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Thursday, March 12, 2015

Maybe the ACLU has given up on free speech

Via Ron Collins at CoOp, here are two statements from the leadership of the Oklahoma ACLU, applauding the president's decision to punish the students, but calling on him to ensure that the students receive due process. No mention of the First Amendment.

Posted by Howard Wasserman on March 12, 2015 at 07:33 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink

Comments

Multiple instances are provided, including (after one press release that "only" spoke of due process, which by ACLU's lights, includes substantive rights) this very case where the ACLU is arguing for free speech, including by judicial action. But, not enough "passion" is provided since they also strongly oppose racism. That isn't what free speech means to me. Voltaire's alleged line about defending the person and hating the message apparently is a sham unless you do so privately.

Posted by: Joe | Mar 14, 2015 11:39:34 AM

Sam,

While the ACLU defends Snyder's right to name the team whatever it wants, it also routinely criticizes his choice. If you look at their post "Why Redskins is Wrong," it's basically "This is racist. Racist and vile. Super racist. But it's legal. Also, really racist. Why do this? It's so racist. Racist. Racist. Racist." Even in their amicus brief, the ACLU says it's probably "outright racist."

In their article "Redskins Wrong, But Racist," they write "The ACLU, one of the oldest racial justice organizations in the country, has an institutional obligation to call this stuff out when we see it."

I think Howard's gut reaction may be right. They might agree you have the right, but they don't seem to be defending it with much passion.

Posted by: Derek Tokaz | Mar 14, 2015 10:34:44 AM

I think you're giving too much weight to a press release about a matter in which neither the state affiliate or national is directly involved in. Meanwhile, there seems to be no weight given to the fact that, in the past few months, the ACLU has filed amicus briefs supporting the free speech rights of 1) an organization trying to get Confederate flag-themed license plates and 2) the Washington Redskins.

Posted by: Sam | Mar 13, 2015 2:53:22 PM

"Absent information that is not at our disposal, it is difficult to imagine a situation in which a court would side with the university on this matter."

Yes, saying it is "difficult to imagine" how a court won't find what the university did is unconstitutional shows "some awareness."

I get the concern, really, but the events are ongoing -- it is not like the ACLU waited and waited to clearly raise speech concerns & warn the university. However tepid the first reaction was -- the press release is time stamped mere hours after the expulsion so who knows when it was actually written -- the very next day and then a day or two later there was a pretty clear warning.

Posted by: Joe | Mar 13, 2015 12:55:04 PM

"Absent information that is not at our disposal, it is difficult to imagine a situation in which a court would side with the university on this matter."

Yes, saying it is "difficult to imagine" how a court won't find what the university did is constitutional shows "some awareness."

I get the concern, really, but the events are ongoing -- it is not like the ACLU waited and waited to clearly raise speech concerns & warn the university. However tepid the first reaction was -- the press release is time stamped mere hours after the expulsion so who knows when it was actually written -- the very next day and then a day or two later there was a pretty clear warning.

Posted by: Joe | Mar 13, 2015 12:54:30 PM

It certainly isn't what I would have expected or hoped for, even if it could technically be read as pro-free-speech via incorporation.

Posted by: brad | Mar 12, 2015 11:27:36 PM

It's not unheard of for local ACLU chapters to take knejerk left wing positions only to have the national office gently remind them that the organization's views on free speech are not supposed to be content dependent.

Posted by: PaulB | Mar 12, 2015 8:05:55 PM

Yeah, but no one talks that way, especially in a press release. The later press releases show at least some awareness of the underlying free speech concerns. And "will appropriately respond to new details as they emerge" seems awful tepid--based on everything we now know (which is everything Boren knows), this should be constitutionally protected. So it is disappointing that this is not the ACLU's starting point.

Posted by: Howard Wasserman | Mar 12, 2015 8:02:01 PM

Did you read the later press releases?

One the next day that is cited as a statement on the expulsion:

"The best antidote to hateful speech is the exercise of peaceful speech in return."

"The University of Oklahoma has an opportunity to engage in just such a dialogue, and we need to ensure that we don’t miss that opportunity in the rush to punish racist speech."

Then, on 3/12:

"As a state-run institution of higher education, the University of Oklahoma must also respect First Amendment principles that are central to the mission of every university. Any sanction imposed on students for their speech must therefore be consistent with the First Amendment and not merely a punishment for vile and reprehensible speech; courts have consistently and rightly ruled as such. Absent information that is not at our disposal, it is difficult to imagine a situation in which a court would side with the university on this matter. We are closely monitoring the situation and will appropriately respond to new details as they emerge. In the meantime, we stand in solid support of the brave and thoughtful students whose public dialogue on race and the rights of all minority students in response to the incident have embodied the spirit of the First Amendment."

Maybe not. "Due process" is mentioned in the first press release. If one wants to be only a bit pedantic, the very way free speech is protected in a STATE institution is via the "liberty" aspect of the 14A Due Process Clause.

Posted by: Joe | Mar 12, 2015 7:54:01 PM

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