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THE
REVIEW OF
COMMUNICATION The ACLU as Guardian of LibertyFranklyn S. HaimanSamuel Walker. In Defense of American
Liberties: A History of the ACLU. 2d ed. Carbondale, IL: Southern
Illinois University Press, 1999. xxi +479 pages. $24.95 (paper). It is surprising that the American Civil Liberties Union, which has played such an influential and controversial role in our nation since the organization’s founding in 1920, has for most of that time been the subject of so little attention from historical scholars. Although the first years of the ACLU were chronicled in a limited way in the personal memoirs of two of its early leaders (Nelles, 1940; Milner, 1954) and tangentially in two books by historian Paul L. Murphy (1972, 1979), the first extensive history was Charles Lam Markmann’s The Noblest Cry: A History of the American Civil Liberties Union (1965), which did not appear until the organization was already forty-five years old and it still left much to be desired. Although it was a carefully researched and weighty volume that reported in thorough detail the substantive work of the ACLU, it had two major weaknesses. The first was that despite the cooperation of ACLU lay leaders and staff, who provided the author with free access to office files and their personal memories, the book focused almost entirely on the external activities of the organization -- legal, lobbying, and educational -- to the exclusion of crucial internal political and structural struggles that affected its public policies and shaped its development. There is but one brief paragraph alluding to the expulsion of Elizabeth Gurley Flynn from the national Board of Directors because of her Communist Party affiliation; another reference without elaboration to the split between the national office and the ACLU of Northern California over the internment of the Japanese Americans; not a word about the political schism within the Chicago affiliate that led to its break from the national organization and revival under different leadership; and nothing at all about the profound transformation of the organization in the 1950s and 1960s from a loose federation of largely autonomous big-city chapters with a small East Coast-based national Board of Directors to an integrated organization with affiliates in every state and an expanded national Board with representation from the entire country. The second weakness was that the author’s admiration for the ACLU appears to be have been rooted in a disturbing elitism that goes well beyond a justified antipathy toward the kind of unbridled majoritarianism that is a threat to civil liberties. It suggests a disdain for the “masses” that borders on an aversion to democracy itself. The ACLU is thus portrayed as a saving remnant of intelligent guardians of liberty (perhaps an accurate description) who implicitly share (inaccurately, I believe) the author’s distrust of democratic processes. In the decade following the publication of Markmann’s work two other books appeared that dealt with limited aspects of ACLU history. The Trial of Elizabeth Gurley Flynn by the American Civil Liberties Union (Lamont, 1968) was a detailed report of that wrenching episode, including a transcript of the Board meeting that resulted in her expulsion by the chairman’s breaking of a 9-9 tie vote. The author, multi-millionaire Corliss Lamont, was one of her supporters on the Board who thereafter resigned and founded the competing Emergency Civil Liberties Committee. The other volume, Roger Baldwin. Founder of the American Civil Liberties Union (Lamson, 1976), was a biography of Baldwin that necessarily included some references to ACLU activities. Another decade passed without any attention to ACLU history other than its own summary annual reports. Then two additional works appeared that were attacks on the ACLU rather than objective treatments. The less polemical of the two, Nazis in Skokie (Downs, 1985), dealt solely with the issue of racist speech and the neo-Nazi march in Skokie, expressing the author’s disagreements with the ACLU’s policy in that matter. The other, The Politics of the American Civil Liberties Union (Donohue, 1985), was written by a pseudo-scholar who has made a career of castigating the ACLU for its alleged far left leanings, and barrages his readers with distorted evidence and spurious arguments designed to support his allegation that the organization has not been the impartial, unwavering, and principled defender of the Bill of Rights it claims to be. It was not until the ACLU was celebrating its 70th anniversary that the first authoritative and exhaustive treatment of its history, In Defense of American Liberties (Walker, 1990) was published. Its author, Samuel Walker, Professor of Criminal Justice at the University of Nebraska in Omaha, had several advantages that Charles Lam Markmann had not enjoyed. Beyond the access to the leaders and staff that Markmann had also been given, Walker had been a member of the national Board for many years, seeing its workings at first hand, and was also able to benefit from the extensive ACLU archives at Princeton University’s Mudd Library, from the troubling revelations found in the FBI’s files on the ACLU which had been obtained by the organization in a Freedom of Information Act request, and from his entree to affiliate leaders and records across the country. Now, a decade later, Walker has published a second edition of this history (1999), adding the events of the last nine years to the years covered in the original edition. Despite his own involvement in the organization and his obvious enthusiasm for its mission (which he openly acknowledges in the Preface to both editions), he has admirably succeeded in fulfilling the promise of that Preface to write an objective and balanced history of the organization, warts and all. In the interest of full disclosure I should likewise acknowledge that I served for thirty-one of the ACLU’s eighty-one years on its national Board and as a result have been a friend and colleague of the author. Walker’s first edition, published by the Oxford University Press, received accolades for its thoroughness and even-handedness from reviewers for the New York Times (1990), Washington Post (1990), and American Bar Association Journal (1990). The book begins by tracing the origins of the ACLU in its predecessor organizations, the American Union Against Militarism and the Civil Liberties Bureau, that came into existence from 1914 to 1919 to do battle with conscription and the repressions of free speech associated with World War I. The ACLU itself was born in 1920 under the leadership of Roger Baldwin and such other charter members as Jane Addams, Felix Frankfurter, Helen Keller, Harold Laski, A. J. Muste, Jeanette Rankin, Norman Thomas, and Oswald Garrison Villard. The years of 1920-1932, described in Part 2 of Walker’s history, found the organization focusing heavily on the rights of labor to organize and picket; on freedom of speech for Communists, the Ku Klux Klan, and even Henry Ford; and, most prominently, on the ACLU-instigated Scopes trial in Dayton, Tennessee, bringing ACLU cooperating attorney Clarence Darrow into confrontation with William Jennings Bryan over the teaching of evolution in the public schools. Part 3 addresses the organization’s “Advances and Retreats” from 1931 to 1945. These included a victory over Mayor Frank “I Am The Law” Hague of Jersey City, New Jersey, that established the principle of an open public forum (Hague v. C.I.O., 1939); a vindication of the rights of Jehovah’s Witnesses to refuse participation in public school flag salute rituals (West Virginia Board of Education v. Barnette, 1943); and losing struggles against the internment of Japanese-Americans and the witch-hunting of the House Committee on UnAmerican Activities and of Senator Joseph McCarthy. The Cold War years of 1945-1954 are chronicled in Part 4, with the continuing struggle against legislative inquisitions, state and federal loyalty oaths, and prosecutions of Communist Party leaders for violations of the Smith Act that resulted in the upholding of their convictions by the Supreme Court (Dennis v. U.S., 1951) by a watering down of the “clear-and-present-danger” test that Justice Oliver Wendell Holmes had enunciated for the Court in 1919 (Schenck v. U.S.). Part 5, covering the period 1954-1964, is entitled “The Great Years” by Walker, for it was the era of the Warren court’s decisions that expanded the boundaries of freedom of expression, most notably by its landmark New York Times v. Sullivan decision (1964); reinforced the wall of separation between church and state, for example by invalidating a requirement of religious oaths as a qualification for public office (Torasco v. Watkins, 1961); brought an end to the “separate but equal” doctrine in public education (Brown v. Board of Education, 1954); and established the principle of “one man one vote” in the drawing of voting district boundaries (Baker v. Carr, 1962). 1964-1974, the subject of Part 6, was the era of the civil rights movement; the anti-Vietnam War protests; Watergate, Nixon’s enemies list, near impeachment and ensuing resignation; and the end of legal prohibitions on abortions -- all matters in which the ACLU was deeply involved, often providing critically important legal and lobbying leadership or assistance. “Holding the Line” is the label given to Part 7, for the years 1975-1990 saw the unpopular but successful legal battle to permit neo-Nazis to march in Skokie; the equally successful fight to keep Appellate Court Judge Robert Bork from ascending to the U.S. Supreme Court; the warding off of attempts to undermine or reverse the Roe v. Wade abortion decision (1973); and defeating the repeated efforts in Congress to amend the First Amendment in order to permit punishment for so-called flag desecration. The second edition of In Defense of American Liberties is for the most part a reprint of the first edition in paperback by a different publisher, preserving the original preface, page numbers, and index, but adding a new 21-page introduction that summarizes the ACLU’s activities during the 1990s. Some of these were its perennial struggles to protect freedom of expression and non-discrimination, but often in new contexts. Thus the organization was called upon to deal with hate speech codes on college campuses, verbal sexual harassment in the workplace, campaign finance reform proposals that would reverse the ACLU’s victory in Buckley v. Valeo (1976), gays and lesbians in the military and in domestic partner relationships, racial profiling by law enforcement officials on the streets and highways, and alleged indecency on the internet. The last of these resulted in what is perhaps the most visible and stunning legal victory the ACLU has ever enjoyed, winning a unanimous decision of the U.S. Supreme Court striking down the federal Communication Decency Act (Reno v. ACLU, 1997). The hate speech, workplace harassment, and campaign finance issues led to intense debates within the organization, pitting First Amendment free speech concerns against Fourteenth Amendment equality claims. Although an uneasy consensus was finally achieved on the first two of these matters, the majority’s continuing opposition to limits on campaign spending and contributions has failed to win the support of a substantial and vocal minority who view the majority’s alternative of public financing for all candidates who qualify for the ballot as either unrealistic or inadequate. In a surprising departure from Walker’s practice throughout his first edition of frankly exposing the policy rifts that have occurred within the organization, he fails in the new Introduction to the second edition to report the public statement issued jointly by the ex-president and all of the living former executive directors and legal directors of the ACLU, objecting to the organization’s position on campaign finance reform. Perhaps his book had already gone to press prior to that event or he was constrained by space limitations to condense a decade of activity to a only twenty-one pages. He does, however, report two events of the 1990s that have been a source of unanimous satisfaction within the organization -- the election and ensuing remarkable public visibility of the ACLU’s first woman president, Nadine Strossen, and the appointment of former Board member, General Counsel, and founder of the ACLU’s Women’s Rights Project, Ruth Bader Ginsburg, to the United States Supreme Court. From male Felix Frankfurter, the only previous ACLU leader to reach the Supreme Court, who then voted against the ACLU’s positions more often than not, to female Ruth Bader Ginsburg, who has been voting in support of the ACLU more often than not, the American Civil Liberties Union has indeed come a long way in its eighty-one years. Thanks to the diligent scholarship of Samuel Walker that record will not be forgotten. Franklyn S. Haiman is John Evans Professor Emeritus
of Communication Studies, Northwestern University. References
American Bar Association Journal. (January, 1990). Baker v. Carr. (1962). 369 U.S. 1962. Brown v. Board of Education. (1954). 347 U.S. 483. Buckley v. Valeo. (1976). 424 U.S. 1. Dennis v. U.S. (1951). 341 U.S. 494 Donohue, W. (1985). The Politics of the American Civil Liberties Union. New Brunswick, NJ: Transaction Books. Downs, D. (1985) Nazis in Skokie. South Bend, IN: University of Notre Dame Press. Hague v. C.I.O. (1939). 307 U.S. 496. Lamont, C. (1968). The Trial of Elizabeth Gurley Flynn by the American Civil Liberties Union. New York: Horizon Press. Lamson, P. (1976). Roger Baldwin. Founder of the American Civil Liberties Union. Boston: Houghton Mifflin. Milner, L. (1954). Education of an American Liberal: An Autobiography. New York: Horizon Press. Murphy, P. (1972). The Meaning of Freedom of Speech: First Amendment Freedoms from Wilson to FDR. Westport, CT: Greenwood Press. Murphy, P. (1979). World War I and the Origins of Civil Liberties in the United States. New York: Norton. Nelles, W. (1940). A Liberal in Wartime: The Education of Albert DeSilver. New York: Norton. New York Times. (January 14, 1990). New York Times v. Sullivan. (1964). 376 U.S. 254. Reno v. ACLU. (1997). 521 U.S. 844. Roe v. Wade. (1973). 410 U.S. 113. Schenck v. U.S. (1919). 249 U.S. 47. Torasco v. Watkins. (1961). 367 U.S. 488. Walker, S. (1990). In Defense of American Liberties. New York: Oxford University Press. Walker, S. (1999). In Defense of American Liberties, 2d ed. Carbondale, IL: Southern Illinois University Press. Washington Post. (January 28, 1990). West Virginia Board of Education v. Barnette. (1943). 319 U.S. 624.
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