The ACLU has just jettisoned principle and sacrificed civil liberties on the altar of political correctness in supporting the federal hate-crimes bill.
Historically, the ACLU has opposed many federal laws against crime, citing civil-liberties concerns, such as the Constitution’s ban on double jeopardy (double jeopardy is when a person is tried twice for essentially the same crime).
The ACLU feared that the creation of federal crimes would give prosecutors two bites of the apple, enabling a federal prosecutor to indict an accused person even after a state court jury has found him not guilty of a similar state crime. (A divided Supreme Court created a gaping loophole in the constitutional protections against double jeopardy, ruling in the Bartkus case that the double-jeopardy protection against being tried twice for the same crime only applies when both prosecutions are brought by the same unit of government, not when the first is by the state and the second is by the federal government).
The ACLU in the past declined to endorse federal hate crimes laws, recognizing (in its longstanding policy #238a) that such federal laws create the danger of double jeopardy.
Now, however, the ACLU is endorsing a federal bill banning “hate crimes” based on sexual orientation, sex, race, religion, and disability.
Apparently, while the ACLU believes that criminals in general should receive every constitutional protection imaginable (and many protections that have no basis in the Constitution: the ACLU opposes the death penalty, “three-strikes” laws, victims’ bills of rights, and the building of many new prisons), it believes that those accused of “hate crimes” are not entitled to the constitutional protection against double jeopardy.
As I have explained earlier and elsewhere, portions of this bill exceed Congress’s power to regulate under the Commerce Clause, and the Equal Protection Clause, in light of the Supreme Court’s decision striking down the Violence Against Women Act in United States v. Morrison (2000) and limiting the reach of the federal arson statute in Jones v. United States (2000).
The ACLU has given no reason for its unprincipled about-face on double-jeopardy protections. But ACLU leader Paul Hoffman gave a possible explanation years ago in urging the ACLU to create a “civil rights exception” that would deny double-jeopardy protections to people accused of hate crimes. Writing in the 1994 edition of the UCLA Law Review, Hoffman argued that constitutional protections against double jeopardy should be overridden in hate crimes cases, because society has a “compelling societal interest” in preventing hate crimes (by contrast, Hoffman apparently saw no compelling interest in preventing non-hate crimes, even murders).
The ACLU’s about-face on double jeopardy is similar to its prior about-face on free speech, which it now regularly attacks.
As I have noted earlier, the ACLU once took free speech to an unbounded extreme. It sued the owners of the Alpine Village Inn for not allowing neo-Nazis to display swastikas in their restaurant, and sued a private shopping mall in Connecticut for not letting the Klan proselytize on its property.
By contrast, today’s ACLU seeks to use government power to silence “hate speech.” In the Aguilar v. Avis Rent-A-Car System case, the ACLU argued that racial slurs are not speech, but just “verbal conduct.” In that case, it helped convince a divided California Supreme Court, in a 4-to-3 ruling, to uphold an injunction banning any use of racial slurs in a private workplace, based on racial insults that the trial judge himself conceded had stopped years earlier. In another case, it argued that the Establishment Clause limits the free speech rights of purely private employers.