Snarky ACLU brief is rhetorically misguided

The West Virginia chapter of the ACLU’s snarky amicus brief, recently filed on behalf of John Oliver, his producer, HBO and Time-Warner in the defamation lawsuit against them brought by Robert E. Murray and his coal mining company, and lighting up the internet, is rhetorically misguided. In bringing his lawsuit, Murray is defending his own and his company’s honor and, more generally, the honor of the coal business, against a television segment by Oliver best described as a blend of long-form investigative journalism and late-night comedy. It is not even clear why the ACLU-WV is intervening on behalf of a generously paid cable television personality in a fight Oliver picked, and from which he is generating favorable publicity and can clearly afford to defend himself.

If the ACLU-WV’s answer is it is defending important principles of free speech, the counterpoint lies in the ACLU’s rich history defending the free speech rights of the poor and disenfranchised. In the late 1970s, the ACLU even famously defended Nazi marchers in Skokie, Illinois. Setting aside whether that, easily the most controversial use of its donor funds, was a wise one, there is no hint the effort was based upon anything but the high principle of protecting free speech. Certainly, it was not sympathy for the chapter’s clients. Nor was snark employed in those legal proceedings, presumably not least out of respect for the Jewish men and women living in Skokie, many Holocaust survivors, who were the target of the marchers’ offensive ideology.

Such controversial legal strategies are defensible because they have had the intended indirect effect of protecting better ideas’ access into the Areopagitica, the name in 1644 John Milton attached to the imaginary marketplace where free people weigh thought and ideas on their own unlicenced merits. In Brandenburg v. Ohio (1969), for example, the Supreme Court’s determination that Brandenburg’s otherwise offensive, provoking speech at a KKK rally is constitutionally protected provided some of the key federal constitutional foundation protecting civil rights protesters against arrest, particularly in the South.

Conceded, the ACLU-WV’s brief on behalf of Oliver is easily correct on the substantive legal merits of Oliver’s defenses and the deficiencies of Murray’s claims. Murray’s complaint and related motion for a temporary restraining order, rather than stating a sufficiently supported cause of action, catalogues the several ways he feels Oliver’s show has treated him unfairly and offensively, how Oliver is advancing biases, how he is unfairly embarrassing Murray, and casting public controversies regarding Murray in an unfavorable light. It’s all obviously protected speech.

“All of John Oliver’s Speech Was Protected by the First Amendment. You Can’t Sue People for Being Mean to You, Bob,” is one of the brief’s subtitles. “Anyone Can Legally Say, `Eat shit, Bob’,” is another. Generally, whether such vulgarity is right or wrong is similarly beside the point. Vulgar speech is still protected speech. In the context of a comedy broadcast, well-placed vulgarity can communicate emphasis and entertain. If at times Oliver’s routine comes across as wearyingly juvenile, for others his verbal transgressions provide welcome relief to the formality with which such otherwise important ideas are typically communicated. Moreover, skillfully employed, his wit provides contrast which frames and highlights ideas under consideration. Regarding, for example, the subtle culinary suggestion, Oliver was echoing and amplifying an iteration written on a paycheck of one of Murray’s disaffected employees returned in protest of company policies.

Such rhetorical strategies, though, carry costs. Some people are, worse than merely being offended, turned off, or never even turn on. They cease listening. A similar calculus applies in the courtroom where there are time, place and manner restrictions on speech, both express, and implied. True, attorneys too need room to develop and express their arguments. Sometimes, courtroom formalities are unnecessarily stifling. But there is reason for the decorum.

The ACLU-WV is reacting in part to Murray’s misuse of the federal forum. Murray’s complaint for damages and injunctive relief is, rather than a legal pleading, effectively a quasi-political screed. Therein, Murray defends himself, his preference for Trump, his relationship with his employees and, more generally, aligns himself with like-minded and aggrieved persons living in coal country. And, plainly, the wealthy Murray can disproportionately afford an obstreperous legal effort and the related financial risk. Objecting to this use of the federal forum, the ACLU-WV asks the district court, under Rule 11, to impose monetary sanctions on Murray.

Why, though, is the ACLU-WV even there? If it cannot be that Oliver lacks adequate access to effective legal representation, is it that the ACLU-WV is using the forum to both educate and entertain the public? Or to draw attention to itself and raise funds? That’s a publicist’s job. If Murray is dog-whistling to his base, for whom is the ACLU-WV’s winking snark directed? After all, the district court little needs such an imposition on the dignity of its proceedings to reach the correct legal outcome.

Murray’s abuse of the federal forum, then, is no justification for the ACLU-WV misusing it as well. The ACLU-WV is signaling inside the confines of a federal court that, more than being there merely to vindicate the important constitutional principles at stake, its chapter is fellow-traveling with Oliver, not the West Virginians, less sophisticated or not, who may or may not be in on the joke. Nor is the chapter winning over those who — no matter how much dishonesty and hypocrisy Oliver uncovers regarding Murray’s exploitation of his employees — still identify more with Murray than Oliver. With the ACLU-WV piling on Murray rather than focusing on the underlying principles at stake, many of those listeners will feel like they are being disrespected as well. Rather than persuading one more than the already persuaded, the amicus brief ignores and, thereby, diminishes the already marginalized.

The ACLU has a dual mission to both protect free speech and to explain to the public why free speech should be protected. But that should include to the entire public. There will be more tough cases, more cases requiring determination and courage. Murray’s case against Oliver, however, is not one of them. For that reason, the ACLU-WV should drop the schtick.