A few years back, I was barbequing in the back yard when a friend handed me a couple of veggie burger patties. I inadvertently dropped one of the patties through the grate, fished it out with tongs, threw it behind me, and went about my day.
The next day, I noticed the patty still sitting there, unharmed by our neighborhood squirrels, raccoons, and alley cats. I didn’t think much of it until about a week later when I walked by the same spot and noticed the patty sitting exactly where I’d left it.
I felt it my solemn duty to snap a picture and text it to my friend. He needed to know what the neighborhood animals thought of his burger: They knew the difference between meat and whatever was in that patty. Why didn’t he?
That brings us to a recently implemented Missouri law, Senate Bill 627, prohibiting companies from “misrepresenting a product as meat that is not derived from harvested production livestock or poultry.” Backed by major meat producers in the state and the Missouri Cattlemen’s Association, the law went into effect in August and carries potential fines of up to $1,000 and a year in jail.
While the law’s main targets—including companies like the one that sold my friend his veggie burger—are predictable enough plaintiffs to challenge the law in court, it’s also drawing fire from the American Civil Liberties Union, which filed a motion for preliminary injunction Aug. 27. To the ACLU, this isn’t a conversation about meatless meat. It’s about stopping the state from butchering free speech.
People Have a Right to Be Wrong
In a post entitled “Tofurky Has a Right to Free Speech, Too” at the ACLU’s blog just days after the legal organization filed for preliminary injunction to put the law on hold as the court case plays out, ACLU Missouri’s legal director Anthony Rothert ripped the law as “a brazen attempt to restrict the First Amendment rights of those concerned with the effects of their food choices.”
Rothert also points out some of the law’s most potent defects. Not only is it overly broad and vague, it’s a solution in search of a problem. Furthermore, Rothert says, positioning Missouri’s new law as a consumer protection code amounts to “a bunch of bologna.”
As he winds down his post, Rothert hits full rhetorical stride:
The First Amendment is our most powerful tool to keep the government from regulating our conversations. You may not like Tofurky or have an opinion about animal-rights activism — and that’s okay. This is America, after all. But your government, or any government for that matter, shouldn’t be able to restrict truthful speech because it’s not in their interest or because it’s trying to protect a powerful lobby from market competition.
With this law, Missouri has chosen to censor the conversation around dietary decisions in service of protectionism for a favored domestic industry. Everyone who cares about the Constitution should be concerned about that, regardless of what they put on their plate.
But the ACLU Doesn’t Always Take This Stance
What’s interesting about Rothert’s argument is just how relevant it would have been in another setting—on which the ACLU remained conspicuously silent. In 2015, California passed a law, Assembly Bill 775, which threatened to force community-funded pro-life pregnancy centers to advertise free abortions in direct violation of their beliefs.
As Rothert so eloquently says about Missouri’s perceived attack on tofu speech, California’s law was “a brazen attempt to restrict the First Amendment rights of those” speaking a pro-life message, offering an alternative to abortion in the form of a free pregnancy test, free ultrasound, free boxes of diapers, and so much more.
Like Missouri’s crackdown on tofu advertising, AB 775 was a blatant attempt to protect big business—Planned Parenthood and NARAL were some of its top advocates—under the guise of consumer protection, even though current laws already guard against false advertising. Again, as Rothert says about the Missouri law, AB 775’s attack on free speech represented a solution in the absence of any real problem—aside from the fact that more women are accessing life-affirming help and rejecting abortion each year.
Finally, as a thought experiment, just read through Rothert’s rhetorical flourish, substituting “pregnancy center” for “Tofurky” as you go, and you’ll come to the same conclusion he does: “Everyone who cares about the Constitution should be concerned about that, regardless of what they” believe about abortion.
Thankfully, the U.S. Supreme Court halted AB 775 this summer in National Institute of Family and Life Advocates (NIFLA) v. Becerra, but the ACLU was never heard from in a case that was decided on the exact same First Amendment grounds to which it’s now appealing in the great burger battle of 2018.
Not that the ACLU has been silent on abortion. While it left free-speech defense to Alliance Defending Freedom (which represented NIFLA at the Supreme Court), the ACLU has stayed busy agitating for more abortions, including on college campuses and for illegal immigrants.
Incredibly, while the ACLU has chosen activism over free speech advocacy for abortion, it’s also hit the warpath against the First Amendment rights of small business owners like Barronelle Stutzman, who is being sued and harassed by the ACLU all because she declined to create a floral arrangement for the same-sex wedding of her long-time friend.
‘A Repudiation of Free-Speech Principles’
The ACLU earned its good name as First Amendment absolutists by defending the rights of neo-Nazis and others whose speech the ACLU, along with the lion’s share of the nation, found abhorrent. Most famously, the ACLU won a 1977 Supreme Court case, National Socialist Party of America v. Village of Skokie, which affirmed the right of Illinois Nazis to freely speak and assemble in a predominately Jewish town.
That reputation has fallen on hard times of late, as the ACLU has slouched from its roots as a principled First Amendment advocate to its current role of protecting free speech on a much more limited basis.
A leaked internal memo spells out 2018 guidelines that, according to former ACLU board member Wendy Kaminer, signals the latest in an ongoing retreat from the brand of unfettered free speech advocacy that once put the ACLU on the map. Now, the group’s new guidelines say its attorneys may decline cases that advance “the goals of white supremacists or others whose views are contrary to our values.”
Kaminer isn’t the only former ACLU board member sounding the alarm. Following the 2017 violence at Charlottesville, Va., approximately 200 of the ACLU’s 1,300 staff members signed a letter that calls for the very changes reflected in the memo leaked earlier this year, arguing that the group’s commitment to the First Amendment “undermined” the ACLU’s “broader mission.”
“This letter has to be seen for what it is—a repudiation of free-speech principles,” former ACLU board member Michael Myers told The New York Times.
Although the present-day ACLU has the reputation of one of the nation’s most prominent civil rights group, its principled fight against a veggie burger law in Missouri stands in stark contrast to its silence—or worse—about fighting for freedoms that are out of fashion with the ACLU’s allies on the left.
Sadly, the ACLU may be willing to grill cattle ranchers and hog farmers in the Midwest, but when it finds itself on the wrong side of Planned Parenthood or the Human Rights Campaign, it’s as useless as a counterfeit burger patty. Somebody ought to snap a picture and send it on over.