American Civil Liberties Union (ACLU)
The American Civil Liberties Union (ACLU) is a private nonprofit organization dedicated to the defense of civil liberties. The ACLU defines civil liberties as rights enjoyed by individuals over and against the power of government. The ACLU’s agenda of civil liberties issues includes First Amendment rights, including freedom of speech, press and assembly, the free exercise of religion, and a prohibition of a government establishment of religion; equal protection of the laws, including equality for racial and ethnic minorities, women, and other groups that have experienced discrimination; due process of law, including protection against unreasonable searches and seizures and protection against self-incrimination; and the right to privacy, including reproductive rights and the privacy of personal information. In addition, since the 1970s, the American Civil Liberties Union has fought issues related to national security and the war on terrorism that result in violations of civil liberties by the federal government.
The ACLU was founded in New York City in January 1920. It grew out of the National Civil Liberties Bureau (NCLB), which had been created in 1917 to fight the suppression of freedom of speech and other violations of civil liberties during World War I. The NCLB was founded and led by Crystal Eastman and Roger Baldwin, who were political activists opposed to the involvement of the United States in World War I. Health problems soon forced Eastman to withdraw and Baldwin became the leader of the NCLB. Following the war, Baldwin and others in the NCLB felt there was a need for a permanent organization to continue to fight for civil liberties. They created the ACLU with Baldwin as director. In 1920, the ACLU had only about 1,000 members nationwide and membership remained low for several decades.
Roger Baldwin led the organization until his retirement in 1950. Over that thirty-year period he was widely recognized as the principal advocate of civil liberties in the United States. When the ACLU was founded, the political and legal climate of the United States was extremely hostile to the idea of civil liberties. Many people associated the phrase ‘‘free speech’’ with disloyalty and radical political doctrines. There were no Supreme Court decisions or statutes protecting freedom of speech or other civil liberties. In a series of World War I-related cases, the Court ruled that the government could prosecute individuals for speech that posed a ‘‘clear and present danger’’ to society (Schenk v. United States, 1919). The Clear and Present Danger Test was interpreted very broadly, however, to include virtually any criticism of the government.
Faced with extreme hostility to civil liberties in the courts and in legislatures, the American Civil Liberties Union in its first two decades devoted its efforts primarily to public education. It issued numerous pamphlets and statements about particular controversies and occasionally staged public protests to dramatize a particular issue. During these early years the ACLU’s litigation program was very limited. Much of the ACLU’s work in its first years was devoted to the rights of working people and labor unions. Courts were very sympathetic to employer requests for injunctions denying workers the right to hold public demonstrations in favor of organizing labor unions.
The first case to bring the ACLU favorable national attention was the so-called ‘‘Scopes Monkey Trial’’ in 1925. The ACLU challenged a Tennessee law outlawing the teaching of evolution in the public schools, representing biology teacher John T. Scopes, who was prosecuted under the law. The July 1925 trial in Dayton, Tennessee, created a sensation, drawing journalists from around the world. Scopes was convicted at trial, but a state appellate court overturned the conviction because the judge erred in imposing the punishment. The state did not retry Scopes, and as a result the issues of constitutional law raised by the case never reached the U.S. Supreme Court. The Scopes case is one of the most famous trials in American history, dramatizing the issues of the freedom to teach unpopular ideas and opposition to government establishment of religion.
The Scopes case was part of the American Civil Liberties Union’s long defense of Academic Freedom. It has fought attempts to have public school teachers and college professors fired because of unpopular ideas and has also fought loyalty oaths for teachers, which were widely used during the cold war period. In the 1960s, the ACLU expanded its work on Academic Freedom to include the rights of students. This has included the right of students to express unpopular ideas and due process rights for students facing discipline.
The ACLU enjoyed its first significant victories in the Supreme Court in 1931. The Court overturned the conviction of a California women convicted of possessing a red flag (Stromberg v. California, 283 U.S. 359, 1931) and ruled that the First Amendment prohibited prior restraint of newspapers (Near v. Minnesota, 283 U.S. 697, 1931). The Supreme Court did not begin to affirm civil liberties protections to a significant degree until the late 1930s, however. In a famous footnote in the case of U.S. v. Carolene Products, 304 U.S. 144 (1938), the Court declared that its role was to protect political and civil liberties, particularly of powerless people. In response, the ACLU altered its priorities and began to put more emphasis on litigation as a strategy for protecting civil liberties.
With the Supreme Court increasingly sympathetic to civil liberties after 1938, the ACLU exerted an enormous influence over the development of American constitutional law. One historian estimates that the ACLU was involved, directly or indirectly, in 80 percent of all recognized landmark civil liberties cases decided by the U.S. Supreme Court in the twentieth century. The ACLU initially confined its role to filing amicus (‘‘friend of the court’’) briefs in court cases, addressing only the civil liberties issues involved in a case. In the 1960s, it began providing direct legal representation to its clients, handling cases at the initial trial level.
The ACLU’s basic principle on free speech is that the First Amendment prohibits any restrictions on expression based on the content of the ideas expressed. Consequently, the organization has consistently defended the free-speech rights of communists and advocates of other radical political ideas. Under the same principle, the ACLU has fought censorship of literature containing allegedly offensive material. In one of its most famous cases, it overturned a U.S. Customs Bureau ban on the James Joyce novel Ulysses. The American Civil Liberties Union has also taken a broad definition of expression, arguing in cases that ‘‘expression’’ includes nonverbal as well as verbal expression. In 1967, the ACLU won a landmark case upholding the right of a public school student to wear an armband protesting the Vietnam War.
The ACLU defended the rights of Jehovah’s Witnesses in a long series of cases and controversies from the late 1930s to the early 1950s. Because their doctrines and tactics were extremely unpopular, the Jehovah’s Witnesses were subject to restrictive laws and attacks by vigilante groups. Several cases helped to define First Amendment protection for the free exercise of religion. The most famous controversy involved the refusal of public school students who were members of the Jehovah’s Witnesses to participate in compulsory salutes of the American flag. In the landmark case of West Virginia v. Barnette, 319 U.S. 624 (1943), the Supreme Court affirmed the principle that the government cannot compel a person to express a belief that is contrary to his or her conscience.
The ACLU has been particularly controversial because of its position on the separation of church and state. The ACLU has held that the Establishment Clause of the First Amendment prohibits any government support or endorsement of religious activity. Since the 1925 Scopes case, the ACLU has fought other efforts to prohibit the teaching of evolution or to require the teaching of religious views of the creation of the universe. In the 1940s and 1950s, the ACLU fought government financial support for religious activities in public schools. In 1962, the ACLU won one of its most controversial cases when the Supreme Court ruled that mandatory religious prayers in public schools violated the Establishment Clause of the First Amendment. The organization has also generated controversy by opposing religious displays in public buildings. The majority of these controversies involved religious displays in front of courthouses and other public buildings during the Christmas season or Christmas programs in public schools. In 2004 and 2005, the ACLU also sought to remove displays of the Ten Commandments from courthouses and public parks.
Because of its position on separation of church and state, and school prayers in particular, the American Civil Liberties Union has been attacked by religious conservatives as ‘‘Godless’’ and ‘‘antireligion.’’ The group has responded by arguing that the free exercise of religion clause of the First Amendment protects religious expression. In addition to its support for the Jehovah’s Witnesses in the 1930s and 1940s, the ACLU in the 1990s defended the right of Native Americans to use peyote, a drug that is generally illegal, in religious ceremonies. Together with many religious organizations, the ACLU supported the 1993 Religious Freedom Restoration Act designed to overturn an unfavorable Supreme Court ruling.
During World War II the ACLU defended the rights of nearly 120,000 Japanese Americans who had been evacuated from the West Coast of the United States and interned in concentration camps. Because of popular support for the war effort, the ACLU was the only national organization to provide significant support for the Japanese Americans, representing them in the major cases that reached the Supreme Court. The Court upheld the government’s actions in Hirabayashi v. United States, 320 U.S. 81 (1943), and Korematsu v. United States, 323 U.S. 214 (1944), but public opinion and subsequent court cases have supported the ACLU argument that the treatment of the Japanese Americans was a gross violation of civil liberties.
The most divisive internal controversy in ACLU history occurred in 1940 when the Board of Directors adopted a policy barring individuals who belonged to totalitarian organizations from positions of leadership in the ACLU. It then expelled Elizabeth Gurley Flynn from the Board. Many dissident ACLU members accused the organization of imposing the same kind of political test that it had always opposed. The controversy simmered for many years. Eventually, in 1976, the ACLU Board, led by a new generation of civil libertarians, reinstated Flynn posthumously to the Board.
During the cold war period of the late 1940s and 1950s, the ACLU opposed many anticommunist measures as violations of freedom of belief and association. It challenged the Federal Loyalty Program created in 1947 because it barred people from federal employment simply because they had once belonged to an organization alleged to be subversive. It also called for abolition of the House Un-American Activities Committee (HUAC) because it investigated people’s beliefs and associations. The ACLU opposed the 1940 Smith Act, which outlawed advocating the overthrow of the government. At the state level, ACLU affiliates opposed loyalty oaths for teachers and legislative investigations of people’s beliefs and associations.
On civil rights issues, the ACLU worked closely with the NAACP from 1920 onward. In the 1920s, the ACLU called on local authorities to prevent Ku Klux Klan-led violence against African Americans, and in the 1930s joined the unsuccessful campaign for a federal law making Lynching a crime. The ACLU was active in the Scottsboro case in the 1930s, which involved eight young African-American men accused of raping a white woman in Alabama. This was the first civil rights case to attract national attention. The ACLU handled two Supreme Court cases that led to landmark rulings on criminal procedure (Powell v. Alabama, 287 U.S. 45, 1932; Patterson v. Alabama, 1935). The organization also filed an amicus brief in the landmark case of Brown v. Board of Education, 347 U.S. 483 (1954), declaring racially segregated public schools unconstitutional. Beginning in the 1970s, the ACLU supported Affirmative Action programs in employment.
In the 1960s and 1970s, the American Civil Liberties Union’s agenda expanded enormously to include new areas of civil liberties, including women’s rights, prisoners’ rights, children’s rights, the right to abortion, the rights of lesbian and gay people, and many others. This development generated considerable controversy. Many people argued that the Constitution did not guarantee rights in these areas. Some prominent ACLU members resigned from the organization over these issues, arguing that it should adhere to its traditional role of defending First Amendment rights. In general, however, the ACLU was very successful in persuading the courts to adopt its interpretation of the Constitution. The single most important case in this regard was the 1973 decision in Roe v. Wade, 410 U.S. 113 (1973), holding that the constitutional right to privacy guaranteed women a right to an abortion.
The ACLU has had a major impact on the American criminal justice system. Its briefs were extremely influential in the Supreme Court cases of Mapp v. Ohio, 367 U.S. 643 (1961), and Miranda v. Arizona, 384 U.S. 436 (1966), protecting the rights of criminal suspects. The group has also supported the creation of independent agencies to review citizen complaints against police officers. ACLU attorneys brought the first prisoners’ rights cases in the 1960s and in the 1970s; it created the National Prison Project, which challenged the constitutionality of prison conditions in virtually every state in the country.
The Vietnam War and the Watergate scandal led the ACLU to devote more effort to civil liberties issues related to war and national security. The organization and its affiliates brought several unsuccessful cases seeking to have the courts declare the Vietnam War unconstitutional. During the Watergate scandal, the ACLU was one of the first national organizations to call for the impeachment of President Richard Nixon because of his abuse of presidential power.
In one of the most controversial First Amendment cases in its history, the ACLU in 1977 defended the right of a small American Nazi group to hold a demonstration in the heavily Jewish community of Skokie, Illinois. The organization was heavily criticized for defending the rights of a group associated with the Holocaust and it lost many members. The ACLU replied to critics with its traditional view that restrictions on speech based on the content of the message were impermissible and that the First Amendment guarantees ‘‘freedom for the thought we hate.’’ The federal courts eventually upheld the ACLU’s position and affirmed the right of the Nazi group to hold a demonstration in Skokie.
The ACLU took up the issue of abortion rights in the 1960s and filed an amicus brief in the landmark case of Roe v. Wade (1973), which established a constitutional right to an abortion. In the 1970s, the ACLU created its Reproductive Rights Project, which fought to defend the Roe decision and worked on other related reproductive rights issues. The ACLU also created a Women’s Rights Project in the early 1970s. Under the leadership of Ruth Bader Ginsburg, the projectwon the first important cases on women’s rights in the Supreme Court, beginning with Reed v. Reed (1971).
In the 1970s, the ACLU began to place more emphasis on legislation as the Supreme Court became less sympathetic to civil liberties. Originally staffed by only one person, by 2005 the ACLU Washington office had a staff of over twelve full-time lobbyists. In addition, American Civil Liberties Union affiliates lobby in state legislatures and several affiliates employ full-time lobbyists. In the 1980s, the ACLU began to strengthen its public education program, creating a separate Public Education Department in the national office. This development reflected the belief that public opinion was increasingly hostile or indifferent to civil liberties issues.
Two former leaders of the ACLU have been appointed associate justices of the U.S. Supreme Court. Felix Frankfurter, who was among the original founders of the ACLU in 1920, was appointed to the Court in 1939 and served until 1962. Ruth Bader Ginsburg was the first director of the ACLU Women’s Rights Project in the early 1970s. In that capacity she argued and won a series of landmark women’s rights cases before the Court. She was appointed to the Court in 1993.
The terrorist attacks on the United States on September 11, 2001, had a dramatic effect on civil liberties. Many Americans felt that it was necessary to restrict individual liberties in order to protect against terrorism. Congress quickly passed the PATRIOT Act, which included many provisions the ACLU regarded as threats to civil liberties. Most important, the law authorized the federal government to conduct searches without notifying the person whose home or office was to be searched (so-called ‘‘sneak and peak’’ search warrants). The ACLU also protested interviews with Arab Americans by the Federal Bureau of Investigation, charging that the practice represented discriminatory profiling on the basis of national origins. In challenging aspects of the war on terrorism, the ACLU enjoyed significant public support. Immediately after the terrorist attacks of September 11, 2001, it developed a working coalition with conservative groups and leaders who were also concerned about expanded government powers. The membership of the American Civil Liberties Union grew by 30 percent between late 2001 and mid-2005.
The ACLU is a national organization with about five hundred thousand members. It maintains a national office in New York City, a legislative office in Washington, D.C., and staffed affiliate offices in all fifty states. The work of the American Civil Liberties Union is financed by members’ dues, tax-deductible contributions, and grants to support specific projects. Grants from private foundations and donors support a series of special projects related to specific civil liberties issues. These include the Voting Rights Project, with an office in Atlanta, Georgia, the Reproductive Rights Project, the Women’s Rights Project, and others.
References and Further Reading
- Cottrell, Robert C. Roger Nash Baldwin and the American Civil Liberties Union. New York: Columbia University Press, 2000
- Larson, Edward J. Summer for the Gods: The Scopes Trial and America’s Continuing Debate over Science and Religion. New York: Basic Books, 1997
- Murphy, Paul L. World War I and the Origin of Civil Liberties in the United States. New York: Norton, 1979
- Walker, Samuel. The American Civil Liberties Union: An Annotated Bibliography. New York: Garland, 1992
- ———. In Defense of American Liberty: A History of the ACLU, 2nd ed. Carbondale: Southern Illinois University Press, 1999.