Thursday, June 21, 2012
Corporations = Skokie Nazis?
No, the title is not an attempt to violate Godwin's Law.
Back in March, the ACLU issued a statement defending Citizens United and opposing efforts to amend the Constitution to overturn that decision. Although old, that statement is getting renewed attention with the introduction this week of a constitutional amendment (proposed by California Democrat Adam Schiff) overturning the decision and seeking to carve campaign finance out of the First Amendment. This is only the latest proposal.
The ACLU statement has lead to surprise in some circles (including on a list serv for con law types) that a group that "leans strongly left" such as the ACLU would oppose the amendment, the suggestion being that any such amendment must be a bad idea if even the crazy lefties at the ACLU are against it. We can debate whether the ACLU leans strongly left as an overall matter. But the suggestion that it only protects left-leaning viewpoints in First Amendment disputes is, in overwhelming part, wrong. Particularly on campaign finance, where the ACLU has filed amicus briefs in opposition to the regulations in most of the recent cases.
The ACLU's position triggered another thought: Where does its membership generally stand on Citizens United and how is the organization's position (on the decision and on any amendment) playing? The ACLU's famous defense of the Skokie Nazis in the late '70s is looked on as a high-water mark of free-speech principle-- defending deplorable speech you absolutely hate. But at the time, it resulted in canceled memberships and a scramble by the national and local chapters to explain the position and calm angry members. Might the defense of CU (and opposition to efforts to undo it) trigger similar outrage among its members? Or will this fly more under the radar with members, since the ACLU is not at the public forefront of either the CU litigation or the opposition to any amendment?
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My very third-hand impression from casual conversations with some ACLU insiders is that the ACLU is quite divided right now between two factions. The faction that might be described as the "liberal" or "civil libertarian" group is still in control at the national level, but it is being pressured by a substantial minority that might be described as the "progressive" or "civil rights" faction. The liberal faction maintains the ACLU's traditional more-or-less absolutist position on free speech. The progressive faction stakes out a less protective position in certain areas, including, for example, campaign speech and hate speech. There are similar divides with respect to the interaction of free association and anti-discrimination laws.
Like I said, I am not an ACLU insider, so I would be very interested to hear if my impressions are accurate. Also, my understanding is that the relative strength of the two factions is quite different in some state chapters.
Posted by: Anonymous Outsider | Jun 21, 2012 10:30:38 AM