American Civil Liberties Union

The American Civil Liberties Union (ACLU) is a national non-profit organization based in New York City, 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."[1] It works through litigation, legislation and community education. [2]

Lawsuits brought by the ACLU have been influential in the development of U.S. constitutional law. The ACLU provides lawyers and legal expertise in cases in which it considers civil liberties to be at risk. In many cases where it does not provide legal representation, the ACLU submits amicus curiae briefs in support of its positions. As of 2005, the ACLU had more than 500,000 members according to its annual report.

The ACLU has never officially supported or opposed a political candidate, and is not aligned with any political party. Throughout its existence, the ACLU has faced harsh criticism by various elected officials of both the Democratic and Republican parties. Aside from its legal involvement, the organization also engages in aspects of political lobbying and civil liberties activism [1]. The ACLU is one of the most influential non-governmental organizations (NGOs) in the United States today and often engenders criticism from both sides of the political spectrum.

History

In 1917, Roger Nash Baldwin became head of the National Civil Liberties Bureau (NCLB). An independent outgrowth of the American Union Against Militarism, the NCLB opposed American intervention in World War I. The bureau also provided legal counsel for conscientious objectors and those being prosecuted under the Espionage Act of 1917 or Sedition Act of 1918. In 1920, the NCLB would change its name to the American Civil Liberties Union, with Baldwin remaining director. Crystal Eastman and Albert DeSilver, along with other former members of the NCLB, assisted Baldwin in the founding of the ACLU. [1]

When established, the ACLU was responsible for the protection of U.S. nationals threatened with criminal charges for their communist or socialist associations. The organization also sought to protect foreign citizens threatened with deportation, and opposed attacks on the rights of labor unions to meet and organize.

In 1940, the ACLU formally barred members of the Communist Party from attaining leadership positions and would declare 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 totalitarian dictatorship." [2] [3]

In 1940, the ACLU initiatives would change with the formal barring of members associated with the Communist Party. Excluding communists from attaining leadership positions, the ACLU declared it "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 totalitarian dictatorship." [2] [3]

Lead by Baldwin, a former Communist, the purge began with the ousting of Elizabeth Gurley Flynn, a member of both the United States Communist Party and the Industrial Workers of the World (IWW) [4]. In later years, the ACLU would be self-criticized for the enactment of these policies, and in 1960 there would be an internal push to remove the prohibition. [5]

In the 1988 presidential election, then-Vice President George H.W. Bush called then-Governor Michael Dukakis a "card-carrying member of the ACLU," which Dukakis was quick to acknowledge. [6] This label now serves as a jocular recruitment slogan for the ACLU.

Following the September 11th, 2001 attacks on the United States, and the passage of the 2001 USA PATRIOT Act, the ACLU experienced a 20% increase in membership raising its total enrollment to 330,000 between August of 2001 and December of 2002 [7]. The growth has continued; in August 2004, ACLU membership was reported at 400,000 [8].

The ACLU has been a vocal opponent of congressional acts created in response to the threat of domestic terrorism. According to the organization, legislation including the PATRIOT Act and the PATRIOT 2 Act violate the objectives of the U.S. Bill of Rights. In reaction to the passing of the PATRIOT Act, the ACLU withdrew from a Federal donation program that matched funds donated by federal employees with government donations. The ACLU withdrew from the said donation program in response to a clause contained within the PATRIOT Act regulating that all ACLU employees be checked against a federal anti-terrorism watch list. By withdrawing from the federal program, the donation organization will lose approximately $500,000 in annual contributions, according to an ACLU estimate.

Los Angeles Mayor Antonio Villaraigosa speaking at an ACLU event. Villaraigosa is a former director of the ACLU Southern California affiliate.

Leadership

As of 2006, the leadership of the ACLU included Executive Director Anthony Romero, President Nadine Strossen, and Legal Director Steven Shapiro. Additionally, ACLU affiliate Ruth Bader Ginsburg, a Justice of the U.S. Supreme Court, founded the ACLU’s Women's Rights Project in 1972.

Structure

Though the national headquarters of the ACLU are based in New York City, the organization does most of its work through local affiliations organized into fifty state chapters. These chapters maintain a certain amount of autonomy from the national organization, and are able to work independently from each other. A majority of the ACLU's legal cases originate at the local level and are handled by lawyers of the local chapters.

The autonomy of local ACLU chapters has often been discredited when examining the ACLU’s controversial involvement in the World War II internment of Japanese-American citizens. The position taken by the national branch during this period is often a topic of debate. While many affiliates maintain that the ACLU remained silent on the issue of internment, others argue that the organization discouraged its local chapters, in particular its Northern California branch, to participate in the defense of interned Japanese. During this period the ACLU was rumored to have threatened to revoke the chapter status of its Northern California affiliation when it agreed to defend Toyosaburo Korematsu in the controversial case Korematsu v. United States. Despite the questionable legitimacy of these arguments, the ACLU is recorded as filing a brief of amicus curiae with the court, and offered information on behalf of the plaintiff to assist in the efforts of Korematsu.

Following the case, the ACLU publicly maintained that some internments may have been necessary for measures of national security, though the internment of all Japanese-Americans without a due hearing violated the legal rights of the interned individuals. The ACLU argued that the internments lacked civilian oversight and had occurred on the basis of racial discrimination.

To date, state chapters remain the basic unit of the ACLU's organization. For example, according to a 2006 annual report stemming a period of twenty months, the ACLU's New Jersey chapter was affiliated with fifty-one cases: thirty-five state level, sixteen federal. In thirty-four of those cases, the New Jersey chapter provided legal representation. In the remaining eighteen, the chapter served as amicus counsel, providing third party information on the behalf of an affiliated party. The chapter listed forty-four volunteer attorneys who assisted the ACLU in those cases. The organization’s New York chapter, the New York Civil Liberties Union, has more than 35,000 members and is among the most prominent of the ACLU state chapters.

Positions

The stated mission of the American Civil Liberties Union is to defend the rights of all citizens as enshrined in the Bill of Rights of the United States Constitution. While the majority of the organization’s cases involve the First Amendment, Equal Protection, Due Process, and the right to privacy, the ACLU has taken positions on a wide range of controversial issues.

The ACLU publicly supports the separation of church and state and has voiced opposition to government-sponsored displays of religion on public properties and within public schools. The organization also opposes official prayers, religious ceremonies or moments of silence to be held in public school buildings or schools funded with public money. The ACLU also defends full freedoms of speech and of the press, including school affiliated newspapers.

The organization also supports: full reproductive rights, including contraception and abortion, full civil rights for homosexual individuals and couples, affirmative action as a means of redressing past discrimination and achieving racial diversity, and the protection of defendants and suspects from unconstitutional legal practices.

More controversially, the organization has lobbied for the decriminalization of illegal substances such as heroin, cocaine and marijuana. The ACLU believes in the right to privacy as working “to preserve the American tradition that the government not track individuals or violate privacy unless it has evidence of wrongdoing" [4] and in the protection of immigrant rights by "challenging unconstitutional laws and practices, countering the myths upon which many of these laws are based." [5]

The ACLU has opposed some laws regarding campaign finance such as the Bipartisan Campaign Reform Act, which it considers an inappropriate restriction upon the freedom of expression. The official policy of the national ACLU also argues that the intent of the second amendment is "to protect the right of the states to maintain militias to assure their own freedom and security against the central government" and is not intended to "confer an unlimited right upon individuals to own guns or other weapons." [6] The ACLU has generally avoided accepting firearm-related cases, and has endured occasional criticism by those who consider their interpretation of the second amendment to be too strict.

The ACLU has been noted for vigorously defending the right to express unpopular, controversial, and extremist opinions on both sides of the spectrum. Many supporters of the ACLU view the organization as playing a role comparable to that of public defenders, helping to ensure that even unpopular defendants receive due process.

Notable Cases

Since its foundation, the ACLU has taken part in a number of controversial cases. A few of the most significant are discussed here.

In a 1925 court test, the ACLU persuaded teacher John T. Scopes to defy the state of Tennessee's Butler Act which outlawed the teaching of evolution within schools. Clarence Darrow, a member of the ACLU National Committee, headed Scopes' legal team. The ACLU lost the case and Scopes was fined $100. The Tennessee Supreme Court would later uphold the law but overturn the conviction on a technicality.

In 1942, a few months after the Japanese attack on Pearl Harbor, ACLU affiliates along the West Coast became some of the sharpest critics of the government's policy regarding enemy aliens and U.S. citizens descended from enemy ancestry. This included the relocation of Japanese-American citizens, the internment of aliens, prejudicial curfews, and the like. The national branch of the organization, in attempts to dodge the issue, took a mildly pro-government position and accepted the principle of internment but demanding that those "cleared" of any suspicion of wrongdoing be released from the concentration camps in which they were held.

In 1954, the ACLU played a role in the case of Brown v. Board of Education, and aided in the banning of public school segregation throughout the United States.

In 1973, the organization became the first major national organization to call for the impeachment of President Richard M. Nixon, citing the Nixon Administration as violating civil liberties. That same year, the ACLU was involved in the cases of Roe v. Wade and Doe v. Bolton, in which the Supreme Court upheld the constitutional right of privacy extended to women seeking abortions.

In 1977, the ACLU filed suit against the Village of Skokie, Illinois, a predominately Jewish community. The organization sought an injunction against the enforcement of three town ordinances that outlawed Nazi parades and demonstrations within the town. A federal district court struck down the ordinances in a decision eventually affirmed by the U.S. Supreme Court. The ACLU's involvements in this case led to the resignation of nearly 15 percent of its affiliates, 25 percent of its Illinois members, and a majority of its Jewish followers. A cutback in its activities was avoided by a special mailing which elicited $500,000 in contributions.

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."

In the 1980s, the ACLU filed suit to challenge the Arkansas 1981 Creationism Statute, which required public schools to teach the biblical creation story as a scientific alternative to the teachings of evolution. The law was declared unconstitutional by a Federal District Court.

In 2006, the ACLU filed suit against the National Security Agency in ACLU v. NSA. The ACLU aimed to challenge government spying in the NSA Warrantless Surveillance Controversy.

Funding

The ACLU receives funding from a large number of sources; the distribution and amount of funding for each chapter varies from state to state. To take one particular 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, and 4% came from investment income. The remaining percentage came from other sources. Its expenses in the same period were $800,000, of which 12% went to administration and management. Smaller chapters with fewer resources, such as the Nebraska chapter, receive subsidies from the national branch of the ACLU [1].

The ACLU and its affiliated tax-exempt foundation receive annual support from Ford, Rockefeller, Carnegie, Field, Tides, Gill, Arcus, Horizons, and a number of other foundations. However, the ACLU rejected a $1.5 million donation from both the Ford and Rockefeller Foundations because it viewed a clause in the donation agreement stipulating that "none of the money would go to underwriting terrorism or other unacceptable activities" as a threat to civil liberties. The ACLU also withdrew from a federal charity drive, losing an estimated $500,000 in contributions when taking a stance against the attached condition that the organization would "not knowingly hire anyone on terrorism watch lists." Other key donors include insurance magnate, Peter B. Lewis [2].

While there remain restrictions on how legal fees may be collected, the ACLU has in a number of cases received substantial monetary awards in the event of legal judgments made in their favor.

The awarding of legal fees to an organization like the ACLU in civil rights cases remains highly controversial. In 2005, the Public Expression of Religion Act introduced by Representative John N. Hostettler, sought to alter prior legislation preventing monetary awards in cases that violate the separation of church and state [4]. Groups like the American Legion have taken stances opposing the ACLU's right to collect fees under such legislation [5]. The recovery of legal fees by non-profit legal advocacy organizations, however, is common practice across the political spectrum. The Thomas More Law Center, for example, generally seeks, and is often successful in, the recovery of legal fees in the same manner as the ACLU [6], [7].

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 may not be required to pay monetary damages except by an explicit statutory waiver [8]; [9].

In some cases, the law does permit plaintiffs who successfully sue government agencies to collect damages. Within the 1976 Civil Rights Attorney's Fees Awards Act, the government was allowed to be liable in certain civil rights cases. In cases where the ACLU represents plaintiffs, the case is handled not by ACLU attorneys, but by sympathetic law firms who provide their services pro bono, or without pay. In these cases the law firm may sue for legal fees. In such circumstances the money would be awarded to the firm, and not to the ACLU. [10]

The ACLU and its state chapters do share in monetary judgments against government agencies in cases where the organization has provided legal counsel, and in circumstances where laws permit government liability. For example, the ACLU shared in a judgment of $156,960 with other plaintiffs against the State of Nebraska regarding a same-sex marriage case. [11].

In a separate example, the Georgia chapter of the ACLU was awarded $150,000 in fees after suing a county courthouse for the removal of a Ten Commandment display [12]. A removal of a second religious display within the State led to a judgment of $74,462 [13]. The State of Tennessee was required to pay $50,000, the State of Alabama $175,000, and the State of Kentucky $121,500 in three similar cases of illegal religious displays [14], [15].

Between 1994 and 2003, the State of Kentucky was legally required to pay the ACLU nearly $700,000 in fees regarding the passage of abortion legislation and state religion laws. These laws were later struck down by courts [16].

Below is a partial list of various judgments awarded to the ACLU and its state chapters throughout its existence, covering a wide variety of cases including creationism, internet pornography, the separation of church and state and free speech cases. Total awards are estimated at approximately $2.9 million. Though judgments are often made against states, in a case based out of San Diego, the Operation Rescue organization was required to pay the ACLU $111,000 in legal fees.

In taking on highly contentious cases, the ACLU leaves itself vulnerable to potentially damaging judgments if the organization were found to be filing a "frivolous" lawsuit, regardless of government liability. [18]

Controversial Stances

The American Civil Liberties Union believes that the right to freedom of speech must be available to all citizens and residents of the United States. Therefore, it has taken on controversial cases to defend the free speech rights of organizations such as the Ku Klux Klan, neo-Nazi groups, and NAMBLA, a group which supports legalization of pederasty.

The ACLU has defended former member of the Central Intelligence Agency Frank Snepp from an attempt of the CIA to enforce a gag order against him. Lieutenant Colonel Oliver North, whose conviction violated Fifth Amendment rights by including coerced testimony, was also defended by the ACLU.

The organization’s stance on technological ‘spam’ is considered controversial by a broad array of political analysts. In 2000, Marvin Johnson, a legislative counsel for the ACLU, claimed that anti-spam laws are unwarranted on the basis that it is “relatively simple to click and delete," [1]. The debate found the ACLU joining with the Direct Marketing Association and the Center for Democracy and Technology in criticizing a 2000 bipartisan bill set forth by the House of Representatives. By 1997 the ACLU had taken a stance regarding nearly all spam legislation as improper [3].

Critics of the ACLU

The ACLU's involvement in numerous legal cases throughout its existence has led to a great deal of disapproval from various points of view. Many critics focus on the organization’s stance regarding a particular case or group of cases, while others choose to criticize the general principles that guide the ACLU's decisions to become involved with certain cases.

Conservative Critics

The ACLU's most vocal critics are generally those considered conservatives. Many of these conservatives allege that the organization has not dedicated itself to the defense of constitutional rights, but that it seeks to advance a liberal agenda. Some critics base this argument in the ACLU’s opposition to the death penalty, an act declared constitutional by the Supreme Court of the United States in 1976. The ACLU maintains that the death penalty is contrary to the establishment of international human rights and that it violates the Eighth Amendment’s restriction against "cruel and unusual punishment" and the Fourteenth Amendment’s guarantee of equal protection.

The 1980 Polovchak v. Meese case is often considered evidence of liberal sympathies on the part of the ACLU. Ukraine citizen Walter Polovchak attempted to remain in the United States by claiming political asylum against the wishes of his parents upon their decision to return to the Ukraine. The ACLU took action to prevent him from doing so. In 1999, the Florida chapter of the ACLU referred to the oragnization’s role in the Polovchak case in their brief for the Elián González case.

Critics also argue that the ACLU has been inconsistent in defending all civil liberties, citing its hesitation to protect gun rights. Critics claim the right to bear arms should be awarded similar constitutional protection of other civil rights and should be treated as equal by the ACLU. The organization declares itself officially "neutral" on the issue of gun control, pointing to previous Supreme Court decisions such as United States v. Miller to argue that the Second Amendment applies to the preservation or efficiency of a well-regulated militia, and that "except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected." [1]

Some critics argue that the organization’s position is inconsistent with their stated philosophy, and have suggested that the ACLU may have adopted this stance to appease liberal-leaning supporters of the organization who also back gun control. Critics also maintain that the ACLU does not associate with cases that involve possible abuses by the Bureau of Alcohol, Tobacco and Firearms that exceed the debate over the private ownership of firearms. [2] In 2006, the ACLU of Texas joined with the National Rifle Association to claim that current legislation allowed for the harassment of gun owners [3], but continued to maintain their public neutrality regarding the issue of gun control.

In 1982, the ACLU became involved in a case involving the distribution of child pornography (New York v. Ferber, 458 U.S. 747 [4].) In a controversial amicus brief, the ACLU argued that the New York State 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 [5]. The ACLU's stance on this case has drawn great criticism from conservatives [6]. In 2002, the ACLU issued a statement claiming that it "opposes child pornography that uses real children in its depictions" [7].

The organization has also come under fire, mostly by conservative critics, for fighting against Megan’s Law, a law ostensibly enacted to protect children from sex offenders. Though the ACLU has opposed Megan’s Law in various states, it has been unable to attain significant victories in these cases.

Critic Bill O'Reilly has referred to the ACLU as "the most dangerous organization in America", and as an "anti-American" and "fascist organization" on his various broadcasts.

Michael Medved has referred to the ACLU sarcastically as the "American Criminal Lawyer Union". The construction of alternative backronyms is something of a sport; a second invented by critics includes the "American Communist Lawyers Union" [9]. An organization entitled "Stop the ACLU" ran a backronym contest where thirty various entries implied the ACLU to be atheist, Communist, lesbian, aligned with Lucifer, or overly litigious. The most frequent assertion, made in a plurality of eleven entries, was that the union was anti-Christian.

Religious Critics

At the grassroots level, the ACLU often involves itself in cases regarding the separation of church and state. Conservative Christians often take issue with the organization’s positions and contend that the ACLU is part of an effort to remove all references to religion from American government.

In 2004, the ACLU of Southern California threatened to sue the city of Redlands, California if it did not remove a symbol of a cross from the city's official seal. The ACLU argued that having a cross on the seal constituted a government-sponsored endorsement of Christianity and violated the separation of church and state. The city complied with the organization and removed the cross from all city vehicles, business cards, and police badges. The branch also threatened to sue the Los Angeles County if it did not remove a cross from its seal. The county board complied with the demands and voted to remove the religious symbol from its seal as well. A petition opposed to the alteration of the seal was defeated on August 15, 2005. Critics of the ACLU claim that the organization acts in excessive pursuit of the separation of church and state, and misrepresents the separation’s intended purpose.

In 1990, Pat Robertson founded the American Center for Law and Justice as a counterweight to the ACLU. Robertson claimed the ACLU "liberal" and "hostile to traditional American values". The Thomas Moore Law Center, a non-profit legal center, also bills itself a "Christian answer to the ACLU."

After the 2001 terrorist attack on the United States, the Reverend Jerry Falwell remarked that the ACLU’s attempts to "secularize America" had provoked the wrath of God, and therefore caused the September 11th attacks. Falwell would later apologize for his controversial remark.

At times, the ACLU and Jerry Falwell have found themselves in collaboration. In a suit filed by Falwell against the state of Virginia, the ACLU filed an amicus brief in support of Falwell’s cause. The suit, which was successful, overturned Virginia’s constitutional ban on the incorporation of Churches. The ACLU has also defended the right of a Christian church to run anti-Santa ads on Boston subways, the rights of jurors to religious expression, and the rights of Christian students to distribute religious literature in schools. [3]

While the ACLU does oppose the use of crosses in public monuments [4], [5], false allegations have claimed the ACLU to have urged the removal of cross-shaped headstones from federal cemeteries. Such claims are fictitious. [6]

Many minority religious groups, including Jehovah Witnesses and Muslims, have at times been defended by the ACLU. In the Mormon community, the ACLU has been viewed positively by those citing the case Santa Fe Independent School District v. Doe. The case, litigated by the ACLU, was taken on behalf of a Mormon student concerning school prayer [7]. Regardless, a number of Mormon leaders strongly oppose the actions of the ACLU [8].

Between 1938 and 1946, Jehovah Witnesses were involved in twenty-three separate Supreme Court rulings regarding religious objections to military service, the reciting of the pledge of allegiance [9], the prohibition of Witness publications criticizing the Roman Catholic Church [10], and general government reluctance to prosecute anti-Witness vigilantes. The ACLU maintained a direct involvement with these cases, and in 2002 joined once again with the Witnesses in a lawsuit over doorbell-ringing. [12]

Feminist Critics

Anti-pornography activists Nikki Craft and Catharine MacKinnon, who oppose pornography on feminist grounds, have also voiced their opposition to the ACLU. In the early 1990’s Craft developed an activism group known as the ACLU, which stood for the title "Always Causing Legal Unrest". The acronym confusion led then-director of the American Civil Liberties Union, Dorothy M. Ehrlich, to send a letter of protest [1], though legal action was not pursued against Craft’s group.

Liberal Critics

The ACLU has also been subject to criticism from the political left. Some critics object to the organization's advocacy for corporate personhood, or the protection of corporations by the Bill of Rights. The organization’s stance against campaign finance reform has also led to criticism.

Libertarian Critics

Though the ACLU has, on occasion, defended the US Libertarian Party [1], a number of Libertarians and Objectivists oppose the organization for its support of laws viewed distinctly anti-liberty, including affirmative action and private property anti-discriminatory laws. Many Libertarians argue that private business owners, and not the government, should hold the authority to decide which customers to serve and which employees to hire, even if these private business owners choose to base such decisions on criteria regarding race or gender.

Former ACLU member Nat Hentoff has criticized the organization for the promotion of affirmative action and for the support of what he claims as government protected liberal speech codes enacted throughout college campuses and workplace environments [2].

Law professor David Bernstein's book "You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws" discredits the ACLU for its frequently undermining of expressive rights when in conflict with antidiscrimination laws, as in the 2000 Supreme Court case of Boy Scouts of America v. Dale. Some libertarians have formed an organization they describe as the "libertarian ACLU" [3], the Institute for Justice.

References

ISBN links support NWE through referral fees

• Walker, Samuel. 1999. In Defense of American Liberties: A History of the ACLU. Carbondale, IL. Southern University of Illinois Press. ISBN 0809322706.

• Sears, Alan & Osten, Craig. 2005. The ACLU vs. America: Exposing the Agenda to Redefine Moral Values. Nashville, TN. Broadman and Holman Publishers. ISBN 0805440453.

External links

• Official site
• Freedom Under Fire: Dissent in a Post-9/11 America
• The ACLU Freedom Files TV series
• ACLU News from Topix.net

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