Heard About The ACLU’s Bad Amber Day?

While I’ve chronicled the ACLU’s very deliberate fall from grace, as it persists in reminding us about its defense of Skokie Nazis that happened a mere 44 years ago, I didn’t follow the defamation trial of Johnny Depp (or “Derp,” as a very serious Stanford law professor calls him) and Amber Heard over an op-ed published in the Washington Post.

It wasn’t until the jury found Heard liable and awarded compensatory and punitive damages that this case, one which surprised many lawyers by making it past a motion to dismiss for failing to suffice to establish defamatory statements, that it became interesting.

Many seemed adamant that Heard earned the verdict with her statements and testimony, somehow turning herself from the self-proclaimed personification of the abused woman victim into the evil, manipulative liar. Others didn’t really care either way about Heard, per se, but saw this as the death of #MeToo, that glorious time when women could tell their truth, even they happened to be lies, with impunity and millions of others would believe and back them for no better reason than they were insipid zealots. The only thing that mattered was that no woman should feel discouraged from accusations, true or false.

But buried within this spin was the fingers of an organization that was flush with loot from selling its endorsements to the highest bidder. No, not dying on the hill of banning books that Chase Strangio didn’t like because they didn’t elevate transgender adoration to untouchable status, Rather, ghost writing the op-ed at the center of the trial.

Having secured a $7 million divorce settlement, Heard pledged $3.5 million to the ACLU over 10 years. Just months before her op-ed appeared in The Post, Heard became an ACLU ambassador “for women’s rights, with a focus on gender-based violence.” It was a staffer at the ACLU, according to testimony from ACLU general counsel Terence Dougherty, who approached The Post’s Opinions section about publishing an op-ed bearing Heard’s byline.

The first draft came off the keyboards of the ACLU, via consultation with Heard. Four lawyers at the ACLU reviewed it to ensure that it aligned with the organization’s policy positions. Heard’s lawyers separately scrubbed it for compliance with a nondisclosure provision of her divorce settlement, according to an ACLU spokesperson.

Heard wanted to become famous as a woman abused, and the ACLU wanted to use Heard’s celebrity to pursue its free speech domestic abuse agenda, which some wag might note does not involve a constitutional right or civil liberty directly, except perhaps the generic right not to be harmed by crime.

An ACLU spokeswoman offered this statement: “As with many advocacy organizations, the ACLU often submits pieces written by a range of external advocates and leaders in support of urgent policy priorities. It is routine for the ACLU to submit written pieces in collaboration with our Artist Ambassadors, and other high profile individuals who support our work.”

The word choice in this statement is curious. There is no contention by the ACLU spokeswoman (person?) that this relates to any civil liberty, but that it is an “urgent policy priority.” And that largely sums up what’s become of a group of unduly passionate warriors whose Executive Director stole a legacy name of the organization that once defended Nazis in Skokie 44 years ago, a bold fight upon which the ACLU has fed ever since.

By sheer coincidence, because correlation does not imply causation and I would be remiss to suggest that the outing of the ACLU as the author of the Heard op-ed had anything, anything at all, to do with it, ACLU Legal Director David Cole wrote an apologia for The Nation arguing that the ACLU hadn’t abandoned free speech.

The ACLU has long been criticized for taking such stands. Think Skokie, where we defended the right of neo-Nazis to march though a largely Jewish suburb of Chicago. But these days, the criticism has changed, as commentators in The New York Times, The Wall Street Journal, The Atlantic, and The Hill, have charged that we have abandoned such work, and no longer defend those with whom we disagree. Even Bill Maher has jumped on the bandwagon. If the charges were true, that would be deeply concerning, given the ACLU’s historic role in the development and enforcement of First Amendment rights. But they aren’t true. Despite the many articles repeating this accusation, no one has yet identified a single client or cause we turned away because they were too controversial.

Ah, yes. Skokie, which shall collect interest forever in the ACLU’s excuse bank. In fact, many examples of the ACLU have been raised for the ACLU being on the anti-civil rights and liberties side of the courtroom, not to mention its public statements attacking free speech and supporting compelled speech. And let’s not even get started on its position about due process when it involves campus sex tribunals. But I digress. What do the old ACLU civil libertarians have to say about Cole’s valiant attempt at spin

Glasser says he stands by the concerns that he had expressed before, for instance when he was interviewed by Bill Maher. The new Case Selection Guidelines (which he urges people to read), he argues, are a retreat from ACLU’s traditional viewpoint-neutral approach to protecting speakers.

Wendy Kaminer was not as gentle.

[Cole’s] defense mainly consists of a general denial that ACLU is “abandoning” its free speech work (though the charge isn’t really that it has entirely abandoned the work), buttressed by a couple of examples of their defense of the right to engage in racist, anti-Semitic, or homophobic speech—supplemented by a boilerplate explanation of the importance of free speech and First Amendment rights, which is not really at issue.

Cole has a point, that the ACLU hasn’t entirely abandoned its free speech work. Rather, it’s balanced its support for free speech against its more precious priorities, the feelings of women and “marginalized” communities affected by other people’s free speech. The ACLU wrote Amber Heard’s WaPo op-ed about her being a “public figure representing domestic abuse,” whatever that means. Whether they will get the rest of the money promised for doing so is unclear, as Heard may have some big judgments to pay off in the future.