Supporting a Bad Client's Bad Position in Service of a Bad Principle is Bad

Yale Law Professor Jed Rubenfeld is representing Children's Health Defense, an anti-vaxx organization founded by Robert Kennedy Jr., in its suit against Facebook for slapping "content warnings" on their material, which spreads false conspiracies about vaccines in general and the COVID vaccines in particular. The allegation is that, since Facebook is following CDC guidance in deciding that the CHD's speech about vaccines is false and misleading, that means Facebook is effectively engaging in "state action" and so can be held liable under the First Amendment.

This would be controversial in general, and in particular since Rubenfeld is currently suspended from Yale due to sexual harassment issues. But at PrawfsBlawg, Howard Wasserman doesn't see how Rubenfeld's litigating on behalf of anti-vaxxers is different from the ACLU representing Nazis who want to march through Skokie. Both, in Wasserman's view, can be described as "the principled lawyer using civil litigation to pursue general ideals for all, albeit for the immediate benefit of the ultimate bad or unappealing person."

I have to admit, I don't share Wasserman's confusion. At least two things distinguish what Rubenfeld is doing from the ACLU's conduct in the Skokie litigation. The most obvious is that Rubenfeld has indicated that he thinks that the CHD's anti-vaccine conspiracies are true, not just constitutionally protected. The ACLU defended Nazis by saying that their speech, while abhorrent, is constitutionally protected. We'd look at them quite differently if their defense took Rubenfeld's form: "what the Nazis say about Jews is true (but even if it weren't, it'd be constitutionally protected)."

Second, the ACLU's position in Skokie was, as Wasserman states, a situation where the organization was defending a good constitutional that happened, in this case, to redound to the benefit of a bad actor.  They were, in short, defending a bad client's bad position in service of a good principle. That doesn't translate if one thinks that the legal principle that would entail a victory for CHD over Facebook would be a bad principle (and not just bad because of its results in this case). In that case, Rubenfeld would be defending a bad client's bad position in service of a bad principle, which seems fairly characterized as bad. 

The same applies to those who hopped on Trump's challenges to the 2020 Election. In addition to representing a bad client (Trump) and supporting him on the moral, not just legal, merits, and in addition to the case-specific outcome of his litigation being bad (overturning the democratic election results), the overall legal principles that would have been established (allowing states to reverse election results after the fact because they don't like the candidate who won the most votes based on specious claims of "fraud") would have been bad too. That's quite a bit of bad stacked on top of one another. And Rubenfeld, to me, seems to be in a similar circumstance, and can be judged similarly.

Big(ger) Media David: NPR Goes National

The story a local NPR affiliate did on Arizona's anti-BDS law -- currently under challenge by the ACLU -- was picked up nationwide. They actually had to reinterview me for sound quality reasons (like a true professional, I did it from my hotel room in Minneapolis), and once again I actually don't hate the sound of my own voice. Judge for yourself though (I come in towards the end).

Big Media David: NPR on Arizona's anti-BDS Law

I was interviewed by NPR's Phoenix affiliate regarding the ACLU's challenge Arizona's anti-BDS law. I was positioned as the academic expert alongside the ACLU and its client challenging the law, and the AJC and Arizona Attorney General's office, defending it. Presumably, they found me either because of this column on the Israel Anti-Boycott Act or this one on the problem with trusting state bureaucrats to fight your anti-BDS battle. So I neither came out for or against the law, but rather tried to situate it inside broader controversies balancing free speech and with anti-discrimination law. The main normative point I tried to make was that when these laws are passed primarily to score an ideological point, they aren't always written or applied with the utmost care, and that poses particular dangers in the First Amendment context.

The other interesting thing I discovered while researching the case is that the Arizona AG's office does not interpret its law as covering a boycott targeting, say, HP for its alleged complicity in human rights abuses in the West Bank. Only a general boycott of all (or virtually all) Israeli products would qualify (see pp. 8-10). Whether or not that's the correct interpretation of the statute, it is a much narrower understanding of what BDS is than is typically cast either by the movement's backers or critics.

Anyway, I think it's an interesting case (and I think the NPR story was solid, all told). Most importantly, when listening to it I didn't absolutely hate the sound of my own voice, which is a rarity for me. But on that score YMMV.

Civil Rights Roundup: 08/20/08

Your daily dose of civil rights and related news

The cellmate of a immigrant who died in US custody described the incredible pain he was in -- and how detention center staffers laughed and said he was faking.

A study finds that minority students are far more likely to be paddled in school.

A noose was found at a Chicago police station, triggering an investigation.

A Las Vegas Review Journal columnist apparently got smoked by his readers when he made the simple factual observation that the ACLU is often at the fore-front defending religious liberty.

The son of illegal immigrants is now a gold medalist in wrestling for the United States Olympic squad. So, who wants to call him an "anchor baby" now?

A transgender women (and former special forces officer) is suing after the Library of Congress withdraw a job offer after finding out she was transitioning from man to woman. I was at the hearing on transgender discrimination where she testified, and she got screwed over badly.

A new museum exhibit helps illustrate how the concept of race has evolved in America over the years.

A former border patrol agent has plead guilty to violating the civil rights of several undocumented immigrants (specifically, pistol-whipping them).

A Yonkers cop has been indicted on civil rights charges stemming from an excessive force complaint.

The State (South Carolina's flagship paper): Outreach to minority contractors and subcontractors is not a technicality.

A majority of New Jersey voters now say they are in favor of same-sex marriages.

USA Today: racial diversity is leading to political diversity in our nation's board rooms.

Civil Rights Roundup: 08/12/08

Your daily dose of civil rights and related news

An auto parts store in Houston is being sued by the EEOC for tolerating harassment of Black employees and passing over them for promotions.

PETA wants to put ads up on the Mexican side of the border fence, warning potential Mexican immigrants about the effects of fatty, meat-filled diets.

The ACLU is not thrilled with Hartford for imposing a juvenile curfew.

A Florida cop who was caught on tape beating a suspect has resigned.

Conservative groups in California will likely try to oust the current Chief Justice of the state supreme court over his role in the state's landmark gay rights ruling.

Hartford passes an ordinance prohibiting police from asking about immigration status; as well as arresting people solely for immigration violations.

A huge wave of immigrants who applied for citizenship last year should be naturalized in time to vote in this election.

I think I've come across this case before, but the Florida court which quashed a principal's outrageously anti-gay policies made the right move.

Innocent Black women shot by police; victim blamed. Not only is that title not hyperbole, but it goes downhill from there. Sickening.

On that same case, local Black leaders are furious that the officer was acquitted and are pressing for federal charges to be brought.

Word is that some of the workers building the border fence might not be documented.

A Greenville teenager beaten by a since-fired police officer has filed a civil rights lawsuit.

Florida continues to make strides towards restoring the civil rights of ex-offenders.

Three Hispanic families are suing over a Kansas school district's policy of requiring students to only speak in English while on school grounds (what if they're taking a foreign language?).

It's hard out there for a wheel chair bound individual.

Minneapolis immigrant teens, citing the importance of education, are lobbying to increase educational opportunities (particularly routes to college) for their peers.

Notaries are giving bad legal advice to immigrants (which they're not licensed to do anyway), resulting in screw-ups.

Town divided over brutal murder of immigrant, the Chicago Tribune reports. Presumably, the division is between its human beings and its psychopaths.