The Supreme Court has refused to revive the ACLU’s lawsuit against the government for warrantless surveillance of communications with suspected terrorists. Ironically, the ACLU’s (and trial lawyers’) lawsuits against the phone companies for merely cooperating with the government continue.
We earlier discussed the legal anomaly and double standards that allow the phone companies to be sued for permitting government surveillance even when the government itself is immune from suit, and why the phone companies should be given retroactive immunity from suit.
While I disagree with the ACLU’s lawsuits over the antiterrorist surveillance program, as I have explained in prior posts, at least they involved claims of alleged government overreaching.
All too often, the ACLU sues private parties for supposed privacy violations even when they are merely exercising their own freedom of association and private contractual prerogatives.
(In Massachusetts, by the way, state privacy law curbs the civil liberties of private parties to protect wrongdoers’ “privacy,” subjecting citizens to prosecution when they tape police abusing motorists and kidnappers phoning in ransom demands.)
The Massachusetts ACLU has sought to apply to private institutions restrictions that historically only apply to the government, arguing that private institutions should be barred by the Massachusetts Civil Rights Act (MCRA)’s ban on “coercion” from contractually limiting handbilling on their premises (which it claims is a free speech violation) and requiring drug tests for athletes (which it claimed was a privacy violation).
In its trial court brief in Bowman v. Heller, the ACLU argued that an offensive parody of a candidate during a union election that offended a female candidate constituted coercion of that candidate in violation of the MCRA by allegedly causing that candidate emotional distress. The Massachusetts Supreme Court later rejected the MCRA claim, but awarded the candidate tort damages for supposed “intentional infliction of emotional distress,” over a dissent arguing that the award of damages violated the First Amendment.
Anything but consistent, the ACLU also uses lawsuits to silence offensive speech in private workplaces, even as it sues private restaurants that voluntarily seek to exercise their own property rights by restricting offensive speech on their premises, such as swastikas sported by unwelcome patrons. And while it argues that parodies in union elections are not protected speech, and that anti-Hispanic speech in the workplace is just unprotected “verbal conduct,” it also has argued that conduct devoid of intellectual conduct, such as one Massachusetts man performing oral sex on another man on stage, is “speech” protected by the First Amendment.