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The American Civil Liberties Union, or ACLU, is a non-governmental organization (NGO) whose stated goal is to "defend and preserve the individual rights and liberties guaranteed to every person ... by the Constitution and laws of the United States." Lawsuits brought by the ACLU have been influential in several important developments in U.S. constitutional law, and according to the annual report has over 500,000 members as of the end of 2005. The ACLU provides lawyers and legal expertise in cases where it believes an individual's or group of individuals' rights are being challenged by the government or other citizens. In many cases where it does not provide legal representation, the ACLU submits amicus curiae briefs in support of its positions. The ACLU has never officially supported or opposed a political candidate, and is not aligned with any political party, though it has been harshly critical of various elected officials of both the Democratic Party and the Republican Party over the years. Outside of its legal work, the organization has also engaged in lobbying of elected officials and civil liberties activism [1]. The ACLU is one of the most influential NGOs in the United States today; often controversial, its stances have engendered criticism from both sides of the political spectrum (see Critics of the ACLU).

History, structure and leadership

The ACLU was originally established in 1917 as the National Civil Liberties Bureau (NCLB), an outgrowth of the American Union Against Militarism, an organization that was against American intervention in World War I. The NCLB provided legal advice and aid for conscientious objectors and those being prosecuted under the Espionage Act of 1917 or Sedition Act of 1918. The organization was subpoenaed by the New York legislature's Joint Legislative Committee to Investigate Seditious Activities, popularly known as the Lusk Committee, which considered the organization's efforts and pacifist ties to be a vehicle for socialist and communist propaganda. The NCLB changed its name in 1920 to the American Civil Liberties Union.[2]

Founders include Crystal Eastman, Albert DeSilver and Roger Nash Baldwin among others.

In the year of its birth, the ACLU was formed to protect aliens threatened with deportation, and U.S. nationals threatened with criminal charges by U.S. Attorney General Alexander Mitchell Palmer for their communist or socialist activities and agendas (see Palmer Raids). It also opposed attacks on the rights of the Industrial Workers of the World 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 totalitarian dictatorship in any country, or who by his public declarations indicates his support of such a principle." [3] [4] 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 of the USA and the IWW [5]. The ACLU has been criticized by some of its later members for this policy, and in the 1960s there was an internal push to remove this prohibition. [6]

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 proudly acknowledged. [7] It now serves as a jocular recruitment slogan for the ACLU. [8]

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, led to a 20% increase in membership between August 2001 and December 2002, when its total enrollment reached 330,000 [9]. The growth has continued; in August 2004, ACLU membership was at 400,000 [10].

The ACLU has been a vocal opponent of the PATRIOT Act of 2001, the proposed (as of 2003) PATRIOT 2 Act, and associated legislation made in response to the threat of domestic terrorism, that it believes violates either the letter or the spirit of the U.S. Bill of Rights. In response to a requirement of the PATRIOT Act, the ACLU withdrew from a Federal Donation Program that provides matching funds from the federal government for federal employees. The requirement was that ACLU employees must be checked against a federal anti-terrorism watch list. The ACLU estimates that it will lose approximately $500,000 in such contributions. See also: ACLU v. Ashcroft (2004)

Currently, the leadership of the ACLU includes Executive Director Anthony Romero, President Nadine Strossen, and Legal Director Steven Shapiro. Notably, Ruth Bader Ginsburg, a current Justice of the U.S. Supreme Court, founded the ACLU's Women's Rights Project in 1972.

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

Although the ACLU has its national headquarters located in New York City, the organization does most of its work through locally based affiliates, organized into fifty state chapters. These affiliates maintain a certain amount of autonomy from the National organization, and are able to work independently from each other. Many of the ACLU's cases originate from the local level and are handled by lawyers from the local affiliates.

The ACLU's involvement in the internment of Japanese in the United States during World War II, which bears on the question of local autonomy, is misunderstood, and often misrepresented. There are differing ideas on the role the ACLU took, some have argued that the ACLU remained silent on the issue. Still others have claimed that the national branch of the ACLU threatened to revoke the chapter status of the ACLU of Northern California for defending Toyosaburo Korematsu in the Supreme Court in Korematsu v. United States, 323 U.S. 214 (1944). These arguments are hard to square with the fact that the national branch of the ACLU actually filed a brief of amicus curiae with the court on behalf of Mr. Korematsu.

In fact, the ACLU argued that some internments may have been necessary for the security of the nation, but that by interning Americans without giving them a hearing, the military was violating their right to due process. The ACLU argued that the internments should have civilian oversight, instead of military, and that the Japanese in the camps had been interned on the basis of racial discrimination.

State chapters remain the basic unit of the ACLU's organization. In a twenty month period beginning January 2004, the ACLU's New Jersey chapter, to take one example, 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.

Positions

The ACLU's stated mission is to defend the rights of all citizens as enshrined in the Bill of Rights of the United States Constitution. While the bulk of the ACLU's cases involve the First Amendment, Equal Protection and Due Process and cases involving the right to privacy (see, e.g., the Louisiana chapter [11]), the organization has taken positions on a wide range of controversial issues. In particular, the ACLU:

The ACLU has opposed some campaign finance laws such as the Bipartisan Campaign Reform Act, which it considers an inappropriate restriction upon freedom of expression. It does not, however, have a blanket opposition to all laws on campaign finance.

The official policy of the national ACLU argues that the second amendment is "intended mainly 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." [15] The ACLU has generally avoided taking gun-related cases, and this has occasioned criticism by those who consider their interpretation of the amendment to be far "softer" than its "hard-line" stances on other parts of the law.

The ACLU has been noted for vigorously defending the right to express unpopular, controversial, and extremist opinions on both the left and right. Some have expressed the view that the ACLU sometimes plays a role comparable to that played by public defenders, helping to ensure that even unpopular defendants receive due process.

Notable cases

Since its founding, the ACLU has been involved in many cases (see the List of ACLU Cases for a fuller list). A few of the most significant are discussed here.

In 1925, 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 ACLU lost the case and Scopes was fined $100. The Tennessee Supreme Court later upheld the law but overturned the conviction on a technicality.

In 1942, a few months after the Japanese attack on Pearl Harbor, the ACLU affiliates on the West Coast became some of the sharpest critics of the government's policy on enemy aliens and U.S. citizens descended from enemy ancestry. This included the relocation of Japanese-American citizens, internment of aliens, prejudicial curfews (Hirabayashi v. United States, 1943), and the like. However, the national board of the ACLU dodged the issue, taking a mildly pro-government position: it accepted the internment in principle and only demanded that relocatees, once "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, which led to the ban on segregation in U.S. public schools.

In 1973, the organization was the first major national organization to call for the impeachment of President Richard M. Nixon, giving as reasons the violation by the Nixon administration of 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 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 Nazi parades and demonstrations (Skokie had a large Jewish population). A federal district court struck down the ordinances in a decision eventually affirmed by the U.S. Supreme Court. The ACLU's action in this case led to the resignation of about 15 percent of the membership from the organization (25 percent in Illinois), especially of Jewish members. 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 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.

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 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 chapters with fewer resources, such as that in Nebraska, receive subsidies from the national ACLU [16].

The ACLU and its affiliated tax-exempt foundation receive annual support from the Ford, Rockefeller, Carnegie, Field, Tides, Gill, Arcus, Horizons, and other foundations. However, recently the ACLU rejected $1.5 million 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, taking a stand against the attached condition that it would "not knowingly hire anyone on terrorism watch lists." Other key donors include Peter B. Lewis (an insurance magnate) [17].

It is sometimes asserted that the ACLU collects legal fees in the event that they are involved on the winning side of a legal judgment [18]. As described in greater detail below, while there are restrictions on how fees may be collected, the ACLU has in a number of cases indeed received substantial monetary awards.

The awarding of legal fees to groups like the ACLU in civil rights cases remains highly controversial for some. The Public Expression of Religion Act of 2005, for example, introduced by Representative John N. Hostettler, seeks to alter prior civil rights legislation to prevent monetary judgements in the particular case of violations of church-state separation [19], and groups such as the American Legion have taken stances opposing the ACLU's right to collect fees under such legislation [20]. On the other hand, the recovery of legal fees by non-profit legal advocacy organizations is common practice across the political spectrum; the pro-life Thomas More Law Center, for example, generally seeks, and is successful in, recovery of legal fees in the same manner as the ACLU [21], [22].

In many cases however, due to the nature of its legal work, the ACLU is involved in litigation against governmental bodies, which are generally protected from adverse monetary judgements: i.e., 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 [23]; [24].

In some cases, the law does permit plantiffs who successfully sue government agencies to collect damages. In particular, a 1976 Federal law, the Civil Rights Attorney's Fees Awards Act, among other similar laws, does leave the government liable in some civil rights cases. In many cases where the ACLU represents plantiffs, the case is handled not by ACLU attorneys, but by sympathetic law firms who provide their services pro bono. In these cases, the law firm may sue for legal fees; in such circumstances the money would be awarded to the firm, and not the ACLU. [25]

These caveats aside, the ACLU and its state chapters do, in cases where they provide legal services and laws permit government liability, share in monetary judgements against government agencies. It shared, for example, with other plantiffs in a $156,960 judgement against the State of Nebraska in a gay marriage case now on appeal [26].

A separate example involves a string of church-state cases. The Georgia chapter was awarded $150,000 in fees after suing a county courthouse for the removal of a Ten Commandments display [27]; a second Ten Commandments case in the State, in a different county, led to a $74,462 judgment [28]. 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 [29], [30].

The State of Kentucky was in fact required by courts to pay the ACLU nearly $700,000 in legal fees in the years 1994-2003, mainly for passing abortion and state religion-related laws later struck down by courts [31]. Ref. [32] is a partial list of various judgments awarded to the ACLU and its state chapters over the years, which cover a wide variety of cases including judgments involving creationism, internet pornography, church-state and free speech cases, and total approximately $2.9 million. Usually, judgements are made against states, although Operation Rescue was required to pay the Union $111,000 in fees in a San Diego case.

When taking on highly contentious cases the ACLU leaves itself liable to potentially damaging judgements against it if it were found to be filing a "frivolous" suit, regardless of whether the government may be liable. [33]

Membership

The membership of the ACLU is very diverse and welcomes people from all walks of life. People who are gay, transgender, non religious, and ethnic minorities tend to identify with the ACLU. The majority of members are Jewish; and Jews make up 2/3rds of the ACLUs membership and also reside in many leadership positions. The ACLU has had several prominent supporters over the years such as Charleton Heston and various celebrities.

Controversial stances

The organization believes that free speech rights must be available to all citizens and residents of the United States. Therefore, it has taken on unpopular cases to defend the free speech rights of clients such as Ku Klux Klan members, neo-Nazi groups, and NAMBLA, a group which supports legalization of pederasty. A number of controversial cases in which the ACLU has been involved are discussed in the sections below.

The ACLU has defended Frank Snepp formerly of the Central Intelligence Agency (from an attempt of this government agency to gag him) and Lieutenant Colonel Oliver North (convicted on the basis of coerced testimony—a violation of his fifth amendment rights).

The ACLU's stance on spam is considered controversial by a broad cross-section of political points-of-view. The ACLU has opposed many anti-spam laws, and in 2000 Marvin Johnson, a legislative counsel for the ACLU, claimed that anti-spam laws are a bad idea because "it's relatively simple to click and delete," [34] advice which is rejected by many spam fighters. [35] The debate found the ACLU joining with the Direct Marketing Association and the Center for Technology and Democracy in criticizing a bipartisan bill in the House of Representatives in 2000; already by 1997 the ACLU had taken a strong position that nearly all spam legislation was improper [36], although it has supported "opt-out" requirements in some cases. Most recently the ACLU opposed the 2003 CAN-SPAM act [37] suggesting the possibility of a chilling effect.

In many cases, whether or not a stance is considered controversial depends on other political views the critic may hold. These are discussed in greater detail in sections below.

Critics of the ACLU

The ACLU's involvement in hundreds of legal cases over the years have led to a great deal of criticism from numerous points of view. In many situations, the criticism may be focused on the ACLU's stance in a particular case or group of cases; in others, the criticism focuses on the general principles that guide the ACLU's choices of which cases to take.

It may be taken for granted that many groups oppose some or all of the ACLU's "positions" listed above; here we discuss only the most general themes the criticism has taken.

Conservative critics

The ACLU's most vocal critics are generally those who consider themselves, or are commonly regarded as, conservatives. Many of these conservatives allege that the ACLU has not dedicated itself to the defense of constitutional rights, but that it seeks to advance a liberal agenda. Some critics point to its opposition to the death penalty, which has been declared constitutional by the Supreme Court of the United States since 1976, although it had been declared unconstitutional in practice from 1972 to 1976. The ACLU continues to argue that the death penalty violates the Eighth Amendment restriction against "cruel and unusual punishment," the Fourteenth Amendment guarantee of equal protection, and that it is contrary to international human rights norms.

The 1980 Polovchak v. Meese case is also sometimes considered evidence of liberal sympathies on the part of the ACLU. Walter Polovchak was from Ukraine, at that time part of the Soviet Union, and when his parents were returning to Ukraine, tried to stay in the US and claim political asylum. The ACLU attempted to block him from doing so. In 1999 the Florida chapter of the ACLU referred to the ACLU's role in the Polovchak case in their brief for the Elián González case.

Critics also argue that the ACLU has not been consistent in defending all civil liberties, pointing out that it is not active in protecting gun rights. Critics claim gun rights enjoy similar constitutional protection to other civil rights and should be treated equally by the ACLU if it is not motivated by a partisan agenda. 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 the unlimited possession of weapons by individuals is not constitutionally protected. [38]

Some critics argue that this position is inconsistent with their stated philosophy, and have suggested that the ACLU may only adopt this stance to appease liberal-leaning supporters of the group who happen to also support gun control. Critics also point out that the ACLU does not take up cases that involve possible abuses by the BATFE that go beyond the debate over the private ownership of firearms. [39] The ACLU has been involved in a few gun rights cases; most recently the ACLU of Texas joined with the NRA in favor of a proposed Texas law, HB 823, in 2006, and claiming that current legislation allowed for the harassment of gun owners [40].

In 1982, the ACLU became involved in a case involving the distribution of child pornography (New York v. Ferber, 458 U.S. 747 [41].) 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 [42]. The ACLU's stance on this case has drawn great criticism from conservatives [43]. In a 2002 letter, the ACLU stated that it "opposes child pornography that uses real children in its depictions" [44].

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

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, and frequently criticizes the group [45].

Michael Medved has referred to the ACLU sarcastically as the "American Criminal Lawyer Union", due to its frequent stances at end with conservatives. The construction of alternative backronyms is something of a sport; others invented by critics include "American Communist Lawyers Union" [46]. The group "Stop the ACLU" ran a backronym contest [47]. The thirty entries variously implied that the ACLU was 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.

Conservative Christian critics

At the grassroots level, the ACLU often involves itself in cases involving the separation of church and state. Therefore, some Christians, including many who may be considered conservative Christian, often take issue with its positions. Many in this community contend that the ACLU is part of an effort to remove all references to religion from American government.

In 2004, for example, the ACLU of Southern California (ACLU/SC) threatened to sue the city of Redlands, California if it did not remove a picture of a cross from the city's seal. The ACLU/SC argued that having a cross on the seal amounted to a government-sponsored endorsement of Christianity and violated separation of church and state. The city complied with the ACLU/SC and removed the cross from all city vehicles, business cards, and police badges. However, the issue will be put on the November 2005 ballot [48]. The ACLU/SC also threatened Los Angeles County, California if it did not remove an image of a cross from its seal. As in the Redlands case, the county board complied with the demands and voted to remove the cross from its seal as well. There was a petition against the changing of the seal, which ended on August 15, 2005 [49].

In 1990, Pat Robertson founded the American Center for Law and Justice, as a counterweight to the ACLU, which is perceived by Robertson as "liberal" and "hostile to traditional American values"; another non-profit legal center, the Thomas More Law Center, also bills itself as the "Christian answer to the ACLU."

After the September 11, 2001 terrorist attack, the Rev. Jerry Falwell remarked that the ACLU, by trying to "secularize America," had provoked the wrath of God, and therefore caused those terrorist attacks. (Falwell later apologized for the remark.) Other critics of the ACLU do not make such strong accusations, but claim that the organization pushes the concept of separation of church and state beyond its original meaning. The ACLU and Jerry Falwell sometimes find themselves on the same side. Notably, the ACLU filed an amicus brief supporting a suit by Falwell against the state of Virginia. The suit, which was successful, overturned the Virginia constitution's ban on the incorporation of Churches. In addition, the ACLU has defended the rights of a Christian church to run anti-Santa ads on Boston subways, the rights to religious expression by jurors, and the rights of Christian students to distribute religious literature in school. [50]

While the ACLU does oppose the use of crosses in public monuments [51], [52], 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. [53]

Many minority religious groups like Jehovah's Witnesses and Muslims have at times been defended by the ACLU and are ardent supporters of it. In the Mormon community, the ACLU is viewed positively by some, who cite Santa Fe Independent School Dist. v. Doe, a case litigated by the ACLU on behalf of a Mormon student concerning school prayer [54]. However, a good number of Mormons, including some local leaders, are strongly against the activities of the ACLU [55].

Jehovah's Witnesses were involved in twenty-three Supreme Court rulings between 1938 and 1946 over religious objections to serving in the armed forces and over saluting the flag and reciting the pledge of allegiance [56], over local and state ordinances prohibiting the Witnesses from publishing criticisms of the Roman Catholic church [57], as well as over government reluctance to prosecute anti-Witness vigilantes; the ACLU was directly involved in these cases [58]; the ACLU's involvement with Jehovah's Witnesses continues, and they joined the Witnesses in a 2002 case over doorbell-ringing [59].

Liberal critics

The ACLU has also, though less frequently, been subject to criticism from the political left. Some critics object to the organization's advocacy for corporations' protection by the Bill of Rights known as corporate personhood, as well as its stance against some campaign finance reform laws.

Feminist & Left critics

Some anti-pornography activists, including Catherine MacKinnon, who oppose pornography on feminist grounds, are also strong critics of the ACLU; in her lifetime, Andrea Dworkin's positions on pornography also led her to oppose the ACLU. Always Causing Legal Unrest (ACLU) was started by Nikki Craft to protest the ACLU's defense of corporate 'speech' she and the group consider misogynist.

Libertarian critics

While some refer to the ACLU as a libertarian organization and while the ACLU has defended the US Libertarian Party in recent cases [60], a number of libertarians and objectivists oppose the ACLU for its support of laws that they view as distinctly anti-liberty, such as affirmative action and anti-discrimination laws that apply to private property. Former ACLU member Nat Hentoff has criticized the organization in a libertarian vein for promoting affirmative action and for supporting what he sees as government protected liberal speech codes enacted on college campuses and the workplace [61].

Law professor David Bernstein's book "You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws" takes the ACLU to task for frequently seeking to undermine expressive rights when they 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" [62], the Institute for Justice.

National affiliates

Below are some of the ACLU's bigger affiliates:

Further Reading

The Left The Right and the Jews - W.D. Rubinstein, 1982 Universe Books

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