How the ACLU Works

The precursor to the ACLU began with the anti-militarism movement during World War I. Some Americans were opposed to U.S. involvement in the war and the mandatory draft. In 1915, a group of pacifists in New York formed the American Union Against Militarism (AUAM) to work against this through political activism and the publication of anti-war newsletters, magazines and leaflets. However, any kind of dissent against the war was deemed un-patriotic and dangerous at the time. President Woodrow Wilson said, "the authority to exercise censorship is absolutely necessary to the public safety" during war time [ref]. President Theodore Roosevelt called anti-war advocates "enemies at home." [ref]. Many of those in the anti-war movement were Marxists, anarchists and immigrants, which didn't help the cause.

Those working against the war soon realized that the real fight was against government repression. Crystal Eastman and Roger Baldwin, both social workers and supporters of the labor movement, formed a group within the AUAM to assist with the legal cases of those who had been prosecuted, fined or imprisoned for printing or saying things that were against the war. This group was the Civil Liberties Bureau. Eventually, AUAM split because of Eastman and Baldwin's association with so-called radical groups. When AUAM faded, the two formed the National Civil Liberties Bureau (NCLB).

After refusing to comply with a draft notice, Baldwin served a year in jail. Upon his release, Baldwin headed up a restructured NCLB, now the American Civil Liberties Union. The ACLU's official "birthday" is January 19, 1920 [ref].

Initially, the ACLU did not see litigation as the primary means of affecting change. Baldwin intended to use publicity, protests and publications. The reason for this was simple -- the courts of the time, including the Supreme Court, were openly hostile toward civil liberties. The NCLB had lost virtually all the court cases they had fought during the war years.

The ACLU was soon working on a wide range of issues, including supporting labor unions, opposing military propaganda in schools and working with the NAACP to ensure the rights of black Americans in an era before Civil Rights had become a major American issue.

In the next section, we'll examine the influence the ACLU has had on Constitutional law.

A very small number of court cases actually end up before the Supreme Court. Many of the ACLU's victories came in lower courts, but these cases still led to a gradual increase in the legal standing of civil liberties. Those cases that did come before the Supreme Court are among the most famous, and important, in U.S. history.

The ACLU began to see real gains in the area of civil liberties in the 1930s. In earlier cases, the Supreme Court seemed to disdain freedom of speech. In the case of Gitlow vs. New York, the Court upheld a conviction for publishing a socialist newsletter on the grounds that entire classes of speech could be outlawed if they had a "dangerous tendency," even if the speech itself did not lead to violence [ref]. In 1931, the Court ruled Stromberg v. The People of the State of California in favor of Yetta Stromberg, a young woman who ran a Communist children's camp that displayed a red flag. She was defended by ACLU attorneys. A California law had made such a flag illegal [ref].

The Supreme Court decided a major case, West Virginia State Board Of Education v. Barnette, in 1943. In this case, a school board expelled 2,000 students who were Jehovah's Witnesses for refusing to recite the Pledge of Allegiance. Their religious beliefs forbade them from worshipping images, including the flag. With the ACLU at their defense, the Jehovah's Witnesses won the case. The Supreme Court declared that no official could force anyone to declare his or her belief in any religion or nation [ref].

In the 1944 case of Smith v. Allwright, the ACLU argued that a Democratic Party's "white primary" was illegal because it denied blacks a chance to participate in the democratic process. Previously, courts had declared political parties to be private organizations that were not subject to anti-discrimination laws. However, the Supreme Court declared that participation in a political primary was too crucial to the running of a democracy and the civic participation of citizens to allow certain classes to be excluded [ref]. This ruling also strengthened the federal government's power over state governments.

A 1952 case, Joseph Burstyn, Inc. v. Wilson, had lasting repercussions in the American film industry and was a landmark case in overturning government censorship. New York's State Board of Regents blocked theaters from showing the film "The Miracle" because Catholic officials called it sacrilegious. City officials threatened theaters with revocation of their licenses if they showed it. In some cases, they simply banned the film outright. Justice Tom Clark stated, "The state has no legitimate interest in protecting any or all religions from views distasteful to them. It is not the business of our government to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures." [ref].

Engel vs. Vitale, 1962, was one of several cases to establish that prayer and Bible readings couldn't be conducted in public schools by school officials, even if they were voluntary [ref].

Recent ACLU efforts overturned the Communications Decency Act of 1996 because elements of the act limited indecent speech, which is protected by the First Amendment. The ACLU has also led the fight against the USA Patriot Act and other civil liberty restrictions enacted in the wake of the 2001 terrorist attacks. Another primary focus has been surveillance of American citizens by the National Security Agency (NSA), which the ACLU considers illegal.

Next, we'll learn about some of the ACLU's most controversial cases.

Many of the ACLU's cases were controversial at the time, but some of them exposed great divides in the views of the American public, and even schisms within the ACLU itself. This was never more true than in the 1930s and 40s, when the ACLU simultaneously defended the rights of blacks on behalf of the NAACP and the right of the Klu Klux Klan to hold rallies and give speeches calling for the abolition of those rights. The ACLU's decision to defend anyone's rights, even the rights of people whose ideas they may abhor, was famously satirized by The Onion in this article, titled "ACLU Defends Nazis' Right to Burn Down ACLU Headquarters."

This issue also became apparent when the ACLU found itself defending Henry Ford for making anti-union statements in 1937. The National Labor Relations Board (NLRB) declared that anti-union remarks directed towards employees could be restricted because the employees could perceive them as direct threats against joining a union. The ACLU, usually a staunch supporter of the labor movement, felt that Ford's right to free speech must be maintained, although some members of the organization disagreed.

One of the ACLU's most infamous cases was the Skokie Free-speech Controversy. In 1977, the National Socialist Party of America, a small group of neo-Nazis based in Chicago, requested permission from the suburb of Skokie, IL to hold a demonstration. Since World War II, Skokie had become a center of Chicago's Jewish community and included a large number of Holocaust survivors. Officials initially responded by pointing out a law that required a $350,000 insurance bond before they could grant permission to demonstrate. Neo-Nazi leader Frank Collin turned the refusal into a free speech issue, claiming that the community was repressing the group's right to assemble and express their views. He asked the ACLU for help.

The ACLU agreed with Collin. After a series of appeals, the Illinois Appellate Court declared that the demonstration, speech and even the display of the swastika were forms of political speech protected by the First Amendment. The court overturned the insurance statute because the prohibitive cost of such an insurance policy (about $1,000) meant that anyone without the funds would be unable to demonstrate.

In the end, Nazis never demonstrated in Skokie, even though they received a permit to do so. Eventually, a few dozen Nazis demonstrated in downtown Chicago, escorted by police and surrounded by thousands of angry protestors.

The case was a landmark affirmation that the government cannot control speech based on the content of the speech itself, no matter how objectionable. Despite many arguments against it, the ACLU had stayed true to its principle of defending the civil liberties of even the most abhorrent and hated groups. The ACLU's point is that it is not up to the government to draw the line between what we are allowed to see and hear and what is forbidden; each individual gets to make that decision on his or her own. Taking a stand on this issue cost the ACLU dearly in terms of financial and volunteer support, but the resulting organizational shake-up may have led to better long-term health for the organization.

Next we'll look at how the ACLU is organized.

Today, the ACLU comprises two different organizations. Collectively these groups go under the name ACLU, but each branch undertakes different tasks in defense of civil liberties. The American Civil Liberties Union focuses primarily on political lobbying. When someone "joins" the ACLU and gets a membership card, they are joining this branch of the organization. Laws restrict lobbying groups from accepting tax-deductible donations, so membership dues are not tax deductible. The ACLU Foundation works through litigation and communication efforts. Donations made to the ACLU Foundation are tax deductible.

The ACLU national headquarters is in New York City, NY, but each state has its own chapter. Each chapter operates autonomously, although some smaller chapters receive funding from the national chapter. On certain major cases, the national chapter gets directly involved. The national organization formulates ACLU policies and positions, but the chapters are not required to adhere to them. In many cases, the national organization and its chapters have disagreed over the proper course of action.

Each chapter is largely responsible for its own funding. While funding sources and amounts vary from chapter to chapter, roughly half comes from donations. Remaining funding consists of grants from other organizations, ACLU investments, and attorney fees, which are awarded when the ACLU wins a case. This last funding source has caused some controversy.

Within each chapter, members participate by donating funds, volunteering at events and disseminating information via e-mail and action committees. Cooperating attorneys are some of the most important volunteers for the ACLU. They provide their services for cases pro bono (free of charge). Sometimes, cooperating attorneys directly represent defendants in ACLU cases. In other situations, they file amicus curiae, or "friend of the court," briefs with courts that are currently trying a case of interest to the ACLU. Attorneys file these briefs when the decision in the case would affect parties beyond those directly involved. The intention is to provide information to the court that might help it render the appropriate decision in the case. Cooperating attorneys also help the ACLU analyze new legislation that could affect civil liberties, file complaints or comments with regulatory agencies, and participate in public information programs. The ACLU also has several paid attorneys who work for the organization full-time.

Next, we'll discuss ACLU attorneys' fees and other reasons people are opposed to the ACLU.

People oppose the ACLU for many different reasons. Often, it comes down to a single issue or set of issues. For example, many religious groups oppose the ACLU because it actively works to maintain the separation of church and state. These efforts gain extra attention every December when they speak out against religious displays and nativity scenes on government property. In recent years, this has turned into a backlash against a perceived "War on Christmas."

One of the most pervasive opponents of the ACLU is Catholic League President William A. Donohue. He has written several books on the ACLU, and has praised it at times for fighting for the civil liberties of Catholics. Conversely, Donohue has stated that the ACLU's defense of freedom of speech has led to civil disorder as well as expensive and unnecessary social service programs [ref]. Criticism of the ACLU also stems from the feeling that some civil liberties should be restricted in favor of security, especially in times of war or crisis. Considering the origins of the ACLU, it is unlikely that it would ever agree with such a position.

The ACLU's collection of attorneys' fees also concerns some critics. If the ACLU wins a case argued by one if its attorneys, it can sue for recovery of attorneys' fees. Government officials, agencies and institutions are often immune to this sort of recovery, but not always (it depends on the applicable laws and the nature of the civil rights violation). These fees can be very costly, often reaching six figures. Some claim that the ACLU uses these fees as a form of intimidation, forcing municipalities to do what it says for fear of paying tremendous fees [ref]. Some see this as a case of government money ("tax-payer dollars") indirectly funding the ACLU. However, other legal aid organizations sue to collect attorneys' fees as well.

Regardless of its critics, the ACLU isn't likely to go anywhere -- it's been one of the most active (and controversial) legal aid organizations of the past 80 years. Whether they agree or disagree with its policies, the ACLU's actions have encouraged many Americans to closely consider the rights granted them by the Constitution.

Check out the links on the next page for more information about the ACLU and related topics.