Critics of the ACLU
The ACLU's involvement in hundreds of legal cases over the years has led to a great deal of criticism from numerous points of view. In many situations, the criticism may be focused on the ACLU's stance in a particular case or group of cases; in others, the criticism focuses on the general principles that guide the ACLU's choices of what cases to take a position on.
A wide variety of groups oppose some or all of the ACLU's positions listed above; several general themes of criticism are discussed here.
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Conservative critics
Many critics of the ACLU consider themselves, or are commonly regarded as, conservatives. Such critics often allege that the ACLU does not truly dedicate itself to the defense of constitutional rights, but that it seeks to advance a Leftist or liberal agenda (see, e.g., [46], [47]). Some point to its opposition to capital punishment, which has been declared constitutional by the Supreme Court of the United States since 1976, although it had been declared unconstitutional in practice from 1972 to 1976. The ACLU continues to argue that the death penalty violates the Eighth Amendment restriction against "cruel and unusual punishment," the Fourteenth Amendment guarantee of equal protection, and that it is contrary to international human rights norms.
The 1980 Polovchak v. Meese case is also sometimes considered evidence of liberal sympathies on the part of the ACLU. Walter Polovchak was a 12-year-old from Ukraine (at that time part of the Soviet Union) visiting the United States with his parents. When his parents were returning to Ukraine, he tried to stay in the U.S. and claim political asylum against the wishes of his parents. The ACLU attempted to block him from doing so. In 1999 the Florida chapter of the ACLU referred to the ACLU's role in the Polovchak case in their brief for the Elián González case.
Critics also argue that the ACLU has not been consistent in defending all civil liberties, pointing out that it is not active in protecting gun rights. Critics claim gun rights enjoy similar constitutional protection to other civil rights and should be treated equally by the ACLU if it is not motivated by a partisan agenda. The organization declares itself officially "neutral" on the issue of gun control, pointing to previous Supreme Court decisions such as United States v. Miller to argue that the Second Amendment applies to the preservation or efficiency of a well-regulated militia, and that "except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected." [48] Some contend that, unlike the First Amendment, the Second Amendment does not provide individual rights. The courts have made conflicting rulings on the topic.
Some critics argue that this position is inconsistent with their stated philosophy, and have suggested that the ACLU may only adopt this stance to appease liberal-leaning supporters of the group who also support gun control. Critics also point out that the ACLU does not take up cases that involve possible abuses by the ATF that go beyond the debate over the private ownership of firearms. [49] The ACLU has been involved in a few gun rights cases; most recently the ACLU of Texas joined with the NRA in favor of a proposed Texas law, HB 823, in 2006, and claiming that current legislation allowed for the harassment of gun owners [50].
In 1982, the ACLU became involved in a case involving the distribution of child pornography (New York v. Ferber, 458 U.S. 747 [51].) In an amicus brief, the ACLU argued that the New York state law in question "has criminalized the dissemination, sale or display of constitutionally protected non-obscene materials which portray juveniles in sexually related roles," while arguing that child pornography deemed obscene under the Miller test deserved no constitutional protection and could be banned [52]. The ACLU's stance on this case has drawn great criticism from conservatives [53]. In a 2002 letter, the ACLU stated that it "opposes child pornography that uses real children in its depictions," but that material "which is produced without using real children, and is not otherwise obscene, is protected under the First Amendment." [54].
The group has also come under fire, again mostly from conservative critics, for fighting against Megan’s Law, a law whose supporters say protects children from sex offenders. Though the ACLU has fought Megan’s Law(s) in many states, it has been unable to attain significant victories in these cases.
Bill O'Reilly has frequently and variously referred to the ACLU as "the most dangerous organization in America," a "terrorist group," and as an "anti-American" and "fascist organization" on his various broadcasts, during which he frequently criticizes the group.[55][56]. In "Profile in sanity" [57], for instance, he suggests basic hypocrisy is at hand when he points out that "the New York Civil Liberties Union (NYCLU) sued when the NYPD instituted random bag searches on the subway. Yet a sign at the NYCLU building warned that the organization had the right to search the bags of all people entering there."
Michael Medved has referred to the ACLU sarcastically as the "American Criminal Lawyer Union," due to its frequent stances defending the rights of the accused and convicted. The construction of alternative backronyms is something of a sport; others invented by critics include "American Communist Lawyers Union" [58]. The group "Stop the ACLU" ran a backronym contest [59]. The thirty entries variously implied that the ACLU was atheist, Communist, lesbian, aligned with Lucifer, or overly litigious. The most frequent assertion, made in a plurality of eleven entries, was that the union was anti-Christian.
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Religious critics
The ACLU also has religious critics. At the grassroots level, the ACLU often involves itself in cases involving the separation of church and state. Some Christians, including many who may be considered conservative Christian, take issue with its positions. Many in this community contend that the ACLU is part of an effort to remove all references to religion from American government.
In 2004, for example, the ACLU of Southern California (ACLU/SC) threatened to sue the city of Redlands, California if it did not remove a picture of a cross from the city's seal. The ACLU/SC argued that having a cross on the seal amounted to a government-sponsored endorsement of Christianity and violated separation of church and state. The city complied with the ACLU/SC and removed the cross from all city vehicles, business cards, and police badges. However, the issue was put on the November 2005 ballot [60]. The ACLU/SC also threatened Los Angeles County, California if it did not remove an image of a cross from its seal, yet the centerpiece of the Pagan goddess Pomona was not mentioned. As in the Redlands case, the county board complied with the demands and voted to remove the cross and Pomona from its seal as well. There was a petition against the changing of the seal, which ended on August 15, 2005 [61].
In 1990, Pat Robertson founded the American Center for Law and Justice, as a counterweight to the ACLU, which Robertson characterizes as "liberal" and "hostile to traditional American values." Another non-profit legal center, the Thomas More Law Center, also describes itself as "Christianity's answer to the ACLU." [62]
After the September 11, 2001 attacks, the Rev. Jerry Falwell remarked that the ACLU, by trying to "secularize America," had provoked the wrath of God, and therefore caused those terrorist attacks. Falwell later apologized for the remark. Other critics of the ACLU do not make such strong accusations, but claim that the organization pushes the concept of separation of church and state beyond its original meaning.
On the other hand, the ACLU and Jerry Falwell sometimes find themselves on the same side. Notably, the ACLU filed an amicus brief supporting a suit by Falwell against the state of Virginia. The suit, which was successful, overturned the Virginia constitution's ban on the incorporation of Churches. In addition, the ACLU has defended the right of a Christian church to run anti-Santa ads on Boston subways, the right to religious expression by jurors, and the right of Christian students to distribute religious literature in school. [63]
While the ACLU does oppose the use of crosses in public monuments [64], [65], there have been false allegations that the ACLU has urged the removal of cross-shaped headstones from federal cemeteries and has opposed prayer by soldiers; such charges have been deemed to be urban legends. [66]
Many minority religious groups like Jehovah's Witnesses and Muslims have at times been defended by the ACLU. In the Mormon community, the ACLU is viewed positively by some, who cite Santa Fe Independent School Dist. v. Doe, a case litigated by the ACLU on behalf of a Mormon student concerning school prayer [67]. However, a good number of Mormons, including some local leaders, are strongly against the activities of the ACLU [68].
Jehovah's Witnesses were involved in twenty-three Supreme Court rulings between 1938 and 1946 over religious objections to serving in the armed forces and over saluting the flag and reciting the pledge of allegiance [69], over local and state ordinances prohibiting the Witnesses from publishing criticisms of the Roman Catholic church [70], as well as over government reluctance to prosecute anti-Witness vigilantes. The ACLU was directly involved in these cases [71]. The ACLU's involvement with Jehovah's Witnesses continues, and they joined the Witnesses in a 2002 case over doorbell-ringing [72].
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Feminist critics
Some anti-pornography activists, including Nikki Craft and Catharine MacKinnon, who oppose pornography on feminist grounds, are also strong critics of the ACLU; in her lifetime, Andrea Dworkin's positions on pornography also led her to similar stances. Craft started a group in the early 1990s called "Always Causing Legal Unrest (ACLU)"; the resultant acronym confusion led the then-director of the ACLU of Northern California Dorothy M. Ehrlich to send a letter of protest [73], but the Union did not pursue legal action against Craft's group.
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Leftist and liberal critics
The ACLU has been subject to criticism from the political left. Some critics object to the organization's advocacy for corporations' protection by the Bill of Rights known as corporate personhood. [74] [75] In contrast to the ACLU's position, the National Lawyers Guild passed a resolution in October 1996 which opposed corporate personhood. [76]
In addition many leftists, including the Spartacist League (modern) and Liberation News (Internationalist), criticize what they see as a stronger willingness on the part of the ACLU to defend the civil liberties of groups such as the KKK and the American Nazi Party. [77] This perception of the police can be seen in a League for the Revolutionary Party statement that preceded an anti-Klan demonstration in New York City:
"As they have done in the past, the cops will aim to keep us under their control and far from the fascists whom they aim to protect. In city after city, every time the fascists rear their ugly heads, the cops are there with their guns and batons turned against us...."[78]
In October 1999 the Spartacist League organized a demonstration against a KKK rally in New York and listed amongst the obstacles placed in their way "the American Civil Liberties Union, which continued its revolting decades-long defense of 'constitutional rights' for the fascist terrorists." This was in reference to the lawyer for the KKK, Norman Siegel of the New York ACLU, that brokered a deal allowing the KKK to march with police protection and a sound permit, but denied even a sound permit for the labor/black mobilization against the Klan.[79] Under political pressure that deal was later struck down and the sound permit was allowed.[80]
In contrast to the ACLU, Partisan Defense Committee attorney Rachel Wolkenstein declared, "The response to our call for 'All Out to Stop the KKK on October 23!' has resonated among thousands of outraged New Yorkers who intend. . . to let these killers know that there is no way they are going to rally in this city."[81]
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Libertarian critics
While some refer to the ACLU as a libertarian organization and while the ACLU has defended the US Libertarian Party in some cases [82], a number of libertarians and Objectivists oppose the ACLU for its support of laws that they view as distinctly anti-liberty, such as affirmative action and anti-discrimination laws that apply to private property. One objection held by some libertarians is the belief that private business owners, rather than the government, should have the authority to decide which customers they serve and which employees to hire, even if these private business owners choose to base criteria on such things as race or gender.
Former ACLU member Nat Hentoff has criticized the organization in a libertarian vein for promoting affirmative action and for supporting what he sees as government protected liberal speech codes enacted on college campuses and the workplace [83].
Law professor David Bernstein's book "You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws" takes the ACLU to task for frequently seeking to undermine expressive rights when they conflict with antidiscrimination laws, as in the 2000 Supreme Court case of Boy Scouts of America v. Dale. Some libertarians have formed an organization they describe as the "libertarian ACLU" [84] the Institute for Justice.
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