Friday, September 19, 2008

Since when is the ACLU against free speech?

The American Civil Liberties Union filed an official complaint on behalf of two gay men who were called names at a McDonald's in Louisville, Kentucky. The group has cited the city's "Fairness" ordinance as grounds for the complaint:

Louisville has a local human rights ordinance which prohibits discrimination on the basis of sexual orientation in public accommodations such as restaurants.

Now obviously the McDonald's in question has pretty low employment standards if they have a cashier who calls customers names--for whatever reason. But since when does the ACLU file complaints against someone's exercise of free (albeit hateful) speech? The ACLU has always defended any kind of expression on the grounds that, however distasteful it may be, it is protected under the First Amendment.

This is an issue that, if it involved any other issue than gay rights, the ACLU would be defending the McDonald's, not the two gay men. The ACLU has defended the Ku Klux Klan and the American Nazi party.

Either the ACLU is misinterpreting the Fairness Ordinance, in which case their complaint will have not effect, or they are interpreting it correctly, in which case the ordinance violates the First Amendment (at least according to the groups traditional interpretation). In either case, it makes you wonder why the group is going back on its previous commitment to free speech.

9 comments:

Anonymous said...

Just reading Mr Cothran's post, I see one clear difference. McDonald's is a large public company selling to the public. As such, they should treat most customers the same. There is a huge difference to me (apparently not to Mr Cothran) between a person's right to free speech on their own time and a person's responsibilities in a job which requires dealing with the public at large.

While the ACLU has defended the KKK and the ANP, that I would guess, is limited to their right to speech. If members of either group espoused their opinions as part of a job such as those at McDonald's, I doubt the ACLU would defend them. Perhaps a Google search is in order.

I didn't find anything right away (cases of workers criticizing KKK or ANP customers) but there is this:
http://www.politechbot.com/2007/06/08/aclu-replies-to/

...
Right now, the ACLU is challenging laws in several states designed to
ban picketing by anti-gay groups at military funerals.

...
The linchpin of Ms. Kaminer's misguided criticism is that the ACLU
failed to defend a high-school student in San Diego who was barred from
wearing an anti-gay T-shirt. In fact, the ACLU of San Diego has already
drafted a brief, due in federal appeals court next month, supporting the
free speech claims in that case.

The ACLU has defended the rights of speakers across the political
spectrum for almost 90 years. It still does and it always will.

Steven R. Shapiro
Legal Director, ACLU
New York



...
But in Aguilar v. Avis (1999), the ACLU argued that racial slurs aimed
at illegal aliens were not speech, but just a "verbal act." In that
case, it helped convince the California Supreme Court, in a 4-to-3
ruling, to uphold an injunction banning any racial slur in a private
workplace. ...

Hans Bader
Counsel for Special Projects
Competitive Enterprise Institute
Washington

...

So I suspect the real problem is that while the ACLU defends free speech, most of their members I would think disapprove of the KKK and ANP but not gays.

jah

Lee said...

I'm sitting here, having read jah's case, and trying to find a way to sound unconvinced politely.

What part of the Constitution specifies that individuals have a right to free speech except when slinging hamburgers at customers?

On the other hand, what part of the Constitution says people can say whatever they want at all times and not have to deal with the consequences?

I know it is oh so unfashionable, but what does the Constitution actually say? Not that I really want to suggest doing something that even the U.S. Supreme Court blanches at, but I'm afraid I must.

The U.S. Constitution specifies that Congress shall make no law abridging the freedom of speech. Doesn't say a word about McDonald's, or the local school system, or the evening news, or the state of Kentucky, or anyone but *Congress*. Therefore, if a McDonald's employee want to bait gays, the law of the land is mum. As long as Congress doesn't prohibit his baiting, everything is fine with the Constitution.

That doesn't mean it should be fine with McDonald's. You don't like the way McDonald's selects its employees? There is a simple solution: eat at Burger King. Ain't the marketplace grand?

And that doesn't mean it should be fine with Louisville or the state of Kentucky. As far as the Constitution is concerned, the state of Kentucky can institute political correctness at a Berkeleyan level, as long as it is not Congress doing it.

But it does underscore the hypocrisy of the ACLU, since they would be happy to defend McDonalds' if their employee had insulted conservatives.

Liberals do not believe in freedom of speech. They believe in their own freedom of speech. Ours is negotiable.

Anonymous said...

lee: I'm sitting here, having read jah's case, and trying to find a way to sound unconvinced politely.

No need to be polite, especially if it obscures your point.



lee: What part of the Constitution specifies that individuals have a right to free speech except when slinging hamburgers at customers?

[There's nothing in it about shouting "Fire!" in a crowded theater, AFAIK, to use an oft-cited example.]
But, huh? Constitution?

I didn't mean to make any claims about the Constitution. The point I was addressing was Mr Cothran's contention that the ACLU represented the gays because they were gay and implication that the ACLU would have chosen the other side if the employees were spouting KKK or ANP viewpoints. [MC: This is an issue that, if it involved any other issue than gay rights, the ACLU would be defending the McDonald's, not the two gay men. me: There is a huge difference to me ... between a person's right to free speech on their own time and a person's responsibilities in a job which requires dealing with the public at large.] Whether the ACLU should choose either side based on constitutional issues was not part of my post. The cases I referenced were to show that the position of the ACLU does seem to depend on whether the speech occurs during work or elsewhere.


lee: But it does underscore the hypocrisy of the ACLU, since they would be happy to defend McDonalds' if their employee had insulted conservatives.

Has this happened? Do you have any evidence to support this claim?

jah

Lee said...

> There is a huge difference to me ... between a person's right to free speech on their own time and a person's responsibilities in a job which requires dealing with the public at large.]

As far as the Constitution is concerned, what somebody says when he's flipping burgers is the same as what he says when he's holding court on his back porch. There is no distinction.

It should matter to McDonald's, and probably did, and does, and it should matter to the customers, but the Constitution is mum on that point.

Congress's only responsibility is to refrain from making laws that infringe freedom of speech. Not that they can manage that, i.e. the so-called Campaign Finance Reform bill.

The federal courts' only responsibility is to enforce federal law, which ought to be based on the Constitution.

However, if the state of Kentucky wants to outlaw such speech, the U.S. Constitution is okay with it if the legislature and courts of Kentucky are okay with it. The First Amendment doesn't prohibit Kentucky from infringing freedom of speech.

If the ACLU were a consistent defender of freedom of speech, they would be protecting this fellow. But liberals generally don't mind suppressing free speech in the name of P.C.

But it shouldn't be their business anyway, at least not in a legal sense. If they're filing it in federal court, it should be thrown out. It's none of the U.S. court's business what an employee of McDonalds says to a gay customer.

> Has this happened? Do you have any evidence to support this claim?

Sure. The ACLU considered it an affront to the First Amendment when Mayor Giuliani attacked the Brooklyn Museum of Art for displaying a dung-covered Virgin Mary. Giuliani's position was that the museum didn't have a right to offend Christians using government money.

Anonymous said...

repeat from my earlier post (in response to lee posting on constitution again responding to nothing i wrote



I didn't mean to make any claims about the Constitution. The point I was addressing was Mr Cothran's contention that the ACLU represented the gays because they were gay and implication that the ACLU would have chosen the other side if the employees were spouting KKK or ANP viewpoints. [MC: This is an issue that, if it involved any other issue than gay rights, the ACLU would be defending the McDonald's, not the two gay men. me: There is a huge difference to me ... between a person's right to free speech on their own time and a person's responsibilities in a job which requires dealing with the public at large.]


jah

Lee said...

jah, you say this:

> I didn't mean to make any claims about the Constitution.

...and then you say this:

> There is a huge difference to me ... between a person's right to free speech on their own time and a person's responsibilities in a job which requires dealing with the public at large.

And I'm asking where do you get that? What part of the Constitution defines some settings as private and deserving of free speech protection, and what part defines other settings as public and thus less deserving of free speech protection?

Obviously, my interpretation of the Constitution is not the mainstream interpretation -- namely, I think it means what it says. It says Congress shall not restrict free speech. Period. Though, by extension, it also means the executive branch of government as well, since their job is to enforce the law Congress makes, and also the Supreme Court, whose job it is to interpret the law Congress makes, and as well to adjudicate the boundaries between the states and the federal government.

But the point is the Constitution doesn't "give" freedom of speech to the citizen. It simply says that the federal government will not be allowed to restrict it. Doesn't say anything about the states, or the cities, or the school systems, or the hamburger joints.

So as far as I'm concerned, the ACLU can sue away.

But that's not the ACLU's interpretation in other areas. I think it's fair to point that much out. The same First Amendment says that Congress shall not make any law respecting religion or prohibiting the free exercise thereof, and yet the ACLU is all over state governments and local school boards for anything remotely Christian or Biblical, citing the bogus Supreme Court decisions which arrogated itself the power to restrict religious practices. Again, the First Amendment does nothing but restrict Congress.

Anonymous said...

It doesn't matter what the Constitution says.
The fact of the matter is that behavior acceptable in private lives has been been deemed unacceptable in business.
1) There can be more restrictive clothing standards at work than on the street or in a home.
2) I can choose to not associate with certain groups in my leisure time but I cannot refuse to sell my house or sell items in my store to them.

So there are many examples of different standards for business vs private life.

[In a side note, the same is true for lee's examples involving religion. It has been acceptable for private citizens to promote and exercise their religion, but it has not been acceptable for official agencies of the government to do so.]

jah

Lee said...

> It doesn't matter what the Constitution says.

That's certainly the way liberals and most Supreme Court justices look at it. However, I think it matters. "Deemed acceptable" or not, you really think it's any of the government's business what kind of honorifics a McDonald's employee says to a customer?

> The fact of the matter is that behavior acceptable in private lives has been been deemed unacceptable in business.

The question is not whether the behavior is acceptable. The question is who has the authority to make that decision decision?

> There can be more restrictive clothing standards at work than on the street or in a home.

Again, that's McDonald's decision, not the courts. Yet.

> I can choose to not associate with certain groups in my leisure time but I cannot refuse to sell my house or sell items in my store to them.

As far as the U.S. Constitution is concerned, the federal government had no right to step into that transaction.

> So there are many examples of different standards for business vs private life.

If the government is making business's decisions today, they will be making individual's private decisions tomorrow. If they haven't already. They're well past the first hurdle, which was the Tenth Amendment, which is nowadays meaningless. Having gotten this far, there is no logical stopping point in the Constitution that would prevent them. If I were to write a blog entry against gay marriage, all it would take is for an attorney to argue that I am involved in "hate" speech, and voila: political disagreements are henceforth criminalized.

> [In a side note, the same is true for lee's examples involving religion. It has been acceptable for private citizens to promote and exercise their religion, but it has not been acceptable for official agencies of the government to do so.]

Actually, there is nothing in the Constitution that prohibits, say, military chaplains or plaques with the Ten Commandments carved on them. Again, the Constitution says Congress shall make no law respecting religion, or prohibiting the free exercise thereof. That amendment was written while the military had chaplains, so apparently there was at one time some toleration of promotion of religion, depending on how that's defined. What actually happened was a tendentious reading of the First Amendment occurred.

And it hasn't stopped universities (government-funded) from foisting politically-correct brainwashing sessions on students to "sensitize" them towards Muslim students. Trust me, they are not nearly so solicitous of Evangelical Christians' tender feelings.

Lee said...

> It doesn't matter what the Constitution says.

That's certainly the way liberals and most Supreme Court justices look at it. However, I think it matters. "Deemed acceptable" or not, you really think it's any of the government's business what kind of honorifics a McDonald's employee says to a customer?

> The fact of the matter is that behavior acceptable in private lives has been been deemed unacceptable in business.

The question is not whether the behavior is acceptable. The question is who has the authority to make that decision decision?

> There can be more restrictive clothing standards at work than on the street or in a home.

Again, that's McDonald's decision, not the courts. Yet.

> I can choose to not associate with certain groups in my leisure time but I cannot refuse to sell my house or sell items in my store to them.

As far as the U.S. Constitution is concerned, the federal government had no right to step into that transaction.

> So there are many examples of different standards for business vs private life.

If the government is making business's decisions today, they will be making individual's private decisions tomorrow. If they haven't already. They're well past the first hurdle, which was the Tenth Amendment, which is nowadays meaningless. Having gotten this far, there is no logical stopping point in the Constitution that would prevent them. If I were to write a blog entry against gay marriage, all it would take is for an attorney to argue that I am involved in "hate" speech, and voila: political disagreements are henceforth criminalized.

> [In a side note, the same is true for lee's examples involving religion. It has been acceptable for private citizens to promote and exercise their religion, but it has not been acceptable for official agencies of the government to do so.]

Actually, there is nothing in the Constitution that prohibits, say, military chaplains or plaques with the Ten Commandments carved on them. Again, the Constitution says Congress shall make no law respecting religion, or prohibiting the free exercise thereof. That amendment was written while the military had chaplains, so apparently there was at one time some toleration of promotion of religion, depending on how that's defined. What actually happened was a tendentious reading of the First Amendment occurred.

And it hasn't stopped universities (government-funded) from foisting politically-correct brainwashing sessions on students to "sensitize" them towards Muslim students. Trust me, they are not nearly so solicitous of Evangelical Christians' tender feelings.