Hurricane-Shmurricane--I Wanna Attack the ACLU Some More!

Two historic hurricanes, violence in Iraq, a controversial nomination to the Supreme Court—there’s no shortage of timely, important topics that could and should be discussed in the public forum. But Mark Hyman squanders the public’s time and airwaves on yet more attacks on the ACLU.

In his last two editorials, Hyman has charged that the ACLU is profiteering from taking cases to court and getting awarded attorney’s fees for their work.

Hyman, characteristically, leaves out some facts.

First, the law that allows the ACLU to collect compensation for representing its clients (42 U.S.C. §1988) is there to compensate those who defend the civil rights of individuals. Almost by definition, civil rights issues involve a single individual or a minority community challenging a large and powerful entity (e.g., a state or local government, a corporation, etc.). Such cases could rarely be brought if the plaintiffs had to pay for their own lawyers. Allowing the court to provide compensation to plaintiffs’ attorneys allows the ACLU and other civil rights groups to take cases without charging the individuals they represent.

Second, the fees are only awarded at the discretion of the court, and are defined by law as only covering “reasonable” expenses. It’s certainly possible that in any individual case, specific costs might seem (and be) unreasonable, but then again, attorneys’ fees in general often seem unreasonable. Hyman offers no evidence that the fees awarded to the ACLU are any more exorbitant than the going market rate for legal services.

Third, Hyman ignores the fact that the ACLU represents groups across the political and social spectrum, from Jerry Falwell and Christian conservatives to lesbian and gay rights groups. In fact, despite the fact that Hyman decries the fact that the ACLU recovered attorneys’ fees for filing suit against the Boy Scouts, the law Hyman wants changed has also helped the Boy Scouts secure legal representation. In a 2002 Florida case, the ACLU was on the side of the Boy Scouts when they filed suit against a local school board who refused to allow the Scouts to use public school facilities. The Boy Scouts’ complaint specifically invoked 42 U.S.C. §1988 to receive compensation for their legal team.

While Hyman might not like the fact that the A.C.L.U. received money for suing the Boy Scouts, there are almost certainly gay and lesbian individuals who don’t like their tax dollars being spent to support the Boy Scouts, a group that has made a point of discriminating against them.

Part of living in a democracy is dealing with the fact that some of the money you contribute to the upkeep of your society is going to be used in ways you might not choose to use it yourself. Lord knows I’d love to have the I.R.S. cut me a check for my share of the expenses paid for the war in Iraq. But we don’t get to pick and choose. In the case of 42 U.S.C. §1988, the people’s representatives have made a decision that if civil rights are going to be a reality rather than just pie-in-the-sky happy talk, we as a society should make it feasible for attorneys to spend the time and effort working for groups and individuals that rarely have the resources to go after deep-pocketed entities like the government, corporate behemoths, and national organizations.

And although compensation for representing certain plaintiffs might ruffle feathers of various groups from time to time, the fact that the law specifically mandates reasonable compensation, that the decision of what is reasonable is left up to neutral judges rather than the plaintiff’s lawyers, and that (at least in the case of the ACLU) those who might sue a group in the name of civil rights might turn around and support this same group in a different case when their rights are attacked, should be reason enough to question the ideological jihad that those like Hyman call for against civil rights groups and the legislation that protects them.

And that’s The Counterpoint.


Hyman Index “ACLU Profiteering” : 5.37
“ACLU Profiteering Prevention” : 3.64