“I'm afraid the ACLU does not have the gift of making itself popular. Supporting the Bill of Rights, in fact, generally makes you about as popular as a whore tryin' to get into the SMU Theology School.”

-- Molly Ivins

Conservatives frequently whine, when the ACLU declines to provide assistance to right-wing plutocrats with legal troubles, that this is somehow "unfair" or hypocritical.

True, the American Civil Liberties Union (ACLU) has become a mass movement, with chapters in almost every state in the United States. Two ACLU lawyers have become Supreme Court justices: Felix Frankfurter and Ruth Bader Ginsburg. But that does not commit the ACLU to "mainstream" politics, nor does it make the ACLU some sort of legal welfare program.

At the time of its founding, the ACLU was a radical, leftist organization. Today, it does not seem quite so radical, but not because the ACLU has changed. Rather, the United States has moved to the left, in the direction of the ACLU’s founding principles of freedom, equality and due process.

The ACLU was founded in January, 1920. At that time, in the United States:

  • apartheid was legal, and acts of terrorism against African-Americans were routine, and supported or at least ignored by the government
  • women could not vote (the Nineteenth Amendment was not ratified until August, 1920) and were barred from many jobs and schools
  • mentally ill and mentally retarded people were imprisoned, tortured and enslaved in barbaric and squalid conditions
  • The United States Supreme Court had not once declared a federal law unconstitutional because it violated the First Amendment, and had recently affirmed thousands of arrests of anti-war and union activists, and hundreds of long prison terms, for political speech

The Repression of Political Speech before the ACLU

The ACLU was created, first, to combat repression of political speech. Prior to the United States entry into World War I, opposition to American involvement was a fairly popular viewpoint. In fact, one of Woodrow Wilson’s campaign slogans was that “he kept us out of war”. However, the German Empire made several diplomatic blunders (unrestricted submarine warfare, trying to turn Mexico against the United States) which inflamed popular opinion against Germany, and once the United States got into the war, the government mounted an unprecedented propaganda campaign. In the meantime, Czarist Russia fell to the bolsheviks, and the country seemed to be awash with leftists, organizing blacks and workers. America’s entry into the war provided the excuse and justification for a reactionary backlash.

The backlash took legal form in the Espionage Act of 1917 and certain amendments to that called the Sedition Act of 1918. Legal protests were at first greeted with yawning indifference on the part of the judiciary.

One exceptional case was Masses Publishing Co. v. Patten, 244 Fed. 535 (SDNY 1917) reversed 246 Fed.2d 24 (2d Cir. 1917). In this case, Judge Learned Hand entered an injunction to prevent the New York postmaster from banning from the mails a socialist publication called “The Masses”, on the ground that the First Amendment called for a narrower construction of the Espionage Act. Judge Hand is now regarded as one of the most important jurists in the legal history of the United States, and the free speech doctrine he outlined in the The Masses case is now the law of the land. In 1917, however, Judge Hand was sitting as a district judge in New York City, and was promptly reversed by the Second Circuit Court of Appeals.

When the Espionage Act came up for review in the Supreme Court, “free speech” claims lost every time. The Espionage Act made it a crime to interfere with military recruiting efforts. In the first case the Court reviewed, Schenck, a Socialist, made an anti-war pamphlet which compared the draft to slavery and advocated resistance to conscription. The Supreme Court affirmed the conviction of Schenck and his associates under the Espionage Act. “When a nation is at war,” Justice Holmes wrote for the Court, “many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” Schenck v. United States, 249 U.S. 47 (1919). This opinion is the one in which Justice Oliver Wendell Holmes, Jr. wrote: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.”

Holmes’ reasoning was incorporated by reference in subsequent opinions. The next case affirmed the conviction of Eugene V. Debs. Debs v. United States, 249 U.S. 211 (1919). Socialist Eugene V. Debs was sentenced to ten (10) years for a speech in Canton, Ohio, on 16th June, 1918, attacking the Espionage Act. (Debs subsequently ran for President in the 1920 election, while still incarcerated in a federal prison in Atlanta, and received over one million votes. )

Then Holmes himself began to have doubts. He and Louis Brandeis dissented in Abrams v. United States, 250 U.S. 616 (1919). On August 23, 1918, six (6) Russian-Jewish anarchists based in New York were arrested, and charged under the Espionage Act for publishing anti-war literature. Only five (5) were tried; the sixth was so badly beaten by the police in the course of his arrest that he died. Justices Holmes and Brandeis dissented because they did not think that pamphleteering by five unknown anarchists constituted a “clear and present danger” to recruiting efforts, or the national security of the United States.

Before the formation of the ACLU, anti-war activists lost every free speech case brought before the Supreme Court and served long prison sentences --five (5), ten (10) even twenty (20) years in prison-- for the conduct that now even the most conservative judges would readily agree is protected by the First Amendment’s free expression and assembly provisions.

Roger Baldwin and the Foundation of the ACLU

During the Red Scare of 1919-20, A. Mitchell Palmer, the attorney general and his special assistant, J. Edgar Hoover, used the Espionage Act and the Sedition Act to launch a campaign against radicals and left-wing organizations. Thousands were arrested and hundreds were given long prison sentences.

Among those arrested and imprisoned was a former social worker, Roger Baldwin. When the United States entered World War I, Baldwin joined the American Union Against Militarism (AUAM). Baldwin was involved specifically in a branch of the AUAM known as the National Civil Liberties Bureau (NCLB), which defended conscientious objectors. In 1918 Baldwin himself was called up for military service, but refused to serve. He was sentenced to a year in jail. After his release in 1919 Baldwin joined the Industrial Workers of the World (IWW). Baldwin then resolved to organize a legal response to the Palmer Raids.

In January 1920, Baldwin joined with Norman Thomas, Jane Addams, Crystal Eastman, Clarence Darrow, John Dewey, Abraham Muste, Elizabeth Gurley Flynn and Upton Sinclair to form the American Civil Liberties Union (ACLU). Baldwin was appointed as the first executive director of the ACLU and over the next thirty five (35) years was involved in its campaigns. Unsurprisingly, the Union’s first major campaign was fighting Attorney General A. Mitchell Palmer.

Palmer, for his part, committed political suicide by claiming to have credible information that a communist revolution would be attempted in the United States on a certain date. When nothing happened on that date, Palmer was discredited.

ACLU and the Scopes Monkey Trial

When Tennessee's law banning the teaching of the theory of Evolution became effective in March, 1925, the ACLU persuaded John T. Scopes, a young science teacher, to challenge the law and risk prosecution. Clarence Darrow, one of the founders of the ACLU, headed the ACLU's volunteer defense team. Scopes was convicted and fined $100. On appeal, the Tennessee Supreme Court upheld the statute but reversed the conviction. While the ACLU obtained poor legal results, it scored an enormous propaganda victory, positioning the organization and its principals to enter the mainstream of public opinion.

ACLU and the Scottsboro Boys

In 1931 in Scottsboro, Alabama, two white women arrested riding a freight train claimed to have been raped by nine black boys. The boys were promptly tried and all but the youngest were sentenced to death. The ACLU intervened, calling the proceedings a “legal lynching” and appealed. The United States Supreme Court overturned the convictions. In a second series of trials, one of the women then recanted her story, and the case was dismissed.

The Scottsboro Trials was one of the first that brought national attention to the terror regime of Southern apartheid, and led ultimately to the legal dismantling of de jure segregation in the 1950’s, including the case of Brown v. the Board of Education, in which the ACLU participated as an amicus curiae.

Stalin’s Purges and the ACLU

Throughout the 1930’s, ACLU director Baldwin became increasingly disenchanted with Stalin and the Soviet Union as news of famine and the Stalinist “purges” reached America. Finally, in 1939, the Soviet Union signed a Non-Aggression Pact with Hitler’s Nazi Germany. Baldwin became a fierce “anti-totalitarian” and conducted a purge of his own, removing the ACLU’s remaining Communists, including co-founder Elizabeth Gurley Flynn.

ACLU v. Concentration Camps

ACLU became involved in the unsuccessful Korematsu case in 1944, challenging the internment of Japanese-Americans in concentrations camps, called by the ACLU "the worst single wholesale violation of civil rights of Americans citizens in our history."

The strongest voices against evacuation and relocation came from ACLU’s Northern California chapter. In the Korematsu case, the national ACLU organization opposed attacking the government’s internment policy (favoring a defense of individual Japanese-Americans on more technical, procedural grounds). While the national chapter’s approach was more likely to succeed, legally, it failed to address the underlying injustice.

The ACLU remains decentralized into state chapters. Requests for legal assistance are routed to state or regional chapters, and the local chapters decide whether to take up a case. To this day, local chapters of the ACLU do not always agree on controversial issues (for example, against pornography or against hate-speech).

ACLU since World War II

Throughout the 1950’s, Congress and many state legislatures passed loyalty oath laws requiring one group or another, particularly public school teachers, to swear that they were not Communists nor members of any "subversive organizations." Throughout the decade the ACLU fought a running battle against the government's loyalty-security program.

The ACLU was the first major national organization to call for the impeachment of President Richard Nixon in 1973, and also in that year began defending the constitutional right to privacy in reproductive matters recognized in Roe v. Wade.

In the 1970’s, ACLU occaisionally departed from its left-wing political roots for the sake of "principle", which in retrospect appears foolhardy. In Buckley v. Valeo, for example, the ACLU successfully promoted constitutional limits on campaign finance reform law. As the influence of organized labor dwindles, this effort seems to benefit only right-wing plutocrats.

The most famous late-seventies ACLU aberration was the defense of neo-Nazi’s right to march in Skokie, Illinois. This was not an important test case: it was well established that the Nazis had the right to march and that the City had the right to tell them when and where. There is always considerable debate within the ACLU over where to direct its extremely limited resources: the Union can only participate in a tiny fraction of the cases where its assistance is requested. This action in Skokie served no long-term civil liberties goals and led to the loss of 70,000 “card-carrying members”.

Ten years later, however, presidential candidate George Bush accused his opponent, Michael Dukakis, of being a “card-carrying member of the ACLU”. The organization’s ranks swelled by 80,000 members (and the ACLU started producing wallet-sized membership cards for donors).


Sources:

www.aclu.org

Cases under the Espionage Act of 1917 and the Sedition Act of 1918: http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/clear&pdanger.htm

Roger Baldwin: www.harvardsquarelibrary.org/unitarians/baldwin_r.html


The author and his wife have volunteered legal services for the ACLU in the past, and probably will again some day, but are currently not "card-carrying members of the ACLU".

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