hey can we please stop citing the aclu as a like, a good organization
Alright y’all, actual lawblr here to jump in and tell you that the ACLU is, like, a good organization.
The right to free speech is enshrined in our Constitution. That means that everyone, everyone, has that right. It is a cornerstone of Constitutional Law that you cannot, cannot, CANNOT pass a law banning someone from speaking based on their viewpoint. This means that the right to free speech protects that which we find disagreeable, or even reprehensible.
If you would actually, idk, read those links, it would say that the ACLU used the exact same legal arguments defending neo-nazis that it did defending pro-civil rights protestors during the civil rights era. These are also the same legal arguments that protect all protestors currently around the country.
You cannot, cannot, cannot support your right to free speech and protest but not someone else’s.
Protest against them, call them assholes, do whatever you want, but everyone has that right.
The American Civil Liberties Union is committed to defending that right to free speech, that civil liberty, no matter who is speaking.
In order to uphold the right to free speech for everybody, somebody somewhere had to take a bullet to their reputation and defend neo-nazis. If the law prohibiting neo-nazis from speaking were allowed to stand, that would set a legal precedent that would allow laws prohibiting any other protestors based on their viewpoint. The ACLU stepped up because they saw the BIG PICTURE.
Here’s a list of arguably gross things the Supreme Court has said you can do because of the right to free speech:
Wear a shirt that says “fuck the draft” in a government building, Cohen v. California, 403 U.S. 15 (1971).
Burn the American flag, Texas v. Johnson, 491 U.S. 397 (1989).
Actually Imma stop there because you can just google “free speech cases” yourfuckingselves.
The same laws that say you can burn flags and tell the government to fuck itself protect neo-nazis, and in order to protect the line of cases that say you can burn flags and tell the government to fuck itself, somebody had to defend the neo-nazis. The ACLU took that bullet.
I leave you with Justice Kennedy’s beautiful and famous concurring opinion from Texas v. Johnson where he joined the court in striking down a ban on flag burning, which was something he personally found gross:
The case before us illustrates better than most that the judicial power is often difficult in its exercise. We cannot here ask another Branch to share responsibility, as when the argument is made that a statute is flawed or incomplete. For we are presented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours.
The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.
But whether or not he could appreciate the enormity of the offense he gave, the fact remains that his acts were speech, in both the technical and the fundamental meaning of the Constitution. So I agree with the Court that he must go free.
In conclusion, take your black-and-white, you-are-either-good-or-evil, they-did-something-bad-once-and-so-are-
bad-forever attitude and GROW THE FUCK UP.
THE WORLD EXISTS IN GRAY AREAS AND SO MUST THE LAW IN ORDER TO PROTECT EVERYONE.
Beautifully put. And for those, who still take issue with the grey scale mentioned here, let me add this:
When you study law, there will inevitably come a day, when you have to ask yourself (or will be asked by a friend, acquaintance or relative), “But would you defend a rapist/paedophile/Hitler)?”
And when that day comes, you have to think very carefully, because our legal system has among it’s very basic tenets that EVERYONE has the right to legal representation when accused of wrongdoing. Because until a court or a jury has decided that a person is guilty, another tenet of our legal system provides that they will be assumed innocent.
And, like it or not, if someone is in a situation where they are accused of wrongdoing, they NEED access to a lawyer, because law is an ancient process that is conducted in a language and follows rules that most people do not fully understand or have access to. So, as I tend to tell my students, lawyers are translators as much as they are advocates.
But that right of legal presentation will be eroded to the point of non-existence, if there are no lawyers willing to represent those accused of rape/child abuse/hate crimes/[insert your own squick here]. And if we ask, or even allow, lawyers to say no to cases that offend their own or others’ sensibilities or if we condemn them for taking on those cases, we may as well do away with our courts and our justice system because we are essentially asking those lawyers to pre-judge someone’s guilt or innocence before they have even been tried.
So on that day in Law School when you or someone else asks you that question, you either answer “Yes. Yes I would!” or you get the fuck out of Law School and find another job.
There is no doubt that my profession has its fair - maybe even its disproportionately high - share of scumbags. People use their legal training and benefit from their unique knowledge in different ways and it’s not always pretty. But as someone, who has dodged that particular bullet by fleeing into teaching and research, I will never judge a practitioner for taking on a client, who is a accused of an action that is repulsive to other members of the public. Because they are making difficult decisions on a daily basis that I am so incredibly glad I don’t have to make but that I know NEED to be made to protect the system that protects all of us.
So in the same way that I believe that a system of human/fundamental/civil rights only works if those rights apply to ALL OF US - including the people I disagree with - I believe that the legal process needs to apply to everybody, lest we descend into mob rule.
And there is another reason to believe in “equality of process”. If a process is the same for everyone, then everyone will know when it is being violated. A violation of judicial process is a red flag in any legal system that shows us that something is going seriously wrong in our democracy and that the balance of power between the different branches of government is about to be skewed. And knowing about it, we can (try to) do something about it.
So, to take this into the current scenario, if it were true that individuals at US airports that are being detained under Trump’s Muslim ban order were being denied access to a lawyer, then we all know that this is an unjust and unlawful violation of an existing court order that is potentially the first sign that we are not just faced with a chaotic and incompetent new administration but with one that clearly has unconstitutional malignant intent. And we can react accordingly.
But if someone’s right to access to a lawyer could be conditional, based on whether or not a majority of the people believe that those people deserve a lawyer a in the first place, then the border guards could easily argue (as, it seems, some already do) that this is one of those cases in which an exception to the rule of legal representation applies,. And in that case none of us would be any the wiser if this means that those guards’ behaviour is still lawful or if we are watching the beginning of a full-blown fascist coup.
Or to put it another way, if we allow the idea to take root that civil rights and access to legal representation should be subject to conditions to be determined by the electorate and it elected representatives, then - in the current climate - those airport detainees as well as many of us, who are out there right now, protesting and resisting, could very quickly find ourselves in a position where conditions are put in place that deny those rights and that access to us, and where we could quickly be subject to an arbitrary legal system without anybody explaining its rules or fighting our corner. http://ift.tt/2fDMuTu
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