med-mal law)] See also: Seth Lipsky, N.Y. Post (“astounding” suit menaces defendants for hewing to their view of spiritual truths).
Turned down by all 150 (or however many) Denver bakers in their quest for a wedding cake, this couple had no choice but to sue. Oh, not really: they had an endless supply of perfectly good alternative options, but they apparently wanted to make a point by suing, as did the ACLU which represented them. [Associated Press; earlier here, here, etc.]
I’ve got a new post at Cato asking how that could have come to be. Earlier on Elane Photography v. Willock here, here, etc.
Reacting to my Cato post, a couple of readers have responded, in effect: Isn’t the ACLU just a doctrinaire Left-liberal organization these days, rather than a bulwark of civil liberties? To which my answer is: I’d describe it as an organization with lively internal divisions, some factions of which push it in a doctrinaire Left direction, others of which want it to be more of a robust civil liberties organization. (As witness last year’s “Mayors vs. Chick-Fil-A” controversy, in which the ACLU of Illinois took a strong and clear civil libertarian stand while the ACLU of Massachusetts seemed to lean more toward a doctrinaire-Left position.) Some speak ironically of the “civil liberties caucus” that soldiers on thanklessly within the ACLU. I want to encourage that caucus and let it know it is appreciated. (& Stephen Richer/Purple Elephant, Coyote).
As I mentioned in my CNN piece on Friday, various voices are calling for the federal prosecution of George Zimmerman following his acquittal on state-court charges [commentary about that: Jonathan Adler, Jacob Sullum, Steve Chapman, Eugene Volokh; see also the update to my Friday post regarding the possibility of "hate crime" charges] In a letter to Attorney General Eric Holder, the American Civil Liberties Union (ACLU) takes the view that a federal prosecution would be improper double jeopardy, implicitly rebuking its own executive director, Anthony Romero, who had suggested otherwise in early comments to the press following the verdict [TalkLeft ("the organization came to its senses"), Politico, text of letter from Laura Murphy, director of ACLU Washington Office, PDF; see also David Bernstein]
As I noted in my CNN piece, the exception for “dual sovereignty” prosecutions arose in a 1959 Supreme Court case called Bartkus v. Illinois, decided 5-4, in which the dissenters were the four liberals: Earl Warren, William Douglas, Hugo Black and William Brennan. Here are a few things that Hugo Black had to say in his dissent, joined by Douglas and Warren: “Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization,” one that did not disappear “even in the Dark Ages.” And “retrials after acquittal have been considered particularly obnoxious, worse even, in the eyes of many, than retrials after conviction.” In short, “double prosecutions for the same offense” are “contrary to the spirit of our free country.” (& welcome Instapundit, InsiderOnline readers)
“Attention, liberals: The ACLU wouldn’t be able to sue the NSA if it weren’t for Citizens United.” [Wendy Kaminer, The Atlantic]
“Cranston Mayor Allan Fung says he’s ‘utterly disappointed’ the school district ended the gender-based events after the state affiliate of the American Civil Liberties Union sent a letter of complaint last spring.” [CBS Boston]
P.S. Or, to sum up in a different way: “It became necessary to destroy the village in order to make it more inclusive.” (& Alkon)
Lawyers from the American Civil Liberties Union (ACLU), as part of a wider campaign to pursue maximally feminist interpretations of Title IX, successfully litigate to prevent Quinnipiac University from naming competitive cheer as a varsity sport [American Sports Council "Saving Sports"] More: Richard Epstein on Title IX; background.
“Liberals ought to show the chief justice that we too can acknowledge a principle even when we don’t agree with the result.” [LA Times] Given how execrated the Citizens United decision is on the left, should we expect it to cause a rift in the ACLU, which supports it? [Wasserman, Prawfs]
The College Sports Council has recent reports from New York City, where both boys’ and girls’ squads have been sidelined following a New York Civil Liberties Union (NYCLU) suit over fall vs. spring scheduling (related earlier here, here, and here), and Kentucky, where quotas have prevented formation of a boys’ team.
It’s figured in our columns before, and now it’s in the news again: “The American Civil Liberties Union has sued a school board in North Carolina over its suspension of a teenage student for having a peridot stud in a nose-piercing.” [ABA Journal]
That’s a more controversial proposition than you might think; the Connecticut Supreme Court was split 5-2 in agreeing that a hearing was necessary to confirm the validity of a protective order against a defendant who has been accused but not convicted. The case pitted the state ACLU against the Connecticut Coalition Against Domestic Violence. [Connecticut Law Tribune via Amy Alkon]
The lead plaintiff in Alli v. Decker, an ACLU-led class action lawsuit aimed at preventing the deportation of various aliens who commit crimes, turns out to be a conman who played a role in a huge Nigerian-led identity theft scam. Reports the Times:
The news media campaign was all set to go. There was even a Web site ready with a sympathetic profile of Alexander Alli, 49, the man the American Civil Liberties Union had chosen as the lead plaintiff …Court documents tell the story of Mr. Alli’s life before his fall as a familiar tale of immigrant pluck, luck and hard work.
Well, yes, court documents prepared by his lawyers would tend to do that, while tending to downplay or omit the massive identity theft operation in which Mr. Alli was a participant, which extracted more than $50 million by impersonating and victimizing some 30,000 credit card holders: he “admitted to being personally responsible for $70,000 to $120,000 of the multimillion-dollar losses to banks and credit card companies”. Start deporting people like that, and where is our next generation of scam artists supposed to come from? [New York Times, Patrick at Popehat]
A long-running controversy pits some elected officials and townspeople of Framingham, Mass., west of Boston, against a social service agency that has proposed the town as a site for halfway houses and other residential facilities for recovering addicts, the homeless and others. Two years ago things turned particularly unpleasant:
…[South Middlesex Opportunity Council] filed suit in federal court this week demanding damages not just from town officials, but from citizens who have dared criticize the agency and challenge its plans.
SMOC’s 99-page complaint [which alleged violations of the Fair Housing Act, federal Rehabilitation Act, Americans With Disabilities Act and Civil Rights Act -- ed.] piles up charges against selectmen and planning board members not just in their official capacity, but as individuals. It targets town employees, both named and unnamed. It calls for damages against four Framingham Town Meeting members and two citizens for comments made on a private Web site and e-mails distributed on a privately-operated mailing list.
The ACLU of Massachusetts expressed unease at the naming of private citizens as defendants over their advocacy efforts. While the lawsuit has been narrowed somewhat in the two years since then, it continues to engender much acrimony as it drags on:
Aggravating the ill will is a recent revelation that a man charged with shooting a local police officer had lived in a home run by the agency, the South Middlesex Opportunity Council, or SMOC.