How to get judges to read your brief

Judge Saxe is at it again, handing out more smug advice about appellate briefwriting.  “The reply brief is an important document,” he intones.  It’s “the last word” that the judges will read. It should consist of “short, declarative, punchy sentences.” Based on “abundant anecdotal information,” he alleges, “many appellate judges have the habit of reading a reply brief first.”

Oh, yeah? Well, after a couple of decades of arguing criminal appeals in the Appellate Division we have abundant anecdotal information that many appellate judges have the habit of reading nothing but the bench memo — an important document cranked out by an anonymous pool clerk who’s read nothing but the People’s brief. Reply brief? Might as well stick it in a bottle and throw it in the East River.

This is no secret. Judges are advised not to bother reading the “often turgid and prolix briefs” and rely instead on the bench memo, which conveniently includes a pre-argument decision affirming the conviction.  “Reversals are disruptive to a system that values predictability and productivity,” Saxe explains, “because reversal often means that the matter must be done over.”

The incredible disruptiveness of asking a court to correct its mistakes!

Even Justice Ginsburg accuses lawyers of filing appeals only because they’re “available and inexpensive,” to the annoyance of “overworked appellate judges.” Most appeals lose, she opines, because the arguments are “exceedingly weak,” trial courts being presumptively infallible.  Her advice on raising an appeal? “Perhaps you shouldn’t.”

But suppose you have a case where nobody in their right might would disagree that your client got the worst trial since Sacco and Vanzetti. Your arguments are exceedingly strong and your brief is neither turgid nor prolix.  Your reply uses such short, declarative, punchy sentences, Elmore Leonard couldn’t have done better.  The People’s brief, as usual, is written by a pompous semiliterate. But you lose anyway, because nobody’s read your brief.

How to get judges to read it? Take a tip from the Internet:

Posted in Criminal Defense Appeals, Judges, Law & Parody, Satire and parody | Tagged , | 8 Comments

Linda Fairstein: Central Park Five guilty as charged

The videotapes show that “the questioning [of the Central Park Five] was respectful, dignified, carried out according to the letter of the law and with sensitivity to the young age of the men. . . . If you spot the first sign of a coercive questioning, don’t hesitate to write to me and point it out.” 

—  Former ADA Linda Fairstein’s Letter to the Editor of the NY Law Journal, July 31, 2018.

The Central Park Five, if you remember, were five teenagers who were convicted, based entirely on confessions, of the brutal rape of a young woman in Central Park. After years in prison, they were exonerated by the confession of a serial rapist, which, unlike the Fives’ confessions, was corroborated by DNA.  After a dozen more years of litigation, the Five were awarded $41 million and the federal court ordered the full record to be made public. Accordingly, the NYC Law Department has just now started a website which, if you have the patience of a saint, will grudgingly let you see some of the documents in the case.

Linda Fairstein, who was head of the Manhattan DA’s Sex Crimes Unit at the time of the trials, insists that the unsealed record will “confirm the original verdict.”

“The confessions were not coerced,” she explains, or else the trial court wouldn’t have found them admissible. The videotapes show that “the questioning was respectful, dignified, carried out according to the letter of the law and with sensitivity to the young age of the men. . . . If you spot the first sign of a coercive questioning, don’t hesitate to write to me and point it out.”

Plus, she says, she wasn’t the prosecutor.  “Instead, I was an eyewitness to many of the events at the police stationhouses throughout 36 hours when the statements were obtained.”

Of course the videos won’t show coercion. Because they won’t show the interrogation. Until recently, the cops never called the video tech until the suspect was “ready to make a statement.”  Not only were these “men of young age” questioned for hours overnight before their videotaped statements, two were taken to the crime scene by mere eyewitness Fairstein, thereby feeding them information that could then be used as proof that they were there.

Here’s what the late Judge Titone of the Court of Appeals had to say about Fairstein’s involvement in the questioning of Yusuf Salaam, one of the Five:

At a little after 10:30 p.m. on the day after the highly publicized crime occurred, Detective Taglioni and three other detectives went to defendant’s home and “asked” him and his two companions to come to the police station for questioning. Defendant “voluntarily” accompanied the detectives, while his sister called an aunt who lived near the police station, Marilyn Hatcher, and asked her to go to defendant’s aid. Hatcher left for the police station with her fiancé almost immediately, arriving at approximately 11:10 p.m. By that time, defendant had arrived at the police station and had been taken to the Sex Crimes Office for questioning.

A Detective McKenna read defendant the Miranda warnings and obtained a waiver of his rights just as Hatcher reached the police station and told an officer that she wanted to see her nephew. After being asked to wait for a few minutes, Hatcher was told by Detective Taglioni that defendant was currently being questioned, that she would not be permitted to see him because she was neither a parent nor a guardian and, finally, that defendant would not even be given the information that “some of his family was there.”

Approximately 15 minutes later, David Nocenti, a United States Attorney who happened to be defendant’s “Big Brother”, arrived. Having learned from Hatcher that she had been prevented from seeing defendant, Nocenti approached the desk officer and informed him that he was a friend of defendant’s family as well as an attorney.

Nocenti was asked to wait while Assistant District Attorney Fairstein, the head of the Sex Crimes Prosecution Unit, was informed of his presence. Fairstein conferred with one of the detectives who was involved in defendant’s questioning and ascertained that defendant had already made a number of inculpatory statements. Fairstein did not suggest that the questioning should be suspended because of Nocenti’s presence. Instead, she approached Nocenti, told him that he had no right to be at the precinct and questioned his ethics as an attorney.

Significantly Nocenti had made it clear that he was there not in his capacity as an attorney, but rather was there as a friend of the family who wanted to aid defendant. At 11:40 p.m., Fairstein told Nocenti that he could not see defendant and that he would have to leave the premises because he was neither an immediate family member nor an attorney representing the suspect. As in the case of Marilyn Hatcher, defendant was not informed that Nocenti had come to the precinct to see him.

Within minutes, defendant’s mother arrived and encountered Hatcher and Nocenti, who were waiting outside the precinct. The entire group then reentered the precinct and informed the desk officer that defendant’s mother was now there. After waiting for a few minutes, Fairstein and another Assistant District Attorney spoke with defendant’s mother and told her that she would be permitted to see him after the questioning had been completed.

After conferring with Nocenti outside, defendant’s mother went back inside, this time demanding that she be permitted to see her son immediately. It was then that she revealed for the first time that defendant was 15, not 16 as the authorities had previously been led to believe.

Apparently caught off guard, Fairstein bickered with defendant’s mother and Detective Taglioni for a few minutes before deciding to call a halt to the interrogation. Even then, the questioning did not immediately stop. Instead, it merely shifted to the subject of defendant’s age and how it had been misrepresented on his identification card.

In all, defendant was questioned for an hour and a half before the interrogation was terminated. During that entire period, unbeknownst to him, there were related and/or concerned adults who were present and could have provided him with helpful counsel had they not been denied all access to him. What emerges from these facts is a picture of law enforcement officers who were so anxious to extract a full and complete confession that they did everything within their power to keep this youthful suspect isolated and away from any adults who might interfere with their exploitation of “the awesome law enforcement machinery possessed by the State” [. . . .]

In this regard, the majority’s suggestion that the police “reasonably believed that they were dealing with an adult” is fallacious. Even assuming, as the police justifiably did, that defendant was 16 at the time he was questioned, it cannot be said that he was actually an adult in any realistic sense of that term. To be sure, our statutes would permit him to be tried as if he were an adult for the serious crimes of which he had been accused . . . .  None of these statutory provisions, however, negate the elemental fact that defendant was, at most, 16 years old and, under our State’s law, an infant for most purposes. . . .

[D]efendant had neither the maturity nor the experience to protect his own rights in the inherently coercive, police-dominated atmosphere in which he found himself. . . . [H]e should have been permitted to establish “contact” with the adults who were waiting outside to see him and “who might be able to provide him with assistance or advice” regarding the seriousness of the situation and the need for consultation with counsel before making statements that would irrevocably prejudice his legal position.

Furthermore, there can have been no other reason for the decisions of Detective Taglioni and Assistant District Attorney Fairstein to prevent defendant’s aunt, “Big Brother” and mother from speaking to him other than to capitalize on his youth and isolation and to assure that he did not receive aid and advice from the supportive adults who were in a position to retain counsel for him. Indeed, it is apparent that the authorities’ purpose was to obtain the evidence they wanted before permitting defendant to speak with an adult who might interfere with the investigators’ absolute control over his person and environment.  In other words, “the police intentionally deprived the defendant of access to his family in an effort to obtain a confession”

Contrary to the majority’s assertion, the foregoing conclusion requires no impermissible inference drawing. Assistant District Attorney Fairstein made the authorities’ motives in this regard explicit when she told defendant’s mother that she would not be permitted to see her son until after the detectives were finished with their questioning. This declaration that defendant would continue to be isolated despite the presence of his mother at the police station belies the suggestions made earlier to Hatcher and Nocenti that the only reason they were being denied access was that neither was a parent or a person who had come to provide legal representation.

Finally, defendant’s need for an adult perspective in this situation is highlighted by the cynical manner in which the detectives manipulated the information they gave him in order to induce a confession. The detectives told defendant that he had been implicated in the crime by others but that it was possible that he could still be released “depending on what [he] ha[d] to tell [them].” When defendant balked, the officers told him, falsely, that they were able to lift fingerprints from the victim’s jogging pants. At that point, defendant, perceiving no alternative, acceded to the police pressure and began giving the inculpatory statements that had subsequently convicted him.

Manifestly, an experienced adult could have disabused defendant of the naive notion that there was anything he could say to police that would result in his release at this stage in the investigation. Certainly, a knowledgeable adult—or an attorney retained by such an adult—could have alerted him that he could not extricate himself from the most serious charges merely by denying having directly participated in the rape. In any event, defendant’s aunt, “Big Brother” or mother could have helped this 15–year–old suspect to appreciate the value of waiting until after he had spoken to an attorney before committing himself to the inculpatory statements he was in the process of making.

In sum, other than an undisguised intention to exploit this defendant’s youthful vulnerability, there was no justification for the authorities’ actions in preventing defendant from gaining access to the helpful counsel of the supportive adults who had gathered at the police station to assist him. Accordingly, I would hold that the statements the police obtained as a result of their overreaching ought to have been suppressed. Such a holding is necessary, in my view, both to deter the abuse of police authority and to protect the right to counsel of those who are too young and naive to appreciate its importance. Because the analysis and holdings of the courts below, and of the majority here, fail to give adequate weight to the rights of this unrepresented juvenile, I dissent from the decision to uphold his conviction.

People v. Salaam (NY 1993)(Titone, J., dissenting)

Considering that Fairstein has spent the last 20 years writing novels with titles like, “Likely to Die,” “Lethal Legacy,” “The Bone Vault,” “Hell Gate,” and others suitable for killing time at the airport, it’s not surprising that she edits out whatever doesn’t contribute to her story line.  Prosecutors have always believed in fact fluidity.

Posted in Criminal law, False confessions | Tagged , , | 7 Comments

Sentencing Sheldon Silver

“The Government got up and said. . . we want other people to see his sentence and to think twice about committing a crime. And I remember Judge Glasser looked at the assistant and said, what you’re suggesting is that I give this person a sentence that’s more severe than is required in the hope that that sentence will one day keep a person who may not yet even be committing a crime from committing the crime.  He said, I can’t do that.  Sentencing is an individualized process.”

Defense counsel at the sentencing of former NY State Senator Carl Kruger.

“Mr. Adelson’s good deeds were not performed to gain status or enhance his image. Most of them were unknown to all but a few people until the time of his sentencing. But, surely, if ever a man is to receive credit for the good he has done, and his immediate misconduct assessed in the context of his overall life hitherto, it should be at the moment of his sentencing, when his very future hangs in the balance.”

Judge Jed Rakoff at sentencing in U.S. v. Adelson.

Sheldon Silver, the 74-year old former Speaker of the NY State Assembly, is about to be sentenced again after his original conviction was overturned by the Second Circuit.

Considering the unanimous media howling against him, it’s not surprising that his speeded-up retrial resulted in a repeat conviction.  He’ll be sentenced by Judge Valerie Caproni who, at his previous sentencing,  slammed him with 12 years in prison and forfeiture of all his assets.

In the spirit of displaying the decapitated head of the condemned as a warning to others, the judge explained that the harsh sentence would instill in “the next politician” “the fear of living out his golden years in an orange jumpsuit.”

She pooh-poohed Mr. Silver’s 40 years of extraordinary achievement and good works, opining that his was an “exceptionally serious crime.”  Even if no one suffered any tangible harm, she said, the “intangible” harm was “incalculable”  because New Yorkers would never trust a legislator again.

For all the flinging about of words like “bribery,” “kickback,” and “corruption,” it’s hard to see what was exceptionally serious or incalculably harmful. Especially after the Second Circuit, reversing the first conviction because of the court’s misleading jury instructions, opined, “We cannot say, beyond a reasonable doubt, that a rational jury would have convicted Silver [even] if properly instructed.”

We asked our friend, bigshot federal attorney Flywheel Shoetree to explain.

“Elementary,” said Flywheel putting his fingertips together Sherlock-Holmes style. “Silver awarded two grants of $250,000 each for research into cancer contracted from asbestos.”

“The scoundrel!” we exclaimed. “Of course that money was bilked from vulnerable widows who contributed it thinking it would be used to feed hungry children.”

“Er, not exactly,” said Flywheel. “The money came from funds that Silver had full discretion to disburse for healthcare projects.”

“Then this so-called ‘cancer research’ must have been a bogus front for funneling the money into Silver’s pocket,” we said. “That’s the standard paradigm of corruption.”

“Wrong again,” said Flywheel. “There was no question that the recipient was a well-regarded doctor at Columbia University who used the money for asbestos-related cancer research. But Silver also asked him to refer his patients to a particular personal injury law firm.”

“Aha!” we said. “And this shady law firm took these patients’ retainers and absconded.”

“Not at all. The firm had a respectable asbestos-injury practice and zealously litigated those cases,” said Flywheel. “But they gave Silver a referral fee.”

“No doubt referral fees are highly illegal,” we said.

“Certainly not!” snapped Flywheel. “They’re standard practice. But the prosecution says it was a quid pro quo. In other words, that Silver awarded the grant to the doc to get the referrals.”

“But the doc went on referring patients even after Silver told him in 2007 that there’d be no more grants,” we pointed out. “So even if there was a quid pro quo before 2007, the 5-year statute of limitations would bar prosecution.”

“Silver had another quid up his sleeve,” said Flywheel triumphantly. “In 2011, he sponsored an Assembly resolution honoring the doc. So it’s not time-barred after all.”

“Even the Second Circuit said you can’t seriously call that a quid,” we protested. “Honorary Assembly resolutions are a dime a dozen. The Assembly rubber-stamps hundreds of them a year, honoring boy scouts, old folks, high school sports teams, even a sports team jersey –”

“You want this country to be like Russia?” retorted Flywheel. “You heard the judge. It doesn’t matter that the funding, the cancer research, the representation of asbestos plaintiffs and the referral fees were legit. Or that nobody lost a dime in the process.

“Same with Silver’s referring real estate developers to a law firm specializing in tax assessments, which paid him referral fees. Doesn’t matter that he never did anything different for the developers that he wouldn’t have done without the referrals.  If the Government and the newspapers want to call it bribery and kickbacks and the most dastardly corruption of the century, then it’s bribery and kickbacks and the most dastardly corruption of the century. Capeesh?

“We can only hope the judge has had some kind of epiphany in the past two years,” we sighed. “Maybe this time she’ll read the letters about how Mr. Silver was personally out on the street helping people after 9/11 and again after Hurricane Sandy. That he cut through red tape for welfare mothers, senior citizens and all kinds of individuals caught up in bureaucratic snafus.  That he blocked Mayor Bloomberg from building a football stadium in the middle of Manhattan, kept the legislature from reinstating the death penalty – – ”

“Yeah,” agreed Flywheel. “The judge shouldn’t worry so much about what us New Yorkers think about our legislators. We weren’t born yesterday and we know how to vote them out if we have to. She should worry about our faith in the judiciary when a federal judge sends a guy like Silver to die as a pauper in the slammer.”

Addendum: On July 27th Judge Caproni sentenced Silver to 7 years in prison . 

Posted in Criminal law | Tagged , | 1 Comment

The ban on “sex offender” art

Leaving the artwork up could serve as a trigger for our students and staff who have been victims of child abuse and sexual assault. Since the display is at the campus main entrance where our students and staff are required to enter and exit, the potential to trigger is very real. . . . In the end the requirement to provide a safe place for our students stands paramount.

— President of the University of Southern Maine explaining his order to remove three paintings from an art exhibit upon learning that the artist was a registered sex offender.

The exhibit was a curated group show entitled “Industrial Maine: Our Other Landscape.” The artist whose three paintings presented “a very real” potential to trigger traumatic memories of abuse was a well-regarded Maine painter whose “industrial landscape” work looks like this:

Title: Distant Industry. “I painted this piece plein air at a local closed paper mill. . . The smokestacks, the icons of the Industry survive to remind us of our past.”

Title: Cape with Yellow Truck. “Many times in my travels in the back roads of Maine I have come across these old trucks just rusting in the fields. . . put to pasture, so to speak.

Title: Signs and Overpass. “The painting was all about simple design and the feeling of loneliness.”

He’s on Maine’s SORA registry based on a conviction from 20 years ago for which he served six months in jail. When the show went up, a relative of the victim complained to the Prexy.  Before you could say “public safety,” his three paintings were gone.

The outraged curator refused to replace them.  Instead, she put placards in the empty spaces saying:

Apparently the placards also constituted a clear and present danger of invading the safe space of victimized students.  The Prexy had them removed.

Mind you, this wasn’t the act of some freshman snowflake melting over being assigned to read “Hamlet.”  This was the middle-aged president of a state university proclaiming in all seriousness that looking at a painting of Maine landscape has the “very real” potential to trigger a traumatic episode.

The greatest absurdity, of course, is his notion that college students take their noses out of their Smartphones long enough to notice anything at all, unless it’s something to eat.

Tiffany: Hey, Jason, there’s something on the wall where we’re required to enter and exit.

Jason: Duh?

Tiffany: I’m going to see if any of them are on the Sex Offender Registry.

Jason: Careful, the potential to trigger memories of abuse is very real.

Tiffany: There’s free wine and cheese at the opening.

Jason: Beam me up, Scotty!

The artist was generous about it, saying he was sorry his paintings had drawn “negative attention” to the exhibit.

At least he’s in good company. The National Gallery of Art in D.C. just canceled a show of Chuck Close because of allegations of verbal sexual harassment by a portrait model. What if Leonardo had said something fresh to Mona Lisa? Would the Louvre send “La Gioconda” back to Italy in disgrace?

The only solution is a Salon des Refusés for artists rejected from mainstream venues based on their sexual misbehavior. Starting with Gauguin, Picasso, Close and our painter of Maine landscapes. There would be lines around the block.

h/t to @TheDobbsWire

Postscript: In September, the Anti-Registry Movement will hold an outdoor art show of works by SORA registrants in front of the USM campus. For more information, go to

Posted in Civil Liberties, Satire and parody, SORA | 13 Comments

Criminal defense vs. “social justice”

A recent communiqué from HR casually let fall that we’re now a “social justice organization” dedicated to the interests of “the most vulnerable.”

And all these years we thought we were a public defender! We feel like the hero of Kafka’s “Metamorphosis” who woke up one morning to find himself turned into a giant beetle.

As an appellate squawk, we represent people convicted of crimes. Sometimes we think they might be innocent or that what they did shouldn’t be a crime, but  we’re still not going to enter them into any “most vulnerable” contest.  You want vulnerable, go read the Brooklyn DA’s press handouts about crime victims. Just kidding, don’t go near them.

As for “justice,” that’s exactly what we’re defending our clients against. “Bringing to justice,” “obtaining justice,” etc. are gassy expressions for prosecution and punishment. The Italians are more candid: giustiziare means putting to death.  Tacking “social” onto it doesn’t make it less retributive. Might as well put a hat on a piranha. As Hamlet said, “Use every man after his desert and who should ‘scape whipping?” We try to help our clients escape whipping, deserving or not.

How would a defense lawyer look plumping for social justice?

DEFENSE COUNSEL: The machete allegedly found on my client should be suppressed as the fruit of an unlawful search. The officer testified that his only reason for stopping him was that he was wearing a Red Sox cap.

PROSECUTOR: We concede there’s no possible interpretation of the Fourth Amendment that could justify the search. But the defendant had the machete hidden in his jacket while walking around the hallway of a public housing project inhabited by itty-bitty little children, marginalized women and the gaga elderly.

DEFENSE COUNSEL: Golly, I guess the interests of the vulnerable come first.

COURT: You bet. Suppression denied.


DEFENSE COUNSEL:  The statute requires the indictment to be dismissed if the People aren’t ready for trial within 180 days without good cause. Since it’s now the 181st day, my client is entitled to dismissal.

PROSECUTOR: We candidly admit the delay is due solely to our laziness and incompetence. But the defendant was caught shooting into the window of a bodega, thereby offending the dignity of huddled masses yearning to breathe free.

DEFENSE COUNSEL: Well, I certainly don’t want to be a xenophobe. We’ll let it go this time.


DEFENSE COUNSEL: I move to preclude any testimony about my client’s prior record, pursuant to People v. Rodriguez.

COURT: What does Rodriguez say?

DEFENSE COUNSEL: How should I know? The point is, my client belongs to a marginalized, powerless, historically underrepresented group.

PROSECUTOR: So does the victim.

DEFENSE COUNSEL: Oh, yeah? What supposedly powerless group does your so-called victim belong to?

PROSECUTOR: Dead people.

DEFENSE COUNSEL: Oh. Okay, you win.

Moral: If you need to wear a halo, don’t go into criminal defense.

Posted in Civil Liberties, Law & Parody, Satire and parody | 22 Comments

Courts should take a tip from the Dept. of Agriculture

Reasonable people can disagree about GMO (genetically modified organism) food production. You can take the word of the multi-billion dollar agrichemical behemoths like Monsanto who deny its damaging effects on the environment, human health and the livelihoods of farmers and who go to scandalous lengths, such as pouring money into fake scientific journals and front organizations with names like the “American Council on Science and Health” or the “Genetic Literacy Project,” to portray its critics as tinfoil-hatted cranks.

Or you can ask why GMO’s are either banned outright or strictly regulated in over 60 countries. Not in America, of course.

Fortunately, the ever-vigilant Department of Agriculture (USDA) has proposed an array of warning labels for GMO foods:

The message is clear. You are solemnly warned that this Frankenstein food might be very bad for you, wink, wink.

Courts should take a leaf out of the USDA’s book:

Judge: Do you understand that by pleading guilty you voluntarily give up your right to trial? 

Judge: Do you understand that as part of the plea agreement, you’re voluntarily waiving your right to appeal? 

Judge: Do you understand that if you don’t come back for sentencing I’ll impose the maximum prison sentence? 

It’s the perfect appeal-proof warning. The judicial equivalent of the GMO. Usda gmo copy

Posted in Humor, Law & Parody, Satire and parody | Tagged , | 2 Comments

The ACLU uncompromisingly defends free speech — unless it’s offensive.

Why is everybody so down on the poor old ACLU just because of an internal memo proclaiming its zealous defense of free speech unless it offends vulnerable and marginalized minorities?  Even the NY Post joined the affray, moaning, “ACLU Stops Caring About Free Speech!”

Let’s be reasonable. Do you blame the buggy-whip manufacturers for switching to a different product when the horseless carriage took over? Do you make a scene at Rite-Aid because they no longer develop film?  Wake up and smell the coffee! Why shouldn’t the ACLU change with the times and don the robe and crown of the social justice warrior, now that free speech has gone the way of the dodo and the typewriter ribbon?

The deal with the First Amendment is that the government can’t restrict expression based on disagreement with the message.  You can be prosecuted for falsely shouting “Fire!” in a crowded theater or downloading porn involving real children, but not for the mere content of your ideas.

So eyebrows are raised when the ACLU memo’s very first paragraph worries about what to do when “the content of the speech we seek to protect conflicts with our policies on these matters” (emphasis added). Policies such as opposition to “white supremacy” and “bigotry and oppression against other marginalized groups,” such as women, LGBT’s, the disabled,  etc. and “the empowerment of people of color.”  The ACLU “understands that speech that denigrates such groups can inflict serious harms” and impedes “progress toward equality.”

Very noble, but isn’t the ACLU known for defending unpopular speech? Neo-Nazis marching in a Jewish neighborhood and things like that? Not any more, apparently. After all, the memo sniffs, “the ACLU as a private organization has a First Amendment right to act according to its own principles, organizational needs, and priorities.” According to the memo, they’re not going to defend a white supremacist group if doing so would piss off the ACLU’s “allies.”

So they now consider the following factors in deciding whether to defend persons being prosecuted for exercising their First Amendment rights:

  • The impact of the disfavored speech/expression “on the equality and justice work to which we are also committed.”
  • The speech’s potentially bad effect on marginalized communities.
  • Whether the speech helps white supremacists or others “whose views are contrary to our values.”

Every few paragraphs, they toss in some jive about how the ACLU’s commitment to neutral principles of free speech remains unchanged. Say what?  It’s like Marc Antony’s repeated assurances that “Brutus is an honorable man,” in a speech that conveys exactly the opposite. The crowd wasn’t fooled.

And if the ACLU finds that not  defending some oppressor of the marginalized might “impact on the credibility of the ACLU as a staunch and principled defender of free speech,” they reserve the right to make up for it by condemning and denouncing his cause “in press statements, op-eds, social media and other available fora,” participate in counter-demonstrations, and organize events and projects condemning those views, paid for by the fees they earn from defending him.

The memo explains, “We generally should not agree to represent people who will not agree to sign an ethically appropriate advance waiver of potential conflicts arising from our condemnation of their views.”

That must do a lot for the attorney-client relationship. Imagine you’re being prosecuted for heckling at a high school gun control rally and the first thing your ACLU lawyer does is have you sign an ethically appropriate waiver allowing her to organize events and counter-demonstrations and condemn your views in op-eds, social media and other fora.

“In other words,” says former director Ira Glasser, “the ACLU now advises its affiliates to consider the content of speech, and whether it advances our goals, before deciding whether to defend the right to speak. That is a balance never before recognized by the ACLU in deciding whether to take a free speech case. To deny that this is a departure from free speech policy is intellectually dishonest, an Orwellian smokescreen thrown up to obscure what they are doing.”

He’s probably still looking for a typewriter ribbon.

Irrelevant Postscript: List of “Most Visited” Articles from Reason Magazine.

  1. Leaked Internal Memo Reveals the ACLU Is Wavering on Free Speech.
  2. Huge Win for Everyone with a Cellphone (and for the 4th Amendment) at the Supreme Court.
  3. Immigration Hardliners Lose Today in an 8-1 Supreme Court Ruling.
  4. 13-year Old Charged with Felony for Recording Conversation with School Principal.
  5. We Are Most Likely Alone in the Universe.


Posted in Civil Liberties, First Amendment, Satire and parody | Tagged | 9 Comments