| American Civil Liberties Union | |
|---|---|
| Formation | 1920 |
| Headquarters | New York City |
| Membership | 500,000 members[1] |
| President | Susan Herman |
| Website | aclu.org |
The American Civil Liberties Union (ACLU) is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." (see also civil liberties)[1][2] It works through litigation, legislation, and community education.[1] The ACLU consists of two separate non-profits: the ACLU Foundation, a 501(c)(3) organization which focuses on litigation and communication efforts, and the American Civil Liberties Union, a 501(c)(4) organization which focuses on legislative lobbying.[3] Founded in 1920 by Crystal Eastman, Roger Baldwin and Walter Nelles,[4] the ACLU was the successor organization to the earlier National Civil Liberties Bureau founded during World War I.[5] The ACLU reported over 500,000 members in 2010.
Lawsuits brought by the ACLU have been influential in the evolution of Constitutional law.[6] The ACLU provides legal assistance in cases in which it considers civil liberties to be at risk. Even when the ACLU does not provide direct legal representation, it often submits amicus curiae briefs. The organization's present aims include getting the U.S. government to disclose the legal standard it uses to place U.S. citizens on government assassination lists.[7]
Outside of its legal work, the organization has also engaged in lobbying of elected officials and political activism.[8] The ACLU has been critical of elected officials and policies of both Democrats and Republicans.
The ACLU was founded on January 19, 1920, by Roger Nash Baldwin.[9] It was the first American civil rights organization that was not limited to a single special interest group, such as the NAACP.[9] The ACLU was an outgrowth of the National Civil Liberties Bureau (NCLB or CLB), which had originated in 1917. The NCLB opposed American intervention in World War I and provided legal advice and aid for conscientious objectors and those being prosecuted under the Espionage Act of 1917 or the Sedition Act of 1918. The ACLU's first director was Roger Baldwin, and Walter Nelles was chief counsel. Jeannette Rankin, Jane Addams, Crystal Eastman, Albert DeSilver, Helen Keller, along with other former members of the NCLB, assisted Baldwin with the founding of the ACLU.[1]
Among the founding members was Felix Frankfurter, who later became an Associate Justice of the Supreme Court of the United States.[10] DeSilver and Nelles were Baldwin's closest associates.[11][12]
The ACLU was formed to protect aliens threatened with deportation, along with U.S. nationals threatened with criminal charges by U.S. Attorney General Alexander Mitchell Palmer for their communist or socialist activities and agendas[13] (see Palmer Raids). It also opposed attacks on the rights of the Industrial Workers of the World (IWW) and other labor unions to meet and organize.
In 1940, the ACLU formally barred communists from leadership or staff positions, and would take the position that it did not want communists as members either. The board declared that it was "inappropriate for any person to serve on the governing committees of the Union or its staff, who is a member of any political organization which supports totalitarianism in any country, or who by his public declarations indicates his support of such a principle."[14] The purge, which was led by Baldwin, himself a former supporter of communism, began with the ouster of Elizabeth Gurley Flynn, a member of both the Communist Party USA and the Industrial Workers of the World.[15] The ACLU's chairman since its founding, Harry F. Ward, resigned in protest of the decision.[16] But, the resolution was rescinded in 1967, allowing Communist Party members to rejoin the ACLU and in 1976, the ACLU restored Elizabeth Gurley Flynn's membership posthumously.[17]
Conservatives and Republican have frequently criticized the ACLU. One well-known example occurred during the 1988 presidential election: then-Vice President George H. W. Bush noted that his opponent Michael Dukakis had described himself as a "card-carrying member of the ACLU" and used that as evidence that Dukakis was "a strong, passionate liberal" and "out of the mainstream."[18] The phrase subsequently was used by the organization in an advertising campaign.[19]
After the September 11, 2001 attacks and the ensuing debate regarding the proper balance of civil liberties and security, including the passage of the USA PATRIOT Act, the membership of the ACLU increased by 20%, bringing the group's total enrollment to 330,000.[20] The growth continued, and by August 2008 ACLU membership was greater than 500,000. It remained at that level in 2010.[21]
Currently, the leadership of the ACLU includes Executive Director Anthony Romero[22] and President Susan Herman.[23] The national board of directors consists of representatives elected by each state affiliate as well as at-large delegates elected by boards of each affiliate. Each state affiliate has an Executive Director and Board of Directors.
Notably, Ruth Bader Ginsburg, a current Justice of the Supreme Court, was the first director of the ACLU's Women's Rights Project.[24] Judith Krug, Director of the American Library Association Office for Intellectual Freedom[25] since 1967,[26] was for three years concurrently on the Board of Directors of the Illinois Division of the ACLU.
In 2005, in response to increasing internal strife, the ACLU national board attempted to impose what many critics labeled a "gag rule" on its employees. The proposal included the rule that "a board member may publicly disagree with an ACLU policy position, but may not criticize the ACLU Board or staff." The measures proved highly unpopular with free speech advocates within the ACLU, and were eventually shelved.[27]
The ACLU receives funding from a large number of sources. For example, in 2004, the ACLU and its affiliate, the American Civil Liberties Union Foundation reported revenues totaling $85,559,887. Of that total, 87% was from donations and dues from the public, 1.8% from program services, including awards of legal fees, royalty income, and literature sales, and the remainder from investment income and income from sale of assets. The distribution and amount of funding for state affiliates varies from state to state. For example, the ACLU of New Jersey reported $1.2 million in income to both the ACLU-NJ and its affiliated tax-exempt foundation in the 2005 fiscal year. Of that income, 46% came from contributions, 19% came from membership dues, 18% came from court awarded attorney fees, 12% came from grants, 4% came from investment income and the remainder from other sources. Its expenses in the same period were $800,000, of which 12% went to administration and management. Smaller affiliates with fewer resources, such as that in Nebraska, receive subsidies from the national ACLU.[28]
In October 2004, the ACLU rejected $1.5 million from both the Ford and Rockefeller Foundations because the Foundations had adopted language from the USA PATRIOT Act in their donation agreements, including a clause stipulating that none of the money would go to "underwriting terrorism or other unacceptable activities." The ACLU views this clause, both in Federal law and in the donors' agreements, as a threat to civil liberties, saying it is overly broad and ambiguous.[29]
Due to the nature of its legal work, the ACLU is often involved in litigation against governmental bodies, which are generally protected from adverse monetary judgments: a town, state or federal agency may be required to change its laws or behave differently, but not to pay monetary damages except by an explicit statutory waiver.[30][31]
In some cases, the law permits plaintiffs who successfully sue government agencies to collect money damages or other monetary relief. In particular, the Civil Rights Attorney's Fees Award Act of 1976 leaves the government liable in some civil rights cases. Fee awards under this civil rights statute are considered "equitable relief" rather than damages, and government entities are not immune from equitable relief.[32] Under laws such as this, the ACLU and its state affiliates sometimes share in monetary judgments against government agencies.[33]
The ACLU has received court awarded fees in numerous church-state cases. The Georgia affiliate was awarded $150,000 in fees after suing a county demanding the removal of a Ten Commandments display from its courthouse;[34] a second Ten Commandments case in the State, in a different county, led to a $74,462 judgment.[35] Meanwhile, the State of Tennessee was required to pay $50,000, the State of Alabama $175,000, and the State of Kentucky $121,500, in similar Ten Commandments cases.[36][37] The Public Expression of Religion Act of 2005, introduced by Representative John Hostettler, sought to alter the rules put in place by the Civil Rights Attorney's Fees Award Act of 1976 to prevent monetary judgments in the particular case of violations of church-state separation.[38] Also, groups such as the American Legion have taken stances opposing the ACLU's right to collect fees under such legislation.[39]
The national headquarters of the ACLU is located in New York City. The organization does most of its work through 54 locally based affiliates and associated chapters, each of which have staff and a board of directors. The affiliates generally correspond to state (or equivalent) lines; Washington, D.C. and Puerto Rico each have an affiliate and California has three affiliates (Missouri has two, with Western Missouri combined with Kansas).[40] These affiliates maintain a certain amount of governing autonomy from the national organization, and are able to work independently from each other, if they choose to do so. Many of the ACLU's cases originate or are handled from the local level and are also handled by local lawyers from the individual affiliates.
Affiliates (the state organizations) are the basic unit of the ACLU's organization and engage in litigation, lobbying, and public education. For example, in a twenty-month period beginning January 2004, the ACLU's New Jersey chapter was involved in fifty-one cases according to their annual report—thirty-five cases in state courts, and sixteen in federal court. They provided legal representation in thirty-three of those cases, and served as amicus in the remaining eighteen. They listed forty-four volunteer attorneys who assisted them in those cases.
Each legal foundation and political affiliate is registered as a 501(c)(3) and 501(c)(4) entity, respectively.
While the bulk of the ACLU's cases involve the First Amendment, Equal Protection, due process, and the right to privacy,[41] the organization has taken positions on a wide range of issues. According to the ACLU, it supports:
The ACLU supports Religious liberty: Defends the individual rights of Americans of all religions to practice and/or display affirmations of their faith in public, but not on public property with government sponsorship or endorsement.[42][43]
The ACLU supports Drug policy reform to reduce harm and promote sustainable health and well-being by bringing about a just, effective and humane system to regulate and control drugs.[44]
The ACLU supports Separation of church and state; under this mandate, the ACLU opposes the government-sponsored display of religious symbols on public property. The ACLU also opposes official prayers, religious ceremonies, and some kinds of "moments of silence"[45] in public schools or schools funded with public money.
The ACLU supports almost full freedom of speech and of the press, including school newspapers and points of view even most ACLU members disagree with. The ACLU said to a House Subcommittee:[46]:
The best antidote to harmful speech is more speech expressing countervailing messages. It is far better in this context, then, to do the best possible job to oppose the messages with which we disagree than to stifle them and drive them underground. Not only will we stand by the principles we hold dear, we will show that we are not afraid of dissent and that we will stand toe-to-toe with all comers and stand proud of our faith in our institutions and principles.
The ACLU accepts reasonable freedom of expression limits.[46] These include restrictions on intimidation, Libel, and information related to National Security if it would result in "direct, immediate, and irreparable" harm to the nation.
The ACLU supports abolition of capital punishment.[47] *The ACLU opposes the use of capital punishment, calling it "the ultimate denial of civil liberties."[48] The ACLU claims that the death penalty is unfairly applied to racial minorities and the poor, and considers it "cruel and unusual" punishment.[49] The organization often opposes executions on the grounds that the present method of lethal injection sometimes goes awry.[50]
The ACLU supports Reproductive rights, including access to contraception and abortion.
The ACLU supports full civil rights for LGBT (lesbian, gay, bisexual and transgender) people, including government benefits for same-sex couples equal to those provided for heterosexual ones.
The ACLU supports affirmative action as a means of redressing past discrimination and achieving a racially diverse student body.[51]
The ACLU supports the rights of defendants and suspects against unconstitutional police practices.
The ACLU supports privacy rights as it "works to preserve the American tradition that the government not track individuals or violate privacy unless it has evidence of wrongdoing."[52]
The ACLU supports immigrants' rights by "challenging unconstitutional laws and practices, countering the myths upon which many of these laws are based."[53]
Concerning the Second Amendment, specifically gun control, "the ACLU interprets the Second Amendment as a collective right. Therefore, we disagree with the Supreme Court’s decision in D.C. v. Heller. Heller takes a different approach than the ACLU has advocated. At the same time, it leaves many unresolved questions, including what firearms are protected by the Second Amendment, what regulations (short of an outright ban) may be upheld, and how that determination will be made."[54] However, state level ACLU affiliates are free to take positions differing from the national organization's; in 2008, the Nevada ACLU announced that they were changing their position to support "the individual’s right to bear arms subject to constitutionally permissible regulations."[55]
The ACLU has opposed some campaign finance reform laws such as the Bipartisan Campaign Reform Act, which it considers an inappropriate restriction upon freedom of expression. It does not have a policy of blanket opposition to all laws on campaign finance.[56]
While the ACLU does oppose the use of crosses in public monuments,[57] there have been false allegations that the ACLU has urged the removal of cross-shaped headstones from federal cemeteries and has opposed prayer by soldiers; such charges have been deemed to be urban legends.[58]
The ACLU has for years been a controversial organization.[59] The reasons for opposition are varied, although conservatives often view the ACLU stance of separation of church and state as anti-religious,[60] and their defense of both accused and convicted criminals as undermining law and order. Furthermore, the nature of the ACLU is that they defend even the most unpopular forms of speech and expression, notably those with which most other organizations would not wish to associate themselves. Often, its clients are notoriously unpopular such as Neo-Nazi organizations and the North American Man/Boy Love Association (NAMBLA), a group which supports lifting all age restrictions on pederasty. In the case of NAMBLA, the ACLU's Massachusetts affiliate represented the organization, on first amendment grounds, in a wrongful death civil suit that was based solely on the fact that a man who raped and murdered a child had visited the NAMBLA website.[61] Although the ACLU does not endorse NAMBLA's message, its defense of the group has been widely criticized. Additionally, the ACLU has joined several court cases against government funding of organizations that discriminate against homosexuals and atheists, prominently including the Boy Scouts of America.[62]
Since its founding, the ACLU has been involved in many cases. A few of the most significant are discussed here.
The predecessor to the ACLU was the National Civil Liberties Bureau (CLB).[63] The CLB was founded by Crystal Eastman and Roger Baldwin in 1920.[64] Supporters of the CLB generally fell into one of three groups: social reformers, Protestant clergy, and conservative lawyers.[65] The focus of the CLB was on freedom of speech, primarily anti-war speech, and on supporting conscientious objectors who wished to avoid serving in World War I.[66]
Three Supreme Court decisions in 1919 each upheld convictions outlawing certain kinds of anti-war speech. In 1919, Socialist party leader Charles Schenck's conviction for publishing anti-war literature was upheld by the Supreme Court.[67] Then, in Debs v. United States, the court upheld the conviction of Eugene Debs. But five months later, justice Oliver Wendell Holmes wrote an important dissent in Abrams v. United States, in which he urged the court to treat freedom of speech as a fundamental right, which should only rarely be outlawed.[68]
In 1918, Baldwin became the primary leader of the CLB, as Eastman succumbed to ill health.[69] Baldwin insisted that the organization be reorganized, and change its focus from litigation to direct action and public education.[70] The CLB directors concurred, and on January 19, 1920, the ACLU was formed.[70] Although there were a handful of other organizations in the United States at that time that focused on civil rights, such as the NAACP and Anti-Defamation League, the ACLU was the first that did not limit itself to a particular group of persons, or to a single theme.[70]
During its first decades of its existence, Baldwin continued to be the leader of the ACLU. His charisma and energy attracted many supporters to ACLU leadership ranks.[71] Baldwin was was a very ascetic individual, who wore hand-me-down clothes, pinched pennies, and lived on a very small salary.[72] The ACLU was directed by an executive committee, but the committee was not particularly democratic or egalitarian: since the ACLU was headquartered in New York, the executive committee was dominated by New Yorkers.[73] Most ACLU funding came from philanthropies, such as the Garland Fund.[74]
In the 1920s, government censorship was commonplace. Magazines were routinely confiscated under the anti-obscenity Comstock laws; permits for labor rallies were often denied; and virtually all anti-war or anti-government literature was outlawed.[75] Right-wing conservatives wielded vast amounts of power, and activists that promoted unionization, socialism, or government reform were often denounced as un-American or un-patriotic.[76] In one typical instance in 1923, author Upton Sinclair was arrested for trying to read the First Amendment during an Industrial Workers of the World rally.[77]
ACLU leadership was divided on how to challenge the civil rights violations. One faction, including Baldwin, Arthur Garfield Hays and Norman Thomas, believed that direct, militant action was the best path.[78] Hays was the first of many successful attorneys that relinquished their private practices to work for the ACLU.[79] Another group, including Walter Nelles and Walter Pollak felt that lawsuits, taken to the Supreme Court, were the best way to achieve change.[79] Both groups worked in tandem, but they equally worshiped the Bill of Rights and the US Constitution.[79]
During the 1920s, the ACLU's primary focus was on freedom of speech in general, and speech within the labor movement particularly.[80] Because most of the ACLU's efforts were associated with the labor movement, the ACLU itself came under heavy attack from conservative groups, such as the American Legion, the National Civic Federation, and Industrial Defense Association and the Allied Patriotic Societies.[81]
In addition to labor, the ACLU also led efforts in non-labor arenas, for example, promoting free speech in public schools.[82] The ACLU itself was banned from speaking in New York public schools in 1921.[83] The ACLU, working with the NAACP, also supported racial discrimination cases.[84] The ACLU defended free speech regardless of the opinions being espoused. For example, the reactionary, anti-Catholic, anti-black Ku Klux Klan (KKK) was a frequent target of ACLU efforts, but the ACLU defended the KKK's right to hold meetings in 1923.[85] There were some civil rights that the ACLU did not make an effort to defend in the 1920s, including censorship of the arts, government search and seizure issues, right to privacy, or wiretapping.[86]
The Communist party of the United States was routinely harassed and oppressed by government officials, leading it to be the primary client of the ACLU.[87] The Communists were very agressive in their tactics, often engaging in illegal or unethical conduct, and this led to frequent conflicts between the Communists and the ACLU.[87] Communist leaders often attacked the ACLU, particularly when the ACLU defended the free speech rights of conservatives.[87] This uneasy relationship between the two groups would continue for decades.[87]
When 1925 arrived – after five years of activity – the ACLU had virtually no success to show for its efforts.[88] That changed in 1925, when the ACLU persuaded John T. Scopes to defy Tennessee's anti-evolution law in a court test. Clarence Darrow, a member of the ACLU National Committee, headed Scopes' legal team. The prosecution, led by William Jennings Bryan, contended that the Bible should be interpreted literally in teaching creationism in school. The ACLU lost the case and Scopes was fined $100. The Tennessee Supreme Court later upheld the law but overturned the conviction on a technicality.[89][90]
The Scopes trial was a phenomenal public relations success for the ACLU.[91] The ACLU became well known across America, and the case led to the first endorsement of the ACLU by a major U.S. newspaper.[92] The ACLU continued to fight for the separation of church and state in schoolrooms, decade after decade, including the 1982 case McLean v. Arkansas and the 2005 case Kitzmiller v. Dover Area School District.[93]
Baldwin himself was involved an important free speech victory of the 1920s, after he was arrested for attempting to speak at a rally of striking mill workers in New Jersey. Although the decision was limited to the state of New Jersey, the appeals court's judgement in 1928 declared that constitutional guarantees of free speech must be given "liberal and comprehensive construction", and it marked a major turning point in the civil rights movement, signaling the shift of judicial opinion in favor of civil rights.[94]
The most important ACLU case of the 1920s was Gitlow v. New York, in which Benjamin Gitlow was arrested for violating a state law against inciting anarchy and violence, when he distributed literature promoting communism.[95] Although the Supreme Court did not overturn Gitlow's conviction, it adopted the ACLU's stance (later termed the incorporation doctrine) that the First Amendment freedom of speech applied to state laws, as well as federal laws.[96]
Leaders of the ACLU were divided on the best tactics to use to promote civil liberties. Felix Frankfuter felt that legislation was the best long-term solution, because the Supreme Court could not (and – in his opinion – should not) mandate liberal interpretations of the Bill of Rights. But Walter Pollack, Morris Ernst, and other leaders felt that Supreme Court decisions were the best path to guarantee civil liberties.[97] A series of Supreme Court decisions in the 1920s foretold of a changing national atmosphere: antiradical emotions were diminishing, and there was a growing willingness to protect freedom of speech and assembly via court decisions.[98]
Censorship was commonplace in the early 20th century. State laws and city ordinances routinely outlawed speech deemed to be obscene or offensive, and prohibited meetings or literature that promoted unions or labor organization. Starting in 1926, the ACLU began to expand its free speech activities to encompass censorship of art and literature.[99] In that year, H. L. Mencken deliberately broke Boston law by The ACLU only achieved mixed results in the early years, and it was not until 1966 that the Supreme Court finally clarified the obscenity laws in the Roth v. United States and Memoirs v. Massachusetts cases.
The Comstock laws banned distribution of sex education information, based on the premise that it was obscene and led to promiscuous behavior[100] Mary Ware Dennett was fined $300 in 1928, for distributing a pamphet containing sex education material. The ACLU, led by Morris Ernst, appealed her conviction and won a reversal, in which judge Learned Hand ruled that the pamphlet's main purpose was to "promote understanding".[100]
The success prompted the ACLU to broaden their freedom of speech efforts beyond labor and political speech, to encompass movies, press, radio and literature.[100] The ACLU formed the National Committee on Freedom from Censorship in 1931 to coordinate this effort.[100]
The ACLU went on to win additional victories, including the landmark case United States v. One Book Called Ulysses in 1933, which reversed a ban by the Customs Department against the book Ulysses (novel) by James Joyce.[101] By the early 1930s, censorship in the United States was diminishing.[101]
Two major victories in the 1930s cemented the ACLUs campaign to promote free speech. In Stromberg v. California, decided in 1931, the Supreme Court sided with the ACLU and affirmed the right of a communist party member to salute a communist flag. The result was the first time the Supreme Court used the Due Process Clause of the 14th amendment to subject states to the requirements of the first amendment.[102] In Near v. Minnesota, also decided in 1931, the Supreme Court ruled that states may not exercise prior restraint and prevent a newspaper from publishing, simply because the newspaper had a reputation for being scandalous.[103]
In 1929, after the Scopes and Dennett victories, Baldwin perceived that there was vast, untapped support for civil liberties in the United States.[101] Baldwin proposed an expansion program for the ACLU, focusing on police brutality, Native American rights, African-American rights, censorship in the arts, and international civil liberties.[101] The board of directors approved Baldwin's expansion plan, except for the international efforts.[104]
The ACLU played a major role in passing the 1932 Norris – La Guardia Act, a federal law which prohibited employers from preventing employees from joining unions, and stopped the practice of outlawing strikes, unions, and labor organizing activities with the use of injunctions.[104]
The ACLU also played a key role in initiating a nationwide effort to reform police departments, by publishing the report Lawlessness in Law Enforcement in 1931, under the auspices of Herbert Hoover's Wickerham Commission.[104]
The ACLU lobbied for the passage of the 1934 Indian Reorganization Act, which restored some autonomy to Native American tribes, and established penalties for kidnapping native American children.[104]
Although the ACLU deferred to the NAACP for litigation promoting civil liberties for African Americans, the ACLU did engage in educational efforts, and published Black Justice in 1931, a report which documented institutional racism throughout the South, including lack of voting rights, segregation, and discrimination in the justice system.[105] Funded by the Garland Fund, the ACLU also participated in producing the influential Margold Report, which outlined a strategy to fight for civil rights for blacks.[106][107] The ACLU's plan was to demonstrate that the "separate but equal" policies governing the Southern discrimination were illegal because blacks were never, in fact, treated equally.[106]
In 1932 – twelve years after the ACLU was founded – it had achieved significant success: the Supreme Court had embraced the free speech principles espoused by the ACLU, and the general public was becoming more supportive of civil rights in general.[108] But the Great Depression brought new assaults on civil liberties: the year 1930 saw a large increase in the number of free speech prosecutions, a doubling of the number of lynchings, and all meetings of unemployed persons were banned in Philadelphia.[109]
The Roosevelt administration proposed the New Deal to combat the depression. ACLU leaders were of mixed opinions about the New Deal, since many felt that it represented an increase in government intervention into personal affairs, and because the National Recovery Administration suspended anti-trust legislation.[110] Roosevelt was not personally interested in civil rights, but did appoint many civil libertarians to key positions, including Interior Secretary Harold Ickes, a member of the ACLU.[110][111]
The economic policies of the New Deal leaders were often aligned with ACLU goals, but social goals were not.[111] In particular, movies were subject to a barrage of local ordinances banning screenings that were deemed immoral or obscene.[112] The ACLU lost several censorship battles in the 1930s, including a Chicago ban on the movie The Fight for Life.[113]
The Catholic church attained increasing political influence in the 1930s, and used its influence to promote censorship of movies, and to discourage publication of birth control information. This conflict between the ACLU and the Catholic church led to the resignation of the last Catholic priest from ACLU leadership in 1934; a Catholic priest would not be represented there again until the 1970s.[114]
The ACLU took no official position on President Roosevelt's 1937 court-packing plan, which threatened to increase the number of supreme court justices, unless the supreme court reversed its course and began approving New Deal legislation.[115] The Supreme Court responded by making a major shift in policy, and no longer applied strict constitutional limits to government programs, and also began to take a more active role in protecting civil liberties.[115]
The first decision that marked the court's new direction was De Jonge v. Oregon, in which a communist labor organizer was arrested for calling a meeting to discuss unionization.[116] The ACLU attorney Osmond Fraenkel, working with International Labor Defense, defended De Jonge in 1937, and won a major victory when the Supreme Court ruled that "peaceable assembly for lawful discussion cannot be made a crime."[117]
The De Jong case marked the start of an era lasting for a dozen years, during which Roosevelt appointees (led by Hugo Black, William O. Douglas, and Frank Murphy) established a body of civil liberties law.[116] In 1938, Justice Harlan F. Stone wrote the famous "footnote four" in United States v. Carolene Products Co. in which he suggested that state laws which impede civil liberties would – henceforth – require compelling justification.[118]
Senator Robert F. Wagner proposed the National Labor Relations Act in 1935, which empowered workers to unionize. Ironically, the ACLU, after 15 years of fighting for workers rights, took no stand on the legislation, because some ACLU leaders feared the increased power the bill gave to the government.[119] The newly formed National Labor Relations Board (NLRB) posed a dilemma for the ACLU, because in 1937 it issued an order to Henry Ford, prohibiting Ford from disseminating anti-union literature.[120] Part of the ACLU leadership habitually took the side of labor, and that faction supported the NLRB's action.[120] But part of the ACLU supported Ford's right to free speech.[120] ACLU leader Arthur Garfield Hays proposed a compromise (supporting the auto workers union, yet also endorsing Ford's right to express personal opinions), but the schism highlighted a deeper divide that would become more prominent in the years to come.[120]
The ACLU's support of the NRLB was a major development for the ACLU, because it marked the first time it accepted that a government agency could be responsible for upholding civil liberties.[121] Until 1937, the ACLU felt that civil rights were best upheld by citizens and private organizations.[121]
Some factions in the ACLU proposed new directions for the organization. In the late 1930s, some local affiliates proposed shifting their emphasis from civil liberties appellate actions, to becoming a legal aid society, centered on store front offices in low income neighborhoods. The ACLU directors rejected that proposal.[122] Other ACLU members wanted the ACLU to shift focus into the political arena, and to be more willing to compromise their ideals in order to strike deals with politicians. This initiative was also rejected by the ACLU leadership.[122]
The ACLU has often defended groups that were unpopular. Indeed, unpopular defendants have produced some landmark court cases and established new civil liberties.[118] The Jehovah's Witnesses were involved in a large number of Supreme Court cases, and the ACLU supported them in most cases.[118][123] Cases that the ACLU supported included Lovell v. Griffin (which struck down a city ordinance required a permit before a person could distribute "literature of any kind"); Martin v. Struthers (struck down an ordinance prohibiting door-to-door canvassing); and Cantwell v. Connecticut (which reversed the conviction of a Witness that was reciting offensive speech on a street corner).[124]
The most important cases involved statutes requiring flag salutes.[124] The Jehovah's Witnesses felt that saluting a flag was contrary to the their religious beliefs. Two children were convicted in 1938 of not saluting the flag.[124] The ACLU supported their appeal to the Supreme Court, but the court affirmed the conviction, in 1940.[125] But three years later, in West Virginia State Board of Education v. Barnette, the Supreme court reversed itself and wrote "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." To underscore its decision, the Supreme Court announced it on Flag Day.[125][126]
The late 1930s saw the emergence of a new era of tolerance in the United States.[127] National leaders hailed the Bill of Rights, particularly as it protected minorities, as the essence of democracy.[127] The 1939 Supreme Court decision in Hague v. Committee for Industrial Organization affirmed the right of communists to promote their cause.[127] Even conservative elements, such as the American Bar Association began to campaign for civil liberties, which were long considered to be the domain of left-leaning organizations. By 1940, the ACLU had achieved many of the goals it set in the 1920s, and many of its policies were the law of the land.[127]
The rise of totalitarianism in Germany, Russia, and Italy during World War II had a tremendous impact on the civil liberties movement. On the one hand, the oppression of the totalitarian states put into sharp relief the virtue of freedom of speech and association in the United States; on the other hand, they prompted an anti-communist hysteria in America which eroded many civil liberties.[128]
The ACLU leadership was torn on whether or not to defend pro-Nazi speech in the United States: pro-labor elements within the ACLU were hostile towards Nazism and fascism, and objected when the ACLU defended Nazis.[129] Several states passed laws outlawing the hate speech directed at ethnic groups.[130] The first person arrested under New Jersey's 1935 hate speech law was a Jehovah's Witness who was charged with disseminating anti-Catholic literature.[130] The ACLU defended the Jehovah's Witnesses, and the charges were dropped.[130] The ACLU proceeded to defend numerous pro-Nazi groups, defending their rights to free speech and free association.[131]
In the late 1930s, the ACLU allied itself with the Popular Front, a coalition of liberal organizations coordinated by the United States Communist Party.[132] The ACLU benefited because affiliates from the Popular Front could often fight local civil rights battles much more effectively than the New York-based ACLU.[132] The association with the Communist Party led to accusations that the ACLU was a "communist front", particularly because Harry F. Ward was both chairman of the ACLU and chairman of the American League Against War and Fascism, a communist organization.[133]
The House Unamerican Activities Committee (HUAC) was created in 1938 to uncover sedition and treason within the United States.[134] While witnesses testified at its hearings, the ACLU was mentioned several times, leading the HUAC to mention the ACLU prominently in its 1939 report.[135] This damaged the ACLU's reputation severely, even though the report said that it could not "definitely state whether or not" the ACLU was a communist organization.[135]
While the ACLU rushed to defend it image against allegations of being a communist front, it also worked to protect witnesses who were being harassed by the HUAC.[136] The ACLU was one of the few organizations to protest (unsuccessfully) against passage of the Smith Act in 1940, which would later be used to imprison many persons who supported Communism.[137][138] The ACLU defended many persons who were prosecuted under the Smith Act, including labor leader Harry Bridges.[139]
ACLU leadership was split on whether to purge its leadership of communists. Norman Thomas, John Haynes Holmes, and Morris Ernst were anti-communists that wanted to distance the ACLU from communism; opposing them were Harry Ward, Corliss Lamont and Elizabeth Flynn who rejected any political test for ACLU leadership.[140] A bitter struggle ensued throughout 1939, and the anti-communists prevailed in February 1940, when the board voted to prohibit anyone who supported totalitarianism from ACLU leadership roles. Chairman Harry Ward immediately resigned, and – following a contentious six hour debate – legendary activist Elizabeth Flynn was voted off the ACLU's board.[141] The 1940 resolution was a disaster for the ACLU, and considered by many to be a betrayal of its fundamental principles. The resolution was rescinded in 1968, and Flynn was posthumously reinstated to the ACLU in 1970.[139]
When World War II engulfed the United States, the Bill of Rights was enshrined as a hallowed document, and numerous organizations defended civil liberties.[142] Chicago and New York proclaimed "Civil Rights" weeks, and the President announced a national Bill of Rights day. Eleanor Roosevelt was the keynote speaker at the 1939 ACLU convention.[142] In spite of this newfound respect for civil rights, Americans were becoming adamantly anti-communist, and believed that excluding communists from American society was an essential step to preserve democracy.[142]
Unlike World War I, there was little violation of civil liberties during World War II. Roosevelt was a strong supporter of civil liberties, but – more importantly – there were few anti-war activists during World War II.[143] The most significant civil rights issue during the war was the internment of Japanese-Americans.[143] Two months after the Japanese attack on Pearl Harbor, Roosevelt authorized the detention of all Japanese-Americans in internment camps. In addition to encompassing Japanese citizens, it also swept up American citizens of Japanese ancestry.[144] The ACLU immediately protested to Roosevelt, comparing the evacuations to Nazi concentration camps.[145] Not all ACLU leaders wanted to defend the Japanese-Americans: Roosevelt loyalists such as Morris Ernst wanted to support Roosevelt's war effort, but pacifists such as Baldwin and Norman Thomas felt that the Japanese-Americans needed individual due process hearings before they were imprisoned.[146] The ACLU was the only major organization that objected to the relocation plan,[143] and their position was very unpopular. ACLU attorney A. L. Wirin lost private clients because of his defense of Japanese-Americans.[147]
The ACLU wanted a test case to take to court, but they had a difficult time finding a violator: of the 120,000 Japanese-Americans affected by the order, only 12 disobeyed, and four of those led to Supreme Court cases.[145] The ACLU managed two of the cases. In early 1943, the Supreme court, in Hirabayashi v. United States, upheld the government's right to intern the Japanese-Americans.[148] In late 1944, the second case Korematsu v. United States, also upheld the government's right to relocate the Japanese-Americans.[149] Their convictions were later overturned in the 1980s.[150]
Although the ACLU defended the Japanese-Americans, it was more reluctant to defend anti-war protestors. A majority of the board passed a resolution in 1942 which declared the ACLU unwilling to defend anyone who interfered with the United State's war effort.[151]
When the war ended in 1945, the ACLU was 25 years old, and had accumulated an impressive set of legal victories.[152] President Harry S. Truman sent a congratulatory telegram to the ACLU on the occasion of their 25th anniversary.[152] American attitudes had changed since World War I, and dissent by minorities was tolerated with more willingness.[152] The Bill of Rights was more respected, and minority rights were becoming more commonly championed.[152] During their 1945 annual conference, the ACLU leaders composed a list of important civil rights issues to focus on in the future, and the list included racial discrimination and separation of church and state.[153]
The ACLU supported the African-American defendants in Shelley v. Kraemer, when they tried to occupy a house they had purchased in a neighborhood which had racially restrictive housing covenants. The African-American purchasers won the case in 1945.[154]
During the Cold War, although the United States collectively ignored the civil rights of communists, other civil liberties–such as due process in law and separation of church and state–continued to be reinforced and even expanded.
Anti-communist sentiment gripped the United States beginning in 1946. Federal investigations caused many persons with communist or left-leaning affiliations to lose their jobs, become blacklisted, or be jailed.[155] The ACLU leadership was divided on how to deal with the anti-communist purges and attacks. Some ACLU leaders were anti-communist, and felt that the ACLU should not defend any victims. Some ACLU leaders felt that communists were entitled to free speech protections, and the ACLU should defend them. Other ACLU leaders were uncertain about the threat posed by communists, and tried to establish a compromise between the two extremes.[156] This ambivalent state of affairs would last until 1954, when the civil liberties faction prevailed, leading to the resignation of most of the anti-communist leaders.[157]
In 1947, president Truman issued Executive Order 9835 which created the Federal Loyalty Program. This program authorized the Attorney General to create a list of organizations which were deemed to be subversive.[158] Any association with these programs was ground for barring the person from employment.[159] Listed organizations were not notified that they were being considered for the list, nor did they have an opportunity to present counterarguments; nor did the government divulge any factual basis for inclusion in the list.[160] Although ACLU leadership was divided on whether to challenge the Federal Loyalty Program, some challenges were successfully made.[160]
Also in 1947 the House Unamerican Activities Committee (HUAC) subpoened ten Hollywood directors and writers, the Hollywood Ten, intending to ask them to identify Communists, but the witnesses refused to testify. All were imprisoned for contempt of Congress. The ACLU supported the appeals of several of the artists, but lost on appeal.[161]
The Hollywood establishment panicked after the HUAC hearings, and created a blacklist which prohibited anyone with leftist associations from working. The ACLU supported legal challenges to the blacklist, but those challenges failed.[161] The ACLU was more successful with an education effort: the 1952 report The Judges and the Judged, prepared at the ACLU's direction in response to the blackisting of actress Jean Muir, described the unfair and unethical actions behind the blacklisting process, and it helped gradually turn public opinion against McCarthyism.[162]
The federal government took direct aim at the U. S. communist party in 1948 when it indicted its top twelve leaders.[163] The case hinged on whether or not mere membership in a totalitarian political party was sufficient to conclude that members advocated the overthrow of the United States government.[163] The ACLU chose to not represent any of the defendants, and they were all found guilty and sentenced to three to five years in prison.[163] Their defense attorneys were all cited for contempt, went to prison and were disbarred.[152] When the government indicted additional party members, the defendants could not find attorneys to represent them.[152]
Communists protested outside the courthouse, and a bill to outlaw picketing of courthouses was introduced in Congress, and the ACLU supported the anti-picketing law.[152]
The ACLU, in a change of heart, supported the party leaders during their appeal process. The Supreme Court upheld the convictions in the Dennis v. United States decision by softening the free speech requirements from a "clear and present danger" test, to a "grave and probable" test.[164] The ACLU issued a public condemnation of the Dennis decision, and resolved to fight it.[164] One reason for the Supreme Court's support of cold war legislation was the 1949 deaths of Supreme Court justices Frank Murphy and Wiley Rutledge, leaving Hugo Black and William O. Douglas as the only remaining civil libertarians on the Court.[165]
The Dennis decision paved the way for the prosecution of hundreds of other communist party members.[166] The ACLU supported many of the communists during their appeals (although most of the initiative originated with local ACLU affiliates, not the national headquarters) but most convictions were upheld.[166] The two California affiliates, in particular, felt the national ACLU headquarters was not supporting civil liberties strongly enough, and they initiated more cold war cases than the national headquarters did.[167]
The ACLU also challenged many loyalty oath requirements across the country, but the courts upheld most of the loyalty oath laws.[168] California ACLU affiliates successfully challenged the California state loyalty oath.[169]
The Supreme Court, until 1957, upheld nearly every law which restricted the liberties of communists.[170]
The ACLU, even though it scaled back its defense of communists during the Cold War, still came under heavy criticism as a "front" for communism. Critics included the American Legion, senator Joseph McCarthy, the HUAC, and the FBI.[171] Several ACLU leaders were sympathetic to the FBI, and as a consequence, the ACLU rarely investigated any of the many complaints about the FBI's abuse of power during the Cold War.[172]
In 1950, the ACLU board of directors asked executive director Baldwin to resign, feeling that he lacked the organizational skills to lead the 9,000 (and growing) member organization. Baldwin objected, but a majority of the board elected to remove him from the position, and he was replaced by Patrick Murphy Malin.[173] Under Malin’s guidance, membership tripled to 30,000 by 1955 – the start of a 24 year period of continual growth leading to 275,000 members in 1974. .[174] Malin also presided over an expansion of local ACLU affiliates.[174]
The ACLU, which had been controlled by an elite of a few dozen New Yorkers, became more democratic in the 1950s. In 1951, the ACLU amended its bylaws to permit the local affiliates to participate directly in voting on ACLU policy decisions.[175] A bi-annual conference, open to the entire membership, was instituted in the same year, and in later decades it became a pulpit for activist members, who suggested new directions for the ACLU, including abortion rights, death penalty, and rights of the poor.[175]
During the early 1950s, the ACLU continued to steer a moderate course through the Cold War. When leftist singer Paul Robeson was denied a passport in 1950, even though he was not a communist and not accused of any illegal acts, the ACLU chose to not defend him.[176] The ACLU later reversed their stance, and supported William Worthy and Rockwell Kent in their passport confiscation cases, which resulted in victories in the late 1950s.[177]
n response to communist witch-hunts, many witnesses and employees chose to use the Fifth amendment protection against self-incrimination to avoid divulging information about their political beliefs.[178] Government agencies and private organizations, in response, established polices which inferred communist party membership for anyone who pled the fifth amendment.[179] The national ACLU was divided on whether to defend employees who had been fired merely for pleading the fifth amendment, but the New York affiliate successfully assisted teacher Harry Slochower in his Supreme Court case which reversed his termination.[180]
The firth amendment issue became the catalyst for a watershed event in 1954, which finally resolved the ACLU’s ambivalence by ousting the anti-communists from ACLU leadership.[181] In 1953, the anti-communists, led by Norman Thomas and James Fly, proposed a set of resolutions that inferred guilt of persons that pled the fifth.[182] These resolutions were the first that fell under the new rules permitting local ACLU affiliates to participate in the vote; the affiliates outvoted the national headquarters, and rejected the anti-communist resolutions.[183] Anti-communists leaders refused to accept the results of the vote, and brought the issue up for discussion again at the 1954 bi-annual convention.[184] ACLU member Frank Graham, president of the University of North Carolina, attacked the anti-communists with a counter-proposal, which stated that the ACLU “stand[s] against guilt by association, judgment by accusation, the invasion of privacy of personal opinions and beliefs, and the confusion of dissent with disloyalty.”[184][185] The anti-communists continued to battle Graham’s proposal, but were outnumbered by the affiliates. The anti-communists finally gave up and departed the board of directors in late 1954 and 1955, ending an eight year reign of ambivalence in the ACLU leadership ranks.[186] Thereafter, the ACLU proceeded with a more uniform resolve against Cold War anti-communist legislation.[187] The period from the 1940 resolution (and the purge of Elizabeth Flynn) to the 1954 resignation of the anti-communist leaders was considered by many as an era in which the ACLU abandoned its core principles.[187][188]
McCarthyism declined in late 1954 after television journalist Edward R. Murrow and others publicly chastised McCarthy.[189] The controversies over the Bill of Rights that were generated by the Cold War ushered in a new era in American Civil lilberties. In in 1954 in ‘’Brown v. Board of Education’’, the Supreme Court unanimously overturned state-sanctioned school segregation, and thereafter a flood of civil rights victories dominated the legal landscape.[190]
The supreme court handed the ACLU two key victories in 1957, with Watkins v. United States and Yates v. United States, which both undermined the Smith Act and marked the beginning of the end of communist party membership inquiries.[191] In 1965, the Supreme Court produced some decisions, including Lamont v. Postmaster General (in which the plaintiff was Corliss Lamont, a former ACLU board member) which upheld 5th amendment protections and brought an end to restrictions on political activity.[192]
The decade from 1954 to 1964 was the most successful period in the ACLU’s history.[193] Membership rose from 30,000 to 80,000, and by 1965 it had affiliates in seventeen states.[193][194] During the ACLU’s bi-annual conference in Colorado in 1964, the Supreme Court issued rulings on eight cases in which the ACLU was involved; the ACLU prevailed on seven of the eight.[195] The ACLU played a role in Supreme Court decisions reducing censorship of literature and arts, protecting freedom of association, prohibiting racial segregation, excluding religion from public schools, and providing due process protection to criminal suspects.[193] The ACLU’s success arose from changing public attitudes: the American populous was more educated, more tolerant, and more willing to accept unorthodox behavior.[193]
Legal battles concerning the separation of church and state originated in laws dating to 1938 which required religious instruction in school, or provided state funding for religious for religious schools.[196] The Catholic church was a leading proponent of such laws; and the primary opponents (the “separationists”) were the ACLU, Americans United for Separation of Church and State, and the American Jewish Congress.[196] The ACLU led the challenge in the 1947 ‘’Everson v. Board of Education’’ case, in which Justice Hugo Black wrote “[t]he First Amendment has erected a all between church and state…. That wall must be kept high and impregnable.”[196][197] It was not clear that the Bill of Rights forbid state governments from supporting religious education, and strong legal arguments were made by religious proponents, arguing that the Supreme Court should not act as a “national school board”, and that the Constitution did not govern social issues.[198] However, the ACLU and other advocates of church/state separation persuaded the Court to declare such activities unconstitutional.[198] Historian Samuel Walker writes that the ACLU’s “greatest impact on American life” was its role in persuading the Supreme Court to “constitutionalize" so many public controversies.[198]
In 1948, the ACLU prevailed in the ‘’McCollum’’ case, which challenged public school religious classes taught by clergy paid for from private funds.[198] The ACLU also won cases opposing schools in New Mexico, which were taught by clergy, and had crucifixes hanging in the classrooms.[199] In the 1960s, the ACLU, in response to member insistence, turned its attention to in-class promotion of religious.[200] In 1960, 42 percent of American schools included Bible reading.[201] In 1962, the ACLU published a policy statement condemning in-school prayers, observation of religious holidays, and Bible reading.[200] The Supreme Court concurred with the ACLUs position, when it prohibited New York’s in-school prayers in the 1962 ‘’Engel v. Vitale’’ decision.[202] Religious factions across the country rebelled against the anti-prayer decisions, leading to a proposed constitutional amendment which declared in-school prayer legal.[203] The ACLU participated in a lobbying effort against the amendment, and the 1966 congressional vote on the amendment failed to obtain the required two-thirds majority.[203]
Not all cases were victories: ACLU lost cases in 1949 and 1961 which challenged state laws requiring commercial businesses to close on Sunday, the Christian Sabbath.[199] The Supreme court has never overturned such laws, although states have revoked many of the laws under pressure from commercial interests.[199]
The ACLU began battling artistic censorship in 1945.[204] As late as 1953, books such as ‘’Tropic of Cancer’’ and ‘’From Here to Eternity’’ were still banned.[204] But by the mid-1960s, most government censorship had been eliminated.[204]
In 1948, the New York affiliate of the ACLU received mixed results from the Supreme Court, winning the appeal of Carl Jacob Kunz, who was convicted for speaking without a police permit, but losing the appeal of Irving Feiner who was arrested to prevent a breach of the peace, based on his oration denouncing president Truman and the American Legion.[205] The ACLU lost the case of Joseph Beahharnais, who was arrested for group libel when he distributed literature impugning the character of African Americans.[206]
Cities across America routinely banned movies because they were deemed to be “harmful”, “offensive”, or “immoral” – censorship which was validated by the 1915 Mutual v. Ohio Supreme Court decision which held movies to be mere commerce, undeserving of first amendment protection.[207] The film ‘’The Miracle’’ was banned in New York in 1951, at the behest of the Catholic church, but the ACLU supported the film’s distributor in an appeal of the ban, and won a major victory in the 1952 decision Joseph Burstyn, Inc v. Wilson .[207] The Catholic church led efforts throughout the 1950s attempting to persuade local prosecutors to ban various books and movies, leading to conflict with the ACLU when the ACLU published it statement condemning the church’s tactics.[208] Further legal actions by the ACLU successfully defended films such as ‘’M (film)’’ and ‘’la Ronde’’, leading the eventual dismantling of movie censorship.[207][209] Hollywood continued employing self-censorship with its own Production Code, but in 1956 the ACLU called on Hollywood to abolish the Code.[210]
The ACLU defended beat generation artists, including Allen Ginsburg who was prosecuted for his poem ‘’Howl’’, and – in a very unusual departure – helped a coffee house regain its restaurant license which was revoked because its Beat customers were allegedly disturbing the peace and quiet of the neighborhood.[211]
The ACLU lost an important press censorship case, when in 1957 the Supreme Court upheld the obscenity conviction of publisher Samuel Roth for distributing adult magazines.[212] But public standards rapidly became more liberal though the 1960s, and obscenity was notoriously difficult to define, so by 1971 prosecutions for obscenity had halted.[213]
A major aspect of civil liberties progress after World War II was undoing centuries of racism in federal, state, and local governments – an effort generally known as the Civil Rights movement.[214] Several civil liberties organizations worked together for progress, including the National Association for the Advancement of Colored People (NAACP), the ACLU, and the American Jewish Congress.[214] The NAACP took primary responsibility for Supreme Court cases (often led by lead NAACP attorney Thurgood Marshall), with the ACLU focusing on police misconduct, and supporting the NAACP with amicus briefs.[214]
The NAACP achieved a key victory in 1950 with the ‘’Henderson v. United States’’ decision which ended segregation in interstate bus and rail transportation.[214]
In 1954, the ACLU filed an amicus brief in the case of Brown v. Board of Education, which led to the ban on racial segregation in U.S. public schools.[215]
Southern states instituted a McCarthyism-style witch-hunt against the NAACP, attempting it to disclose membership lists. The 1958 Supreme Court case NAACP v. Alabama found that the freedom of association entitled the NAACP to keep its membership lists private.[216]
The ACLU's fight against racism was not limited to segregation: in 1964 the ACLU provided key support to plaintiffs, primarily lower income urban residents, in Reynolds v. Sims, which required states to establish the voting districts in accordance with the "one person, one vote" principle.[217]
The ACLU regularly tackled police misconduct issues, starting with the 1932 case Powell v. Alabama (right to an attorney), and including 1942's Betts v. Brady (right to an attorney), and 1951's Rochin v. California (involuntary stomach pumping).[218] In the late 1940s, several ACLU local affiliates established permanent committees to address policing issues.[219] During the 1950s and 1960s the ACLU was responsible for substantially advancing the legal protections against police misconduct.[220] The Philadelphia affiliate was responsible for causing the City of Philadelphia, in 1958, to create the nation's first civilian police review board.[221] In 1959, the Illinois affiliate published the first report in the nation, Secret Detention by the Chicago Police, which documented unlawful detention by police.[222]
Some of the best known ACLU successes came in the 1960s, when the ACLU prevailed in a string of cases limiting the power of police to gather evidence: In 1961's Mapp v. Ohio, the Supreme court required states to obtain a warrant before searching a person's home.[223] The Gideon v. Wainwright decision in 1963 provided legal representation to indigents.[224] In 1964, the ACLU persuaded the Court, in Escobedo v. Illinois, to permit suspects to have an attorney present during questioning.[225] And in 1966, in Miranda v. Arizona the Court required police to notify suspect of their constitutional rights.[226] Although many law enforcement officials criticized the ACLU for expanding the rights of suspects, police officiers themselves took advantage of the ACLU, such as the case when the ACLU defended New York policemen in their suit objecting to searches of their workplace lockers.[227]
In the late 1960s, civilian review boards in New York and Philadelphia were abolished, over the ACLU’s objection.[228]
The 1960s was a tumultuous era in the United States, and public interest in civil liberties underwent an explosive growth.[229] Civil liberties actions in the 1960s were often led by young people, and often employed tactics such as sit ins and marches. Protests were often peaceful, but sometimes employed militant tactics.[230]
The ACLU played a central role in all major civil liberties debates of the 1960s, including new fields such as gay rights, prisoner's rights, abortion, rights of the poor, and the death penalty.[231] Membership in the ACLU increased from 52,000 at the beginning of the decade, to 104,000 in 1970.[232] In 1960, there were affiliates in seven states, and by 1974 there were affiliates in 46 states.[232][233] During the 1960s, the ACLU underwent a major transformation tactics: it shifted emphasis from legal appeals (generally involving amicus briefs submitted to the Supreme Court) to direct representation of defendants when they were initially arrested.[232] At the same time, the ACLU transformed its style from "disengaged and elitist" to "emotionally engaged".[234] The ACLU published a breakthrough document in 1963, titled How Americans Protest, which was borne of frustration with the slow progress in battling racism, and which endorsed aggressive, even militant protest techniques.[235]
African-American protests in the South accelerated in the early 1960s, and the ACLU assisted at every step. After four African-American college students staged a sit-in in a segregated North Carolina department store, the sit-in movement gained momentum across the United States.[236] During 1960-61, the ACLU defended black students arrested for demonstrating in North Carolina, Florida, and Louisiana.[237] The ACLU also provided legal help for the Freedom Rides in 1961, the integration of the University of Mississippi, the 1963 protests in Birmingham, Alabama, and the 1964 Freedom Summer.[237]
The NAACP was responsible for managing most sit-in related cases that made it to the Supreme Court, winning nearly every decision.[238] But it fell to the ACLU and other legal volunteer efforts to provide legal representation to hundreds of protestors – white and black – which were arrested while protesting in the South.[238] The ACLU joined with other civil liberties groups to form the Lawyers Constitutional Defense Committee (LCDC) which subsequently provided legal representation to many of the protesters.[239] The ACLU provided the majority of the funding for the LCDC.[240]
In 1964, the ACLU opened up a major office in Atlanta, Georgia, dedicated to serving Southern issues.[241] Much of the ACLU's progress in the South was due to Charles Morgan, Jr., the charismatic leader of the Atlanta office. He was responsible for desegregating juries (Whitus v. Georgia), desegregating prisons (Lee v. Washington), and reforming election laws.[242] The ACLU's southern office also defended African-American congressman Julian Bond, when the Georgia congress refused to formally induct Bond into the legislature.[243] Another widely publicized case defended by Morgan was that of Army doctor Howard Levy, who was convicted of refusing to train Green Berets. Despite raising the defense that the Green Berets were committing war crimes in Vietnam, Levy lost on appeal.[244]
The ACLU was at the center of several legal aspects of the Vietnam war: defending draft resisters, challenging the constitutionality of the war, the impeachment of Richard Nixon, and the use of National Security to preemptively censor newspapers.
David J. Miller was the first person prosecuted for burning his draft card. The New York affiliate of the ACLU appealed his `965 conviction, but the Supreme Court refused to hear the appeal. Two year later, the Massechusetts affiliate took the card-burning cawe of David O’Brian to the Supreme court, arguing that the act of burning was a form of symbolic speech, but the Supreme Court upheld the conviction[245] Thirteen year old Junior High student Mary Tinker wore a black armband to school in 1965 to object to the war, and was suspended from school. The ACLU appealed her case to the supreme court and won a victory in Tinker v. Des Moines. This critical case established that the government may not establish “enclaves” such as schools or prisons where all rights are forfeit. [246] The ACLU defended Sydney Street, who was arrested for burning an American flag to protest the assassination of civil rights leader James Meredith. The court agreed wit the ACLU that encouraging the country to abanddon one of its national symbols was constitutionally protected form of expression. [247] The ACLU sucessfully defended Paul Cohen, who was arrested for wearing a jacket with the words “fuck the draft” on its back, while he walked through the Los Angeles courthouse. The Supreme Court held that the vulgarity of Cohen's message was essential to conveying the intensiy of Cohen's message.[248]
Non-war related free speech rights were also advanced during the Vietnam war era: in 1969, the ACLU defended a Ku Klux Klan member who advocated long-term violence against the government, and the Supreme Court concurred with the ACLU's argument in the landmark decision Brandenburg v. Ohio, which held that only speech which advocated imminent violence could be outlawed.[248]
A major crisis gripped the ACLU in 1968 when a debate erupted over whether to defend Dr. Benjamin Spock and the Boston Five against federal charges that they encouraged draftees to avoid the draft.[249] The ACLU board was deeply split over whether to defend the activists: half the board harbored anti-war sentiments, and felt that the ACLU should lend its resources to the cause of the Boston Five.[249] The other half of the board believed that civil liberties were not at stake, and the ACLU would be taking a political stance.[249] Behind the debate was the longstanding ACLU tradition that it was politically impartial, and provided legal advice without regard to the political views of the defendants.[249]
In 1967, the ACLU successfully argued against state bans on interracial marriage, in the case of Loving v. Virginia.[250]
In 1973, the ACLU was the first major national organization to call for the impeachment of President Richard Nixon, giving as reasons the Nixon administration's violations of civil liberties.[13] That same year, the ACLU was involved in the cases of Roe v. Wade and Doe v. Bolton, in which the Supreme Court held that the constitutional right of privacy extended to women seeking abortions.
In 1977, the ACLU filed suit against the Village of Skokie, Illinois, seeking an injunction against the enforcement of three town ordinances outlawing Neo-Nazi parades and demonstrations. Skokie, Illinois at the time had a majority population of Jews, totaling 40,000 of 70,000 citizens. A federal district court struck down the ordinances in a decision eventually affirmed by the Supreme Court. According to David Hamlin, executive director of the Illinois ACLU, "...the Chicago office which chose to provide legal counsel to neo-Nazis who have been planning to march in Skokie, has lost about 25% of its membership and nearly one-third of its budget." 30,000 ACLU members resigned in protest.[251][252][253] The financial strain from the controversy lead to layoffs at local chapters.[254] In his February 23, 1978 decision overturning the town ordinances, US District Court Judge Bernard M. Decker described the principle involved in the case as follows: "It is better to allow those who preach racial hatred to expend their venom in rhetoric rather than to be panicked into embarking on the dangerous course of permitting the government to decide what its citizens may say and hear ... The ability of American society to tolerate the advocacy of even hateful doctrines ... is perhaps the best protection we have against the establishment of any Nazi-type regime in this country."[255] The neo-Nazis declined to march in Skokie.[256]
In 1978, the ACLU defended Frank Snepp, formerly of the Central Intelligence Agency, from an attempt by the government agency to enforce a gag order against him.[257]
In the 1980s, the ACLU filed suit to challenge the Arkansas 1981 creationism statute, which required the teaching in public schools of the biblical account of creation as a scientific alternative to evolution. The law was declared unconstitutional by a Federal District Court.[258]
In 1982, the ACLU became involved in a case involving the distribution of child pornography (New York v. Ferber).[259] In an amicus brief, the ACLU argued that the law in question "has criminalized the dissemination, sale or display of constitutionally protected non-obscene materials which portray juveniles in sexually related roles," while arguing that child pornography deemed obscene under the Miller test deserved no constitutional protection and could be banned.[260]
In 1990 the ACLU also defended Lieutenant Colonel Oliver North,[61] whose conviction was tainted by coerced testimony — a violation of his fifth amendment rights.[261]
In 1997, ruling unanimously in the case of Reno v. American Civil Liberties Union the Supreme Court voted down anti-indecency provisions of the Communications Decency Act (the CDA), finding they violated the freedom of speech provisions of the First Amendment. In their decision, the Supreme Court hold that the CDA's "use of the undefined terms 'indecent' and 'patently offensive' will provoke uncertainty among speakers about how the two standards relate to each other and just what they mean."[262]
The ACLU's position on spam is considered controversial by a broad cross-section of political points of view. In 2000, Marvin Johnson, a legislative counsel for the ACLU, stated that proposed anti-spam legislation infringed on free speech by denying anonymity and by forcing spam to be labeled as such: "Standardized labeling is compelled speech." He also stated, "It's relatively simple to click and delete."[263] The debate found the ACLU joining with the Direct Marketing Association and the Center for Democracy and Technology in criticizing a bipartisan bill in the House of Representatives in 2000. As early as 1997 the ACLU had taken a strong position that nearly all spam legislation was improper,[264] although it has supported "opt-out" requirements in some cases. The ACLU opposed the 2003 CAN-SPAM act[265] suggesting that it could have a chilling effect on speech in cyberspace.
In November 2000, 15 African American residents of Hearne, Texas were indicted on drug charges after being arrested in a series of "drug sweeps". The ACLU filed a class action lawsuit, Kelly v. Paschall, on their behalf, alleging that the arrests were unlawful. The ACLU contended that 15 percent of Hearne's male African American population aged 18 to 34 were arrested based on the "uncorroborated word of a single unreliable confidential informant coerced by police to make cases." On May 11, 2005, the ACLU and Robertson County announced a confidential settlement of the lawsuit, an outcome which "both sides stated that they were satisfied with." The District Attorney dismissed the charges against the plaintiffs of the suit.[266] The 2009 film American Violet depicts this case.[267]
The ACLU has been a vocal opponent of the USA PATRIOT Act of 2001, the PATRIOT 2 Act of 2003, and associated legislation made in response to the threat of domestic terrorism. The ACLU believes such legislation violates either the letter or the spirit of the U.S. Bill of Rights. In response to a requirement of the USA PATRIOT Act, the ACLU withdrew from the Combined Federal Campaign.[268] The requirement was that ACLU employees must be checked against a federal anti-terrorism watch list. The ACLU has stated that it would "reject $500,000 in contributions from private individuals rather than submit to a government 'blacklist' policy."[268] See American Civil Liberties Union v. Ashcroft (2004).
In a 2002 letter, the ACLU stated that it "opposes child pornography that uses real children in its depictions", but that material "which is produced without using real children, and is not otherwise obscene, is protected under the First Amendment".[269]
In March 2004, the ACLU, along with Lambda Legal and the National Center for Lesbian Rights, sued the state of California on behalf of 6 same-sex couples who were denied marriage licenses. That case, Woo v. Lockyer, was eventually consolidated into In re Marriage Cases, the California Supreme Court case which led to same-sex marriage being available in that state from June 16, 2008 until Proposition 8 was passed on November 4, 2008.[270]
During the 2004 trial regarding allegations of Rush Limbaugh's drug abuse, the ACLU argued that his privacy should not have been compromised by allowing law enforcement examination of his medical records.[271]
In June 2004, the ACLU received numerous phone calls from angry parents after the Dover Area School District in Dover, Pennsylvania passed a curriculum change requiring that its high school biology students be read a one-minute statement saying that the theory of evolution is not fact and mentioning intelligent design as an alternative theory. Believing that the school was promoting a religious idea in the classroom and violating the Establishment Clause of the First Amendment, several Dover parents called the ACLU to discuss a possible lawsuit against the school. The ACLU, along with Americans United for Separation of Church and State and Pepper Hamilton, LLP, went on to represent the parents, the plaintiffs, in Kitzmiller v. Dover Area School District. After a more than 40-day trial, Judge John E. Jones III ruled in favor of the plaintiffs, finding that intelligent design is not science and permanently forbidding the Dover school system from teaching intelligent design in science classes.[272]
In 2005 the ACLU filed the first of six lawsuits against the Tangipahoa Parish, Louisiana school board over what the group sees as teacher-led prayer in school activities.[273][274]
In 2006 the ACLU fought for the Westboro Baptist Church and Shirley Phelps-Roper after legislation prevented the group from picketing outside of veterans' funerals.[275] The Westboro Baptist Church is infamous for their picket signs that contain messages such as, "God Hates Fags," "Thank God for Dead Soldiers" and "Thank God for 9/11." The ACLU issued a statement calling the legislation a "law that infringes on Shirley Phelps-Roper's rights to religious liberty and free speech."[276] The suit was successful.[277]
In 2006, the ACLU of Washington State and the Second Amendment Foundation jointly filed a lawsuit[278] against the North Central Regional Library District (NCRL) in Washington for its policy of refusing to disable restrictions upon an adult patron's request. Library patrons attempting to access pro-gun web sites were blocked, and the library refused to remove the blocks.
In January 2006, the ACLU filed a lawsuit, ACLU v. NSA, in a federal district court in Michigan, challenging government spying in the NSA warrantless surveillance controversy.[279] On August 17, 2006, that court ruled that the warrantless wiretapping program is unconstitutional and ordered it ended immediately.[280] However, the order was stayed pending an appeal. The Bush administration did suspend the program while the appeal was being heard.[281] In February 2008, the U.S. Supreme Court "turned down an appeal from the [ACLU] to let it pursue a lawsuit against the program that began shortly after the Sept. 11 terror attacks".[282]
The ACLU and other organizations also filed separate lawsuits around the country against telecommunications companies. The ACLU filed a lawsuit in Illinois (Terkel v. AT&T) which was dismissed because of the State Secrets Privilege[283] and two others in California requesting injunctions against AT&T and Verizon.[284] On August 10, 2006, the lawsuits against the telecommunications companies were transferred to a federal judge in San Francisco.[285]
After the town of Hazleton, Pennsylvania passed an ordinance to punish landlords who rented to illegal immigrants and businesses who hired illegal immigrants, the ACLU and the Puerto Rican Legal Defense and Education Fund sued Hazleton, saying the ordinance was unconstitutional.[286][287] On July 26, 2007, a federal court agreed and struck down the Hazleton ordinance; Hazleton's mayor promised to appeal the decision.[288]
In 2008, the ACLU stated that it would represent defendants arrested in Flint, Michigan for disorderly conduct when sagging (wearing pants low enough to show underwear), partly on the basis of unconstitutional racial profiling.[289]
After the City of Indianapolis, Indiana, began cracking down on when, where and how homeless persons can solicit donations, the ACLU sued Indianapolis, claiming the city's police unconstitutionally forced homeless persons to produce identification without probable cause.[290]
In January 2010, the American military released the names of 645 detainees held at the Bagram Theater Internment Facility in Afghanistan, modifying its long-held position against publicizing such information. This list was prompted by a Freedom of Information Act lawsuit filed in September 2009 by the ACLU, whose lawyers had also requested detailed information about conditions, rules and regulations.[291][292]
The ACLU represents a Muslim-American who was detained but never accused of a crime in Al-Kidd v Ashcroft, a civil suit against the former Attorney General.
In 2011, the ACLU defended Christian athletes posting the ten commandments on their lockers, over the objections of their Virginia high school.[293]
|
||||||||||||||||||||||