The ACLU's influence on the 1st Amendment -- A perspective 20080416

ACLU, Your patience has paid off - From free speech to brain washing

The ACLU has dominated our 20th century understanding of our 1st amendment rights regarding speech and religion. The following examination of the ACLU's website provides detailed documentation of how tremendously successful they have been in persuading our courts to their interpretation of the 1st amendment. By the 21st century, freedom of speech had expanded to include obscenities, treason, and even actions; "hateful" speech had been outlawed; and "hateful" thought could earn one a few years in prison. Freedom of and for religion had become freedom from exposure to religion. Resistance to the ACLU's agenda had also increased and become, for the first time, well organized, well funded, sophisticated and broadly appealing. Whether the ACLU's efforts to date have been seeking an end envisioned long ago or simply an evolution, their impact has been remarkable.

The 1st Amendment to the Constitution of the United States of America

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Objective

the author is not trained by the law

Methodology

This examination of the ACLU's history with the 1st amendment is based primarily on information published by the ACLU on their website. After an exhaustive search, all of the 1st Amendment cases pertinent to this examination which they've featured prominently on their website were identified and researched. Beginning with their The Successes of the American Civil Liberties Union (2/25/2003) page which contained the "ACLU's 100 Greatest Hits (Landmark Supreme Court decisions in which the ACLU played a major role, either as counsel or as a friend-of-the-court.)" the 35 cases regarding free speech were reviewed and 9 of them were analyzed in detail. Next, from their Newsroom page, the 200 press releases (5-21-2007 to 9-25-2007) accessed via the View All link at the beginning of the list were reviewed, and 13 of them were analyzed in detail. Then 193 press releases (5-24-2002 to 8-13-2007) from their Religion and Belief Section accessed via the View All link were reviewed. Finally, the remaining 300+ press releases grouped into 5 subdivisions under the heading "IN THIS SECTION" were reviewed. The first set of cases examined here are found on the 100 Greatest Hits page, while those dating 2000 and later are found in their various press releases.

The ACLU

On their "About the ACLU" page, they summarize their mission and history:

The ACLU's Promising Start: Gitlow v. New York 1925

In one of the century's most significant cases, Gitlow v. New York 1925, the US Supreme Court ruled that the 14th Amendment's rights of Due Process and Equal Protection "incorporate" the 1st Amendments free speech clause.  As the ACLU summarizes the case:

This meant that the free speech protections derived from the Constitution applied to all the states as well.  This was an extremely significant ruling; no longer could one argue that "those restrictions apply to actions of the federal government only, and nobody else, especially not the states".  From then on, all questions regarding free speech would be decided within the framework of the Constitution's 1st Amendment's free speech clause, and become the Law of the Land.

This was the first time the Supreme Court used the 14th Amendment to rule that a protection against the federal government, as enumerated in the Bill of Rights, now applied to state governments as well.  Over the next 80 years, the Court would use it to apply most of the Bill of Rights to the states.  The notable exception is the 2nd Amendment.

In the 1927 Whitney v. California and 1931 Stromberg v. California Supreme Court cases, in keeping with the best traditions of the ACLU, they secured speech protection for those advocating the violent overthrow of the government.

The ACLU Begins Their Peculiar Interpretations of Supreme Court Decisions

Lovell v. Griffin 1938

In Lovell v. Griffin 1938, which struck down a municipal ordinance requiring written permission before distributing literature, the ACLU describes the decision as

The appellant did include an appeal to the religions clause of the 1st Amendment as summarized by the court in their opinion

However, the Supreme Court's opinion made it clear that they ignored the religion clauses, addressing solely the freedom of the press 

The ACLU's erroneous summarization of the court's decision in this case is so far from the truth that this author is forced to conclude it was intentional.  In their description of the opinion, the ACLU clearly implied that if the speech in question was of a religious nature, the free speech and press clauses do not apply; only the religious liberty clauses.  At this point, the ACLU apparently believed that any issues involving religious speech are controlled by the religion clauses of the 1st amendment, and not the speech and press clauses.

The consequences of this belief have become clear - religious speech is not entitled to any of the 1st amendment protections of speech and the press; it has only whatever religious protections and/or restraints as are provided for under the religion clauses. This principle was to become the law of the land 54 years later in Lee v. Weisman.

Additionally, the acceptance of this distinction, that religions speech was not speech at all as understood under the speech and press clauses of the 1st amendment, was a necessary condition for the ACLU's eventual assertion that Religious Freedom demands no religious speech at all.

Terminiello v. Chicago 1949

In the famous Terminiello v. Chicago 1949, [998] case, Justice Douglas delivered the court's opinion which introduced the test of a "clear and present danger";

In the opinion of the court, the case concerned only the free speech clause of the 1st amendment, regarding "fighting words" and other types of exciting speech.

In stark contrast, the ACLU summarizes the court's opinion

Unlike the previous example of Lovell v. Griffin, this summarization of the opinion is correct in all essentials. Unfortunately, it is also a good example of a presentation of the truth which begs incorrect assumptions. By beginning their summary with "In this exoneration of a priest ...", the ACLU clearly implied that the case is controlled by the religion clauses in the 1st amendment.

Yet, the Supreme Court's opinion took absolutely no notice of the fact that the appellate was a priest, or of the details of what he said; no notice of anything religions.  As the court's syllabus shows:

The ACLU correctly reports the words of Justice Douglas, but he went much farther than they imply:

Regardless of how the ACLU originally described this case, and in light of events occurring in the 1st decade of the 21st century, this appears to be a blatant ploy to present themselves as a defender of the 1st Amendment religion clauses.

Steady Progress 1949-1978: From Terminiello to Smith v. Collins

The ACLU's 100 Greatest Hits contains a few dozen "successes" in the 29 years between Terminiello and Smith; 17 involving the 1st Amendment, none of which were brought under the religion clauses. Compared to their astonishing victories before and since, it was a relatively unremarkable period.  Nevertheless, they continued to broaden the list of non-religious activities protected by the 1st Amendment, while pressing their case that religious activity should be controlled solely by the 1st Amendment's religion clauses. It's important to note that these activities were not merely made legal or illegal; they were made Constitutional and un-Constitutional. A representative sample of these cases:

B Made loyalty oaths illegal in 1964

B Broadened protections of defamation in 1964

B Expanded protections of obscenities via various cases -- including the infamous Jacobellis v. Ohio case where Justice Potter Stewart said that while he couldn't define "obscenity", "he knew it when he saw it", in 1964

B Made foreign communist political propaganda legal in 1965

B Made flag desecration legal in 1969

B Protected "heckler's vetoes" in 1969

B Protected Presidential death threats if they are merely political hyperbole in 1969

B Made cussing legal in 1971

B Created the "right not to speak" in 1977

During this period, the ACLU also:

B Required the Authorities to notify the organizers if their rally was banned, 1964

B Expanded the free speech rights of students, 1969

B The ACLU declares "... victory in its 50-year struggle against laws punishing political advocacy," 1969

B Limited governmental prior restraint on speech and press, and allowed the publication of classified information with the famous Pentagon Papers case in 1971

The Nazis' March: The Horribly Correct Ruling in Smith v. Collin 1978

In what is probably the most well known of ACLU cases, Smith v. Collin 1978, they report that

At the time, the ACLU was rumored to have lost half its membership in protest against their position. And there were those, including this author, who lauded them for their ugly and necessary work. In any case, it was one of the defining moments of the Civil Rights era in America.

Of particular interest to this examination is the ACLU's complete description:

The 3rd sentence begins "In re Primus..." meaning 'Regarding the Primus case..." -- Edna Smith Primus was the appellant. The following sentences describe, not Smith v. Collin, but the Primus case; a completely separate case.  This concatenation of case descriptions could be accidental; the only accidental 'concatenation' this author found in some thousand odd ACLU web pages. In light of future ACLU activities, this author believes it is an attempt to confuse the reader and distance themselves from a case that might later be seen as supporting "hate speech" which the ACLU is currently criminalizing as shown below. 

NOTE: This author encountered a dearth of information on the web covering Smith v. Collin compared with the comprehensive information easily available on the other cases; perhaps because the Supreme Court didn't actually rule, only declined to review a lower court's ruling.  Perhaps something else?

This case was followed by three more that: allowed the distribution of political pamphlets in shopping malls in 1980; required school libraries to stock books that were found to be inappropriate in 1982; and another Flag Desecration case in 1989.

R.A.V. v. ... Who Exactly? 1992

One of the ACLU's 100 Greatest Hits is posted as:

Unfortunately, this author's Google search found no such case as R.A.V. v. Wisconsin because the case is actually R.A.V. v. St. Paul. Although quite technical, this ruling seems to protect the type of 'hateful' speech the ACLU is currently vociferously opposed to. Consequently, this naming error may be a deliberate attempt to mislead the readers and divert their attention away from rulings protecting 'hateful' speech.

Religion and Speech Are (Finally?) Severed: Lee v. Weisman 1992

It is this author's conclusion that the opinion wrested from the Supreme Court in Lee v. Weisman is the ADLU's most momentous1st amendment victory to date. The ACLU modestly describes the case:

Once again, the ACLU's description of a case is curious. Here the ACLU dissembles much more so than they did in both Lovell v. Griffin and Terminiello v. Chicago. (It is probably just an oversight that the ACLU erroneously reports that the case was brought because of activities at a "high school" when the ceremony actually occurred at a middle school.)

The Court reproduced the prayer in its entirety in their opinion:

In this speech, the name God is used 2 times, the title Lord was used 1 time, and was referred to 8 times. Obviously, the content of this speech is partially religious in nature; that is what made it illegal. 

If Gutterman had ranted obscenely, he would have had nothing to fear from the law, for obscene speech is protected by our Constitution. He could have vehemently defamed a public figure, for slanderous speech is protected by our Constitution. He would have been protected if he had promoted vicious foreign propaganda, even to the utter destruction of the United States. Even using that forum to make deadly threats, even advocating particular violence to his audience; all these types of speech and more, are legal and protected by our Constitution.  But when the word "God" was spoken, he was committing a crime - an Unconstitutional crime at that.

Hate Becomes a Crime - Step 1: Wisconsin v. Mitchell 1993

The ACLU's summary of Wisconsin v. Mitchell:

This was a controversial case, which in this author's opinion produced convoluted reasoning in the court's decision.  Many were surprised to learn that R.A.V. v. St. Paul was not the final word that 'hate speech' was constitutionally protected.  Perhaps the Anti-Defamation League (ADL), thought so:

From this author's perspective -admittedly currently manifestly controversial--they were dead wrong. The difficulties with this case include:

r  The misunderstandings of commonly used English that occurs because of the technical dialect used by Juris Doctors

r  The impossibly fine distinction the court is creating between actions, speech and thought

r  The political environment regarding race at the time of the decision

r  The fundamental discriminations enshrined in our laws

r  The inherent contradictions in the ruling

The Juris Doctor's Technical (Legal) Dictionary -- Destructive to our Common Language and Understanding

According to all the standard English dictionaries, the word "hate" is defined as an emotion; at best, a thought. Yet according to our Supreme Court,

but a punishable "act." By accepting the court's definition, our society comes to believe particular emotions and thoughts are in fact acts punishable by law. This absurdity is completely and fundamentally integrated into the belief systems of many in addition to the J.Ds and their auxiliaries; the irony is utterly lost to them. The hubris of this redefinition of the word "hate" is astounding, for the previous definition, as an emotion or thought, implicitly excludes acts. So now we have a word that means two mutually exclusive things: emotions/thoughts and actions.

From another perspective, if hate is an action, then can it be taught like, say, riding a bicycle? Will it take much hand-eye coordination? Will particular styles of hate emerge, and how would the various hates be compared and contrasted? Will coaches develop a body of knowledge regarding hate techniques and apply it to a world rated hate athlete?

To paraphrase Chairman Mao, for the revolution to succeed we must first destroy the language. Or as Orwell puts it,

Improper Distinctions Made beyond the Court's Competence

It is well established in American jurisprudence that there are limits to the court's competence and issues where their involvement would be improper. This naturally gives rise to collisions of interests accompanying decisions on those limits and involvements. Some, including this author, believe the contemporary orthodoxy is, as Matthew J. Franck puts it:

Regardless of whether the above is an accurate description, it is clear the courts are involved in minute, unintelligible distinctions as evidenced by the tremendous resources expended to create, interpret, promote and defend their reasoning.

When it comes to distinguishing hate thought, hate speech and hate acts, why are our lawmakers and courts so willing to tinker with the minute, and so close to the line? Compare this state of affairs to the distances they keep from some issues; e.g. the "wall of separation between church and state." The line between the two here is quite fixed by the weight of the wall, it's protected from approach by the wall's width, and impractical to cross because ... there's a wall in the way.

The line the court Inscribed between thoughts and acts in Wisconsin v. Mitchell is, obviously, a fine one. Another line created by the court is actually a "wall." It's reasonable to expect that the court plays much closer to the wall as there is no fear of crossing that line, and keeps away from the fine line for fear of crossing it.

That this is not the case is remarkable and begs the conclusion that the court doesn't much care if they cross the fine line and wants to prevent anyone from even thinking of crossing the other. If the court has restricted thought and speech -it's quite possible that they have--they would have, in the words of William O. Douglas, committed

The Decision's Contemporary Political Environment, Re: Race

In 1993, the political environment regarding race was typically controversial and consequential. Therefore note should be taken that, contrary to what one might expect, this case punished a Negro for hating a Caucasian.  The significance of race in this case is left to the reader.

The Perennial Problem of Constitutionally Required Discrimination

That American jurisprudence has separated all of us into 2 groups based upon particular attributes is well established.  The attributes pertinent to this examination are those that define any one of a few "Protect Classes." The court enumerated them in their decision:

The laws --some of which are decades old-- involving members of a protect class, requiring this and proscribing that, are voluminous, can impose severe penalties and are quite different for non-members. As one contemplates a course of action involving another, the other's protected status must be taken into account. Decision makers are allowed to discriminate to the subject's detriment based upon age, weight, appearance, etc; practically any attribute at all, except those attributes allowing membership in a protected group. At the same time, these decision makers are required to discriminate to the subject's benefit because of membership in protected groups in order to achieve the required "level playing field."

The contention surrounding the politics involved in defining protected groups; controlling membership requirements; creating new groups; requiring and proscribing behaviors; and other activities will likely continue for decades to come. Conversely, people's innate ability to exist in a state of cognitive dissonance may mitigate the outcome.

The Court Describes the Contradictions in Their Own Ruling

First, the court rules that these hate crime statues deal with acts only and not speech. Then they go on to advise states regarding the state's protection of speech:

Amusingly, it's apparent that one court's speech is another court's action. Further, they seem to abdicate the supremacy of the Constitution's speech clauses over the states, which they established in Gitlow in 1925:

The Aftermath of Wisconsin v. Mitchell

If James Madison is correct in believing

then it's reasonable to keep watch for these encroachments. However one reacts to Wisconsin v. Mitchell, it is clear to this author that the characteristics of the case are just those that qualifies it for an examination of the possibility of encroachment. Whatever anyone predicted as a consequence of the court's 1993 opinion, we now have the first 15 years of its history examine. As the examination of these years will show, it's astonishing the court was so mistaken (misguided?) in holding

Whether the ACLU planned this situation from the beginning or not, R.A.V., Lee, and Wisconsin, taken together, ... reveal the grandeur of the ACLU's morbidly fascinating objectives and the harrowing power of their machinations (anon.)

Perplexing: Capitol Square Review Board v. Pinette 1995

The ACLU summarized Capitol Square v. Pinette with:

Such forthright support for public religious expression seems atypical of the ACLU. Unfortunately, its inclusion in their 100 Greatest Hits may be inappropriate.  

They provide additional information on this case on their Freedom of Expression page, which includes this link to a summary of the amicus brief they submitted. This author searched for several hours, including various pay sites, without success. Perhaps they confused this case with another 6th circuit case, ACLU v. Capitol Square Review Board, concerning the official motto of the State of Ohio-With God All Things Are Possible-and the Establishment Clause of the First Amendment.

The web contains references to the ACLU's involvement in Capitol Square v. Pinette-from the Freedom From Religion Foundation:

The only connection this author found between the ACLU and Capitol Square v. Pinette was in the person of the attorney who argued and won the case, Benson A. Wolman of Columbus, Ohio. He left his position with the ACLU of Ohio in 1986, and the Ohio ACLU reports that he was merely

It would be curious indeed, if the ACLU supported this public religious expression considering their own Supreme Court Justice, Ruth Bader Ginsburg, dissented:

Justices Souter and Breyer, joining O'Connor's concurrence, said:

According to the standard these 3 set, it is difficult, perhaps impossible, for an individual to know what is permissible and what isn't:

Apparently, only Judges can discern these "subtle ways," which encourages decision makers to prohibit all religious expression for fear of inadvertent religious endorsement. As Justice Scalia noted in the Court's Opinion:

This type of preemptive prohibition seems to be inescapable, since, according to O'Connor's Concurrence, only judges are competent to determine 1st Amendment applicability:

In the Court's Opinion, Justice Scalia wrote:

Despite the Court's support of religious expression in this case, Justice Souter's Concurrence, "with whom Justice O'Connor and Justice Breyer join," laid the legal foundation for possible future suppression:

The Court's Opinion acknowledges, that as of 1995:

Perhaps Justice Scalia was anticipating a case like McCreary in 2005 in his prognostication, that applying their-O'Connor et al-endorsement test  

A Typical Case: Wisconsin v. Southworth 2000

This is a typical case for the ACLU and is examined here to illuminate their tactics, etc. Excerpted from the ACLU's description:

Usually, this author found it difficult to find corroborating evidence on the web regarding the conception of a case; but not for the conception of this case:

It's elucidating to note that the ACLU was seeking a case like this, which reveals the fact that the ACLU has an agenda and is energetically pushing it: 

In general, this is fine with those who support that agenda. To others, including this author, it proves that the ACLU is trying to make over America into their image via the courts:

They have shown time and again, how a few individuals with access to the ACLU's $320,000,000 war chest, can dictate law and policy to the entire nation.  According to Wikipedia:

It is widely acknowledged that the changes in law, etc. effected by the ACLU could not have happened if they used the legislative process. In 1978 Bill Donohue allegedly interviewed Roger Nash Baldwin, the founder of the ACLU, who said:

The "right not to speak" case, Wooley v. Maynard 1977, was ignored in the court's opinion, and is found only in Justice Souter's concurrence which summarily dismisses its bearing on this case because this case is different:

Apparently the government has no legitimate interest in 'living free', as it does is the uttering of the Lesbian, Gay, Bisexual and Transgender Center (LGBT). It seems the ACLU would force us to promote speech originating from the LGBT. In this author's opinion, the court's ruling in this case is an excellent example of their ability to select a suitable starting point in the Law and come to whatever conclusions they desire, while the obvious conclusions are simply ignored.  That their reasoning makes some kind of sense is merely a testament to their facility with sophistry.

Oops? Utah Gospel Mission v. Salt Lake City 2003

If the ACLU's description of this case is truthful -as opposed to only factual-- it would appear reasonable to conclude that they were protecting free speech from censorship by religion:

And those are the facts; some of them. As far as the Court of Appeals was concerned, the religions aspects of this case were incidental and didn't enter into their evaluation and eventual decision; the issues involved were controlled solely by the speech clauses. Further research into the import of this case may reveal its use as propaganda by the ACLU 'proving' that they support the 1st amendment's religion clauses, though it must have been vexing to find themselves supporting religion, even if only incidentally.  Regardless, they made it look, superficially, like another loss for religion.

Convoluting the 1st Amendment's Religion Clauses: Mellen v. Bunting 2004

The ACLU divulges its startling interpretation of the religion clauses in a case so perfectly suited for their objectives that this author believes they must have created the situation and all its particulars. They summarize the results with:

Although obviously a very pointed and subjective statement, it is still mostly factual Yes, VMI is a part of the hated evil Military.  Yes, a significant enough part to be called an Institution. Yes, something was mandatory.  Yes, that activity was banned.  Yes, prayer was involved. But is it truthful? No; and for the following reasons.

Consider the ACLU's use of the word "coerced". Nobody was coerced to pray, only required to remain respectful for a few moments as Justice Scalia observes:

The ACLU continues with their view of the case:

Actually, this case doesn't 'reaffirm' anything, and the court's opinions on both sides make this clear. Both the opinion and the dissent explicitly ignore the question of the constitutionality of the behaviors at VMI, making its reaffirmation impossible.

In fact, the ACLU acknowledges that

inescapably leading to the conclusion that there never was an original affirmation, which also makes reaffirmation impossible. The Court merely denied Certiorari and let the lower court's ruling stand for 3 reasons --all technical-- according to Justice Stevens:

The distinction is subtle and real. The court never questioned whether the behavior at VMI was constitutional or not, only whether such behavior could be a 1st amendment issue.

The ACLU goes on to contradict themselves in a bold turnaround in the same document. From 'the Supreme Court never addressing this issue' to 'following these nonexistent precedents':

Finally, there were no ... mandatory mealtime prayers ... The two young men who brought the suit simply stood quietly for a few moments.

Sadly, in its habitual manner, the media discarded the truth, ignored the facts, and largely accepted and promoted the ACLU's propaganda that the Supreme Court found school prayer unconstitutional with this case. Indeed, in light of the Heller dissension, it would not be surprising to find that the court denied review specifically to generate the belief that school prayer was unconstitutional in order to further some of the Justices' political desires. Or perhaps from a desire to be a proactive 'Policy Maker' who doesn't have to wait for a suitable case to arrive in order to make their mark -certainly this must be a tremendous temptation. And the people, in their habitual manner, believed the media. 

Although this case caused an Unusual Public Supreme Court Disagreement, it is yet another testament to the ACLU's mastery of public relations and rhetoric, they have convinced most everybody that all school prayer is unconstitutional; and done so without having to risk losing a case that actually addresses the issue!

In the intervening 3 years, the ramifications of the ACLU's victory are becoming known. From this vantage point, one can clearly see how this case, because of its particulars, was the perfect vehicle for redefining the 1st amendment in the image of the ACLU. In asserting that the behavior was unconstitutional, the ACLU exposes their reasoning:

¬    To be heard is to allow

¬    To allow is to sanction

¬    To sanction is to endorse

¬    To endorse is to recommend

¬    To recommend is to establish

hence the constitutional prohibition. In other words, an American's freedom of religion demands the freedom from exposure to religion.

The 1st amendment says Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...

And under the leadership of the ACLU, it is becoming Congress shall make laws as necessary to establish Secular Humanism and to protect the people against experiencing anything religious.

How else to explain the summary dismissal of so many possible solutions?

F  The American public is well experienced in hearing a speaker say something like " ... and speaking only for myself ..." and have had no trouble in understanding that what was about to be communicated represented the speakers views, and not the views of the speaker's sponsor. In fact, such disclaimers are standard on DVDs. Our laws allow a speaker to preface any type of speech at all with "speaking only for myself", with the sole exception of religion. 

F  When universities host a speaker, everyone understands that the speaker will be presenting their personal views and not the official views of the university. Our laws provide legal protection for the host regardless of what the speaker says, with the sole exception of religion.

F  And how does requiring one to be quiet for a moment while others are pondering their most deeply held beliefs; answers to "Life, the Universe, and everything"; how does this constitute a law establishing religion?

And aside from saying the words "God" and "Lord" a few times, what is so alarming about expressing love, peace, mercy, etc. Are Americans really so against such a message; and if so, what are their values and where did they come from?

Internet Censorship Decision Postponed: A.G. Ashcroft v. ACLU 2004

The ACLU's Press Release describes this case as:

Finally, a case that even the conservative Cato Institute seems to support, largely because, in the words of the ACLU,

And censoring non-obscene speech is something most Americans don't support -with the ACLU and their ilk as glaring exceptions.  Yet even though this suit had, and has, widespread support, the ACLU's description of their victory is again exaggerated since, as the Cato Institute points out

The case is pertinent to this investigation as another example of the how the ACLU sees banning content-based speech as repressive, at least if the content is pornography.  However, banning is not repressive if the content is Christian. In fact, such speech must be criminalized because 'hearing' such speech is an infringement of the religious liberties of the audience.

The Spawn of Napster! MGM Studios v. Grokster 2005

In 2005 the ACLU issued a press release concerning 2 cases contemporaneously before the Court:

Actually the legality of the file-sharing software was never an issue for the Court which addressed the legality of creating and promoting the use of a purpose designed copyright-infringement system. Although MGM won the case, they were unable to palaver the Court into finding the individual 'downloader' liable. Such an argument had failed in the case year decision covering simple tape recorders.

The Oyez Project summarizes Grokster:

Again, the ACLU's summarization of a case, Grokster is curious:

It's unclear what the ACLU meant in asserting that "software developers" are not liable while the Court's "software companies" were found to be just that. The ACLU's brief argued that those at issue -companies and/or developers?- shouldn't be held liable for the criminal use of their product and the Court unanimously disagreed. The Court found that those involved knew their product would be used for copyright infringement, and wanted it to be put to such use; that they designed their systems and marketed and advertised them for that end. Finding them consequently liable seems reasonable.

As evidenced by their brief, the ACLU's opposition is not due to the expected near term effects of the decision; rather because of fear of possible situations far down the slippery slope.

The future will prove them right or no.

A Refreshingly Reasonable ACLU Argument: FCC v. Brand X 2005

The ACLU characterizes the FCC v. Brand X Internet Services case as

Of course, the question was never "will they regulate" these providers, but "how". The ACLU isn't alone of course in their prevarications; apparently "Nonregulation" is a synonym for "lightly regulated":

The Court ruled that the services in question were "information" and not "telecommunication". Evidently telecommunication service regulations are more onerous; hence this case. Some argued that applying telecommunication regulations to these service providers would unduly hinder the growth of their industry to our economic and social detriment. Others feared that such lack of governmental control over the industry would lead to the continuing oppression of the economically disadvantaged.

The above quote comes from an Oyez webpage reproducing an article by "WHITNEY BecKETT, MEDILL NEWS SERVICE". Whitney implies that the quoted statement above came from either the Telecommunications Act of 1996 or a Congressional conference report; H.R. Conf. Rep. No. 104-458, at 113 (1996), reprinted in 1996 U.S.C.C.A.N. 124. This Needs Checking

Fortunately the decision in this case does nothing to advance the ACLU's reconstruction of our 1st Amendment, though they must have taken note of being on the same side as Justice Scalia.

Death Knell for Freedom of Religion: The Harrowing McCreary v. ACLU 2005

Lamentably, the ACLU press release for McCreary trumpets:

The ruling in McCreary v. ACLU was indeed historic; it explicitly made a particular document, the Ten Commandments, illegal.  It also reaffirmed the ACLU's position that religious liberty in fact means the absence of religion; this is the law of the land.

In this author's opinion, the decision in this case created a constitutional crisis that should have rocked the American people off their feet. That it didn't exposed a level of political discourse that was no longer capable of sustaining our uniquely American form of democratic government.

McCreary Summary

At issue was a Kentucky Courthouse that posted a "Foundations of American Law and Government" display, which consisted of 9 framed documents of the same size, one being the Ten Commandments. The court ruled that the creation of the display was a subterfuge for Christian proselytizing -displaying the Ten Commandments was a crime.

This was the 3rd attempt to post the Ten Commandments in the courthouse. The 1st display consisted solely of the commandments for an "avowedly" sectarian purpose. When this was found to be a crime, Kentucky designed an exhibit of historic documents, one of which was the Ten Commandments, which would make the display unmistakably historic, not religious. Note that this display was designed specifically to comport with the law. Again, this was found illegal so Kentucky tried a 3rd time, using all the understanding of the law they accumulated in the prior 2 cases. The court's description of the 3rd display:

Essentially, the court ruled that these exact documents, displayed in exactly the same fashion in the selfsame courthouse would be perfectly legal if not for the "intent" behind the display. Envisage this: 2 people in the same place at the same time in the exact same circumstances saying exactly the same thing; one goes about their business, the other goes to jail. In Souter's own words, displaying the Ten Commandments (i.e. a sacred text) is allowed:

Thus, the first one goes free.  Woe to the other, convicted for displaying the Ten Commandments because the court said