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The American Civil Liberties Union (ACLU) consists of two separate non-profit organizations: 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. The ACLU's 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."
It works through litigation, legislation, and community education.
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The American Civil Liberties Union (ACLU) consists of two separate non-profit organizations: 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. The ACLU's 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."
It works through litigation, legislation, and community education. Founded in 1920 by Crystal Eastman, Roger Baldwin and Walter Nelles, the ACLU was the successor organization to the earlier National Civil Liberties Bureau founded during World War I. The ACLU reported over 500,000 members at the end of 2005.
Lawsuits brought by the ACLU have been influential in the evolution of Constitutional law. 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.
Outside of its legal work, the organization has also engaged in lobbying of elected officials and political activism. The ACLU has been critical of elected officials and policies of both Democrats and Republicans.
History
Roger Nash Baldwin became head of the National Civil Liberties Bureau (NCLB) in 1917. An independent outgrowth of the American Union Against Militarism, the Bureau opposed 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 the Sedition Act of 1918. In 1920, the NCLB changed its name to the American Civil Liberties Union, with Baldwin continuing as its director and Walter Nelles as 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. Among the founding members was Felix Frankfurter, who later became an Associate Justice of the Supreme Court of the United States. DeSilver and Nelles were Baldwin's closest associates.
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 (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." 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.
Conservatives and Republicans 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." The phrase subsequently was used by the organization in an advertising campaign.
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. The growth continued, and by August 2008 ACLU membership was greater than 500,000.
Leadership, funding and organizational structure
Leadership
Currently, the leadership of the ACLU includes Executive Director Anthony Romero and President Susan Herman. 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. And Judith Krug, Director of the American Library Association Office for Intellectual Freedom since 1967, was for three years concurrently on the Board of Directors of the Illinois Division of the ACLU. "She has been very successful in promulgating the ACLU's views within the country's libraries, and the ACLU has honored her with awards."
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.
Funding
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.
Foundations
In October 2004, the ACLU rejected $1.5 million from both the Ford and Rockefeller Foundations. The Foundations had adopted language from the USA PATRIOT Act into 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.
Court awarded damages and attorney's fees
In 2004, court-awarded damages and attorney fees composed a 3% (net) of ACLU Foundation funding; state affiliates also receive money from such fees, although the national headquarters does not.
Recovery of attorney's' fees by non-profit legal advocacy organizations is common practice. The pro-life Thomas More Law Center, for example, generally seeks, and is successful in, recovery of attorney's fees in the same manner as the ACLU. In 2005, the Thomas More law center derived 4.8% of its funding from court-awarded legal fees in this manner.
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.
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. Under laws such as this, the ACLU and its state affiliates sometimes share in monetary judgments against government agencies.
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; a second Ten Commandments case in the State, in a different county, led to a $74,462 judgment. 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. 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. Also, groups such as the American Legion have taken stances opposing the ACLU's right to collect fees under such legislation.
Organizational structure
The national headquarters of the ACLU is located in New York City. The organization does most of its work through 53 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, California has three affiliates, Pennsylvania has two, Missouri has two (one combined with Kansas), The Dakotas share one. 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. All membership dues and tax-deductible donations are shared between the affiliates and the national office.
Positions
While the bulk of the ACLU's cases involve the First Amendment, Equal Protection, due process, and the right to privacy, the organization has taken positions on a wide range of issues. According to the ACLU, it 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.
- The decriminalization of drugs such as heroin, cocaine and marijuana.
- Separation of church and state; under this mandate, the ACLU:
- Opposes the government-sponsored display of religious symbols on public property.
- Opposes official prayers, religious ceremonies, and some kinds of "moments of silence" in public schools or schools funded with public money.
- Full freedom of speech and of the press, including school newspapers.
- Abolition of capital punishment.
- Reproductive rights, including access to contraception and abortion.
- 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.
- Affirmative action as a means of redressing past discrimination and achieving a racially diverse student body.
- The rights of defendants and suspects against unconstitutional police practices.
- Privacy as it "works to preserve the American tradition that the government not track individuals or violate privacy unless it has evidence of wrongdoing."
- Immigrants' rights by "challenging unconstitutional laws and practices, countering the myths upon which many of these laws are based."
- Concerning the Second Amendment, specifically gun control, the ACLU embraces the States' Right Model interpretation of the Second Amendment, which only recognizes a state's right to possess firearms, the organization officially declares itself "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 firearms by individuals is not constitutionally protected."
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.
While the ACLU does oppose the use of crosses in public monuments, 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.
Controversial stances
The ACLU has for years been a controversial organization by nature, with most of their support coming from the left and opposition from the right. The reasons for opposition are varied, although conservatives often view the ACLU stance of separation of church and state as anti-religious, 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. Although the ACLU does not endorse NAMBLA's message, its defense of the group has been widely criticized. Additionally, the ACLU has initiated several court cases involving government funding of organizations that discriminate against homosexuals and atheists, prominently including the Boy Scouts of America.
Among the most notable controversial cases which involved the ACLU are the following:
- The ACLU currently opposes, under the ex post facto clause of the Constitution, the retroactive application of Megan’s Law (which requires law enforcement authorities to identify convicted sex offenders to the public at large through various media outlets) to persons convicted before the law was passed. The ACLU initially opposed the bill in its entirety, considering it "misguided political posturing that [would] do nothing to reduce sex crimes," but has not advocated that position recently.
- The ACLU also defended Lieutenant Colonel Oliver North, whose conviction was tainted by coerced testimony — a violation of his fifth amendment rights.
- The ACLU fought for the Westboro Baptist Church and Shirley Phelps-Roper after legislation prevented the group from picketing outside of veterans' funerals. 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." The suit was successful.
- The ACLU has filed 6 lawsuits against the Tangipahoa Parish, Louisiana school board over what the group sees as teacher-led prayer in school activities.
- 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.
- The ACLU has aided the Florida Justice Institute and WriteAPrisoner.com in supporting prisoner's rights, especially what the ACLU sees as the First Amendment right to post online profiles seeking pen pals during their incarceration and jobs upon their release.
- In 2006, the ACLU of Washington state and the Second Amendment Foundation jointly filed a lawsuit against the North Central Regional Library District (NCRL) in Washington State 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.
Much ACLU work is done in the political arena where it faces frequent controversy as well.
- 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. 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."
See also: American Civil Liberties Union v. Ashcroft (2004)
- The ACLU opposes the use of capital punishment, calling it "the ultimate denial of civil liberties." The ACLU claims that the death penalty is unfairly applied to racial minorities and the poor, and considers it "cruel and unusual" punishment. The organization often opposes executions on the grounds that the present method of lethal injection sometimes goes awry.
- 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." 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, although it has supported "opt-out" requirements in some cases. The ACLU opposed the 2003 CAN-SPAM act suggesting that it could have a chilling effect on speech in cyberspace.
Notable historical cases
Since its founding, the ACLU has been involved in many cases. A few of the most significant are discussed here.
1920–1960
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 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.
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.
1960–2000
In 1967, the ACLU successfully argued against state bans on interracial marriage, in the case of Loving v. Virginia.
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. 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. The ACLU's action in this case led to a rift between the Jewish Defense League and the ACLU. 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. 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.
In 1982, the ACLU became involved in a case involving the distribution of child pornography (New York v. Ferber). 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.
2000–present
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."
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.
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.
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. On August 17, 2006, that court ruled that the warrantless wiretapping program is unconstitutional and ordered it ended immediately. However, the order is stayed pending an appeal. The Bush administration did suspend the program while the appeal was being heard. In February 2008, the US 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."
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 and two others in California requesting injunctions against AT&T and Verizon. On August 10, 2006, the lawsuits against the telecommunications companies were transferred to a federal judge in San Francisco.
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 Puerto Rican Legal Defense and Education Fund sued Hazleton, saying the ordinance was unconstitutional. On July 26, 2007, a federal court agreed and struck down the Hazleton ordinance; Hazleton's mayor promised to appeal the decision.
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.
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.
Bibliography
The Politics of the American Civil Liberties Union (New Brunswick, NJ: Transaction Books, 1985) ISBN 0-88738-021-2Peggy Lamson, Roger Baldwin: Founder of the American Civil Liberties Union (Boston: Houghton Mifflin Company, 1976) ISBN 0-395-24761-6Samuel Walker, In Defense of American Liberties: A History of the ACLU (New York and Oxford: Oxford University Press, 1990) ISBN 0-19-504539-4
See also
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