Justice Brown and the Old ACLU by Mitchell Keiter Facts As They Perceived Them (E.G

LOS ANGELES & SAN FRANCISCO

www.dailyjournal.com

TUESDAY, MARCH 19, 2019 PERSPECTIVE Justice Brown and the old ACLU By Mitchell Keiter facts as they perceived them (e.g. whether the substance possessed s a former chambers was cocaine or flour), not the un- attorney for California perceived reality. The Supreme ASupreme Court Justice Court later adopted her position Janice Rogers Brown, I was sur- in In re Jaime P. (2006). prised to read about her consid- Brown opposed “discriminato- eration for attorney general, but ry enforcement” against people stunned when the ACLU deemed “because they are black, brown, her civil liberties record “dis- or poor” when police arrested turbing.” (“California jurist’s Conrad McKay for bicycling name in pot as Sessions replace- the wrong way on a residen- ment,” Nov. 8.) Brown champi- tial street. She empathized with oned a process-based liberalism profiling victims, who could not that used to define the ACLU, obtain redress. “[M]ost victims but which it is now abandoning New York Times News Service of pre-textual stops will barely in favor of an outcome-based Justice Janice Rogers Brown of the California Supreme Court is pictured on have enough money to pay the Capitol Hill in this May 17, 2005 file photo. progressivism. The processes of traffic citation.” fair hearings, objective evalu- testimony, or even have a neutral And it would not have pre- The root problem was the ations, and free speech, the old factfinder decide the case. As sumed guilt. “Whether someone state’s treating people accord- ACLU’s priorities, are now seen Justice Arthur Gilbert recently is a ‘victim’ is a conclusion to ing to not what they did but what as impeding the new ACLU’s lamented, “It is ironic that an be reached at the end of a fair they looked like. “I do not know goals. In rejecting Brown, the institution of higher learning, process, not an assumption to be Mr. McKay’s ethnic background. ACLU rejects its own storied where American history and made at the beginning [of one] One thing I would bet on: he was legacy. government are taught, should tilted to favor a particular out- not riding his bike a few doors stray so far from the principles come.” Doe v. Brandeis Univ. down from his home in Bel Air, Due Process that underlie our democracy.” (D. Mass. 2016). Due process or Brentwood, or Rancho Palos Brown demanded fair process Regents v. Doe (2018). demands more than Lewis Car- Verdes — places where no resi- in Hagberg v. California Feder- The old ACLU, which protect- roll’s “Sentence first, verdict dent would be arrested for riding al Bank (2004), where a bank ed the right to counsel (Powell v. afterwards.” Fortunately, the the ‘wrong way’ on a bicycle. ... accused a Hispanic woman of Alabama (1932)), even for de- ACLU has rescinded some of its unless he looked like he did not fraud, and then invoked the lit- fendants too poor to afford one earlier objections. belong in the neighborhood.” igation privilege to prevent her (Gideon v. Wainwright (1963)), She distrusted governmental from proving she had been ra- the right to notice of charges and Equal Justice disregard of fair process, no mat- cially profiled. Brown objected, access to transcripts (In re Gault As an African-American child ter who benefitted. InHi-Voltage not because all Hispanic wom- (1969)), and expanded cross-ex- in the 1950s Deep South, Jus- Wire Works, Inc. v. City of San en, or all plaintiffs, must be be- amination rights (Lilly v. Virgin- tice Brown saw police enforce Jose (2000), she cited colleague lieved, but because “such falsely ia (1999)), would have agreed. segregation, and so developed a Stanley Mosk’s observation that accused individuals will have no But the new ACLU criticizes Ti- healthy skepticism of “standard- “the principle that the Constitu- opportunity to clear their name” tle IX reforms that might affect less and unconstrained police dis- tion sanctions racial discrimina- if they cannot examine the evi- outcomes: “[S]chools will likely cretion.” People v. McKay (2002). tion against a race — any race — dence. investigate far fewer complaints” Justice Brown dissented in Peo- is a dangerous concept fraught Universities nationwide have and become “less safe for survi- ple v. Robles (2000) against the with potential for misuse.” Mosk, denied students accused of sex- vors.” Due process protections rule letting officers retroactively who joined her opinion, was one ual misconduct such opportuni- have long resulted in fewer con- justify searches when the suspect of the leading civil libertarians in ty. They lack counsel, notice of victions than possible in Star was on probation (subject to ran- California history, and one of the charges against them, access to Chamber proceedings, but that is dom search) even if the officer first judges nationwide to strike evidence, an opportunity to ex- the price we pay to protect the in- did not know that. After all, crim- down racially restrictive cove- amine witnesses or present live nocent. The old ACLU knew that. inal suspects are judged on the nants. Then he refused to “us[e] ‘race’ as the measure of [one’s] “Sentence first, verdict after- critical principle that hecklers Sotomayor recently observed, worth as a citizen and neighbor,” wards,” describes not just col- may not suppress speech through “Limiting speech ... favors those and the Hi-Voltage court forbade lege disciplinary proceedings force and intimidation. who do not want to disturb the using race or sex as a measure but admissions too. Discovered But the ACLU has reduced its status quo.” Reed v. Town of Gil- of a company’s worth as a state evidence shows Harvard deter- commitment to speech, not just bert (2015). Social change needs contractor. mines its desired demographic racists’ and anti-Semites’ but free speech. All seven justices agreed the mix, and then works backwards, even its own. A Virginia ACLU There is a natural temptation Hi-Voltage program was uncon- creating a process to produce it. director tried to speak to Wil- to seek protection from ugly stitutional, though some rea- Weighing objective qualifica- liam & Mary students in 2017 on ideas. But who should decide sonably feared Brown added tions like grades, standardized “Students and the First Amend- which speech to allow? As Judge too much dicta, unnecessary to tests, and even extracurricu- ment” but Black Lives Matter Learned Hand observed, “right decide the case. With Califor- lars generates a class with “too forcibly took the stage and si- conclusions are more likely to nia now requiring set-asides like many” Asian-Americans, so lenced her. The old ACLU spoke be gathered out of a multitude those struck down in Hi-Voltage Harvard scores them on “person- up, insisting the university “has of tongues, than through any (Corp. Code, Section 301.3), al” characteristics, and conve- an obligation to protect the free- kind of authoritative selection.” perhaps she did not add enough. niently ranks them much lower dom of the speaker to speak and United States v. Associated As racial status could not mea- than everyone else, much as it not to allow one group to ... in- Press (S.D.N.Y. 1943). In other sure one’s worth as a neighbor, ranked Jews low on “character” timidate other speakers or mem- words, we benefit more from an Mosk denied it could measure almost a century ago to reduce bers of the audience who wish to open exchange of ideas where all fitness for any benefit; these must their admission numbers. hear the speaker .... Actions that may participate than a closed fo- be earned by “merit,” “objective The contrast between process bully, intimidate or disrupt must rum where government officials qualification,” and “competi- and outcome shapes economic not be without consequences.” (or tech oligarchs) tell us which tive achievement.” Price v. Civil and foreign policy too. FDR’s But the new ACLU provided speech is permitted and which is Service Commission (1980). By New Deal promised employ- “internal feedback” and forced a forbidden. contrast, New York City’s using ment, whereas AOC’s Green retraction, as that speech-protec- And the old ACLU knew that. an objective, competitive ex- New Deal guarantees income. tive statement “no longer reflect- amination to determine school Process-focused liberals note ed the Virginia ACLU’s current Mitchell Keiter is certified admissions enables “apartheid,” how Israel protects its children position.” What matters now is appellate specialist at Keiter according to the director of the in bombshelters while Hamas the speech’s outcome — wheth- Appellate Law in Beverly Hills. New York Civil Liberties Union, endangers its own as human er it advances or “impede[s] You can reach him at mitchell. because schools admit a dispro- shields and suicide bombers, progress toward equality,” so the [email protected]. portionate share of Asian-Amer- but outcome-focused progres- ACLU now considers whether icans. sives see only the disparate body speech “reflects our values” in Nothing more concisely trivial- count. deciding whether to represent izes the horror of state-enforced the speaker. Inverting Voltaire, hatred than conflating it with a Free Speech the ACLU will defend to the group’s academic success on a Free speech is a fundamental death one’s right to speak — if race-neutral exam. “Apartheid” procedural priority, and the old it agrees with her. Like judicial occurs not when groups score ACLU’s signature issue. One proceedings and objective exam- differently on a test but when a Justice Brown dissent opened by inations, the process of speech group is barred from taking the citing precedents still celebrated is superfluous if the correct out- test and attending the school al- on the ACLU website, Termin- come is already known. together. iello v. Chicago (1949), Bran- Justice Brown experienced The old ACLU knew that. denburg v. Ohio (1969), and Na- hate firsthand. But she also saw Barred from white schools as a tional Socialist Party v. Skokie speech’s transformative capac- child due to her race — not test (1977). Terminiello, especially ity to confront and expose it. scores — Justice Brown did too. relevant today, established the As Justices Alito, Kennedy, and KEITER