Hate-crime legislation and the First Amendment
In a July 2009 episode on hate-crimes legislation, the ACLU figures as an organization internally divided over federal hate-crime law. Guest Jacob Sullum said there had been a big division within the ACLU about the issue for years, and that the organization had for a long time had reservations about federal legislation, about the Matthew Shepard Act. He said the ACLU had recently decided it was comfortable with the bill as long as it contained a provision barring introduction of conduct protected by the First Amendment as evidence unless directly related to the crime. Sullum noted that the House version had that provision and the Senate version did not, and that it was not clear what would be in the final bill Hate Crimes Legislation (2009).
Sullum’s own view was that such a provision could not do the work the ACLU expected of it. Because determining whether an attacker was motivated by bigotry requires asking what his beliefs were, evidence of motivation would inevitably reach speech and ideas — reading habits and group memberships among them. He said he did not see how the ACLU thought the provision would protect people’s First Amendment rights Hate Crimes Legislation (2009).
The exchange arose from a caller’s question about the definition of “gay.” Bob Zadek framed the legal question as one of perception rather than fact: what mattered was what the perpetrator perceived, not whether the perception was correct. Sullum agreed, giving the example of an attacker who thinks a victim is Jewish or gay and is wrong — the penalty is still enhanced. Zadek called the enhancement a penalty for what a person thought, and said that using words such as “kike,” “mick” or “dago” in the course of a violent crime would be evidence of that thinking Hate Crimes Legislation (2009).
The ACLU as a civil-liberties scorekeeper
In a January 2012 interview, Governor Gary Johnson cited an ACLU report that graded presidential candidates on civil liberties. Johnson said the report placed Barack Obama third, Ron Paul second, and gave the highest grade to him. He described the ACLU as an organization dedicated to the preservation of civil liberties and the Bill of Rights The Triumph of Principle Over Politics (2012).
Johnson’s use of the report came in the course of his own account of job creation as Governor of New Mexico. He said he did not create a single job but believed he had contributed to a level playing field and made job creation easier in the private sector through rules and regulations The Triumph of Principle Over Politics (2012).
Food freedom and the “Food ACLU”
In a June 2015 episode, Baylen Linnekin described the Keep Food Legal Foundation, which he founded, by analogy to two other organizations. He said he liked to characterize it either as a “Food ACLU” or, depending on the audience, a “Food NRA.” The premise he gave was that people’s food choices should be defended regardless of what they like to eat — the farmers-market shopper and the 7-Eleven shopper alike — and that government should not pick winners and losers through policies that skew food choices. The mission he stated was to protect an individual’s right to grow, raise, produce, buy, sell, share, cook, eat, and drink the foods of their own choosing, which he called his definition of “food freedom” baylen_linnekin_on_the_front_lines_of_the_fight_for_fo.
Linnekin distinguished his position from outright opposition to government. He said he favored limited government rather than no government, and that keeping cyanide out of the food supply was an absolutely legitimate role of government. He listed public health, animal rights and animal welfare, and revenue-raising as reasons government might intrude on food choices baylen_linnekin_on_the_front_lines_of_the_fight_for_fo.
Body cameras and the two-report compromise
In a June 2016 episode on police body-camera policy, Matthew Feeney described the ACLU as among the organizations pushing for a two-report compromise and as unhappy with the San Francisco plan. Under that plan, approved by the San Francisco Police Commission, an officer involved in a shooting death or an in-custody death provides a brief initial statement of facts before viewing body-camera footage and is then able to view it. Feeney said the initial report was too brief, and that organizations such as the ACLU that were pushing for the two-report compromise were not happy about this Matthew Feeney on Best Practices for Police Body Cameras (2016).
Feeney set out the competing considerations. A policy could say officers should never view footage of a shooting they were involved in before making a statement; police argue that memory is imperfect under stress, so that a statement contradicted by footage could turn an honest lapse of memory into an appearance of dishonesty. Zadek called that a “gotcha” moment. Feeney suggested as a compromise that officers fill out a report in full before viewing the footage, then view it and write another report, so the differences can be seen. He contrasted San Francisco with Oakland, where officers involved in a lethal shooting cannot view body-camera footage before making a report, and observed that the two nearby localities in the same state had very different policies Matthew Feeney on Best Practices for Police Body Cameras (2016).
Civil forfeiture at the Supreme Court
In a December 2018 episode on Timbs v. Indiana, Sam Gedge of the Institute for Justice described the amicus coalition supporting the petitioner. He said about 18 or 19 amicus briefs were filed, and that the range of groups was breathtaking: the NAACP and the Southern Poverty Law Center signed onto a brief with the Cato Institute, and the US Chamber of Commerce also appeared. Asked by Zadek whether the ACLU joined, Gedge confirmed it had, saying the ACLU had been really fantastic on issues like economic sanctions and civil forfeiture, so it was not surprising that it would weigh in Awaiting the Verdict in Timbs v. Indiana (2018).
Gedge said the breadth of support underscored that the issues — the justness and constitutionality of civil forfeiture, the potential for abuse in economic sanctions, and whether Bill of Rights protections apply to the states — cut across a cross-section of ideologies. He also discussed the Foundation for Moral Law, which Zadek said he had not previously seen on an amicus brief. Gedge said its focus was similar to that of many amici: regardless of whether the particular fine was excessive, the question had nationwide importance beyond Tyson Timbs and beyond Tyson’s car, and it is immoral for government to levy excessive fines and forfeitures on its citizens Awaiting the Verdict in Timbs v. Indiana (2018).
Gedge described the oral argument, held on November 28. He did not argue the case; his co-counsel Wesley Hottot did. Gedge said many members of the court recognized the intuitive rightness of the position, which he characterized as constitutional housekeeping — an incremental but important step to confirm that the clause applies to the states. He said the questions from the justices concerned second-tier issues such as how to determine excessiveness, which presupposed that the clause applies. By contrast, he said the state of Indiana had a rough time, with the justices skeptical of its position that the Excessive Fines Clause does not apply to the states or at least places no constraint on state police and prosecutors forfeiting property Awaiting the Verdict in Timbs v. Indiana (2018).
The New Civil Liberties Alliance as an alternative
In a June 2021 episode, Philip Hamburger described the New Civil Liberties Alliance, which he founded and led, as an alternative to the ACLU. He said the organization was founded about three or four years earlier to do what the ACLU should have been doing but has not been doing. Its work, he said, is defending procedural rights such as jury rights and due process, speech rights, and the right to govern ourselves through legislation rather than through administrative rules, all through litigation. He said the organization has a team of about 20 in Washington, D.C., and that in a few years it had gotten the Supreme Court to reconsider its non-delegation doctrine and its deference doctrines Philip Hamburger on Court Packing (2021).
Hamburger’s contrast with the ACLU came within a broader argument about court packing and the administrative state. He said that through intimidation the court has legitimized administrative power taking away most procedural rights, and that progressives who sought the administrative state now want still more power on the Supreme Court, whereas conservatives are arguing through logic for the defense of rights rather than making a power move. Zadek introduced Hamburger as the director of the Columbia Law School Center for Law and Liberty and president and founder of the New Civil Liberties Alliance Philip Hamburger on Court Packing (2021).
Across episodes
The excerpts show no single developing argument about the ACLU. Instead the organization recurs as a benchmark across episodes with different guests and different subject matters: Sullum on its internal division over hate-crime evidence in 2009, Johnson on its candidate scorecard in 2012, Linnekin borrowing its name for a food-freedom analogy in 2015, Feeney on its position in a body-camera policy dispute in 2016, Gedge on its amicus support in a forfeiture case in 2018, and Hamburger positioning his own organization against it in 2021. The later treatment does not revise the earlier ones; each guest invokes the ACLU for the purposes of his own argument.
What the sources do not cover
The excerpts do not describe the ACLU’s founding, its institutional structure, its membership, its budget, or its position on most issues. They do not state the outcome of Timbs v. Indiana, the fate of the hate-crimes bill, or the final body-camera policies in San Francisco and Oakland. Several excerpts break off mid-thought or at a section heading, and nothing in them supplies the missing conclusions.