Civil Liberties The National Newsletter of the ACLU #380, Spring 1994 (c) 1994 American Ci
Civil Liberties The National Newsletter of the ACLU
#380, Spring 1994 (c) 1994 American Civil Liberties Union
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Civil Liberties // The National Newsletter of the ACLU
Copyright (c) 1994 American Civil Liberties Union
Issue #380, Spring/Summer 1994
*1 A Civil Liberties Ride on the Information Superhighway
by Barry Steinhardt
*2 The Religious Right Wants America
by John Swomley
*3 First Amendment Shock: An Unusual Civil Liberties Story
by Jean Carey Bond
*4 Speaking of Reform -- Remember Criminal Justice
by Loren Siegel
*5 Personal Autonomy: A Right More Vulnerable Than Ever
by Loren Siegel
*6 The FairTest Case: Nothing Special, Just Equality
by Marcia Thurmond
*7 ACLU Membership Lists
*8 Dueling Pens: A Friendly Exchange About Unfriendly Words
by Franklyn S. Haiman and Stanley Fish
*9 The President's Word by Nadine Strossen
*10 Letters to the Editor: Pornography and Responsibility
*11 PubEd Focus: Reluctant "Radical" Is Making History & ACLU Takes On
Religious Right by Phil Gutis and Loren Siegel
*12 Civil Liberties International: ACLU and HRW Report on U.S. Rights
Record by Paul Hoffman
*13 In The Congress: Not the Worst, But Hardly The Best, Of Times
by Laura Murphy Lee
*14 In The Courts: We Won! by Steven R. Shapiro
*15 Affiliate Notes by Lynn Decker
*16 Publications: Is Freedom A Sometime Thing? by Burt Neuborne
Hate Speech: The History of an American Controversy by
*17 Taking Liberties, by Executive Director Ira Glasser
If you prefer not to browse Civil Liberties online, each issue will soon
be installed at our ftp site. Sample path: /aclu/newsletter/379
The American Civil Liberties Union is a nationwide, nonpartisan organization
dedicated to preserving and defending the principles set forth in the Bill of
President: Nadine Strossen
Executive Director: Ira Glasser
CIVIL LIBERTIES is also available in paper (ISSN 0009-790X), and is the
membership newsletter of the ACLU, published by the Department of Public
*1 A CIVIL LIBERTIES RIDE ON THE INFORMATION SUPERHIGHWAY
By Barry Steinhardt
By some accounts, we are on the verge of a communications
revolution that rivals Gutenberg's invention of the printing press.
And notwithstanding the hype, the information superhighway --
formal name, the National Information Infrastructure -- is on the
way. The grandest vision of same is a vast network of intersecting
technologies, with near limitless voice, data and video
communications available to everyone. The promise, maybe even the
prototype, is expressed today in Internet, a network in use by more
than 20 million people worldwide. Internet allows millions to both
provide and consume almost unlimited amounts of largely uncensored
The power of networked speech and its capacity to evade the
censor are just now becoming clear. Consider, for example, the
public's response to a gag order slapped on the press by an Ontario
judge in a murder case in Canada. Press coverage having been
blocked, electronic bulletin board and Internet "publishers" began
posting and cross-posting updates on the trial, foiling any effort
by the Mounties to track their reports through the electronic
How, then, should civil libertarians approach the
superhighway's construction? Given the billions of dollars at
stake, it is not surprising that public attention has focused thus
far on the competition between telephone, cable and wireless
providers (the "which wire" or "wave" debate) or the on-again off-
again mergers of communication giants like Bell Atlantic and TCI.
The ACLU faces these questions: Will the information
superhighway fulfill its promise of availability to all, and will
constitutional principles undergird its structure? At stake are
three basic civil liberties values: free speech, including access
to information; privacy, and equality. Our task is to ensure that
all three inform the coming communications revolution.
Properly built, the information superhighway will be the
public forum of the 21st century, a "virtual village green" to
which anyone can go to speak or listen. But no guarantee exists,
notes Mitchell Kapor, founder of the Lotus Corporation and the
Electronic Frontier Foundation, that the highway will reflect the
"Jeffersonian vision" of free and robust debate. Only a highway
that accommodates two-way traffic, where it is as easy to offer
information as to receive it, would meet that vision. An eight-
lane road that delivers more than 500 channels worth of movies-on-
demand, games, gambling and junk into the home, while consumers
have only a narrow cobblestone path on which to send their messages
out would undercut the goal of diverse speech.
The free speech principle demands an electronic public forum,
in which all are free to speak and government regulation is limited
to the technical means necessary to ensure equal, non-
discriminatory access. Access providers should be common carriers
modeled after the switched public telephone system. "Electronic
publishers" should not face censorship or discriminatory rates.
Sufficient "bandwidth" -- capacity -- will be required to transmit
multimedia communications that emanate from a vast universe of
sources. And bandwidth's "architecture" should be "open" so that
access providers can attach their hardware and software to a
carrier's terminal. To protect carriers from legal liabilities
that might encourage them to censor, content providers should be
exclusively liable for illegal content.
Since access providers like the regional Bell companies also
want to become information providers, additional safeguards will be
needed to ensure adequate capacity, fairness and non-discrimination
for those other providers who want to join the network.
Universal Service and Equal Access
The infosuperhighway may usher in a brave new world for many,
but unless policy makers are on the case, it will be one of the few
highways in the nation that does not cut through low income
neighborhoods. The guarantee of "universal service" in the Federal
Communications Act of 1934 has meant access to plain old telephone
service -- "POTS." In this high-tech era, meeting the information
needs of the entire population, including persons with
disabilities, the aging and the poor, calls for a new definition of
basic digital service. Otherwise, a new society of information
haves and have nots will emerge, further deepening social
New methods of funding must be found, such as requiring
information carriers to share the costs of providing universal
service. At the same time, special emphasis needs to be placed on
the teaching of electronic communications literacy, and on
guarantees that the superhighway will extend into the nation's
classrooms, libraries, medical facilities and community centers.
The full potential of information technology will never be
realized if people are afraid to use it. Thus, protecting the
confidentiality of speech and information is a must. The
encryption of data, for example, is an increasingly common and
highly protective armor against snooping. Too protective, in fact,
for the Clinton Administration, which has advocated installing a
special window in telecommunications equipment through which the
government alone, ostensibly for law enforcement and national
security reasons, could peer into private communications. (See
The Administration has also proposed a "Digital Telephone"
that would establish the federal government as the final arbiter of
telecommunications progress, giving it a veritable veto over any
new telephone technologies that did not accommodate governmental
New laws are needed that clearly spell out protections for the
privacy of digital information. More protective devices -- like
encryption -- need to be developed. Privately held information
also needs protection, whether subscriber information or personal
data about people's medical, financial and personal lives.
Barry Steinhardt is Associate Director of the ACLU
Sidebar: THE CLIPPER CHIP
In April 1993, the Clinton Administration proposed the
production of a new computer chip encoded with a sophisticated
encryption program to protect the security of voice
communications. Since the design's purpose is to provide the
government with a decoding "key" with which to gain access to any
encrypted communications, the proposal drew an uproar from
computer and communications companies, and privacy advocates.
As the "information superhighway" materializes, concerns
about the privacy of data, voices and images traversing the
highway have deepened. Private industry, having embraced
encryption technology as an important means for protecting speech
and privacy, has developed various programs that allow voice or
data to be sent over phone lines in a form only the intended
recipient can decipher.
The new chip, dubbed the Clipper Chip, differs from current
encryption hardware and software in two important ways. First,
the government would hold two keys ennabling it to unscramble
intercepted communications, a feature that the Administration
claims is necessary for law enforcement and national security
purposes. Those keys -- both would be needed to unlock the code
-- would be held "in escrow" by government agencies or agents, to
be obtained only with proper authorization.
Second, although the Administration insists that Clipper
would be voluntary, the government, through procurement policies
and export controls, would put tremendous pressure on
manufacturers and marketers to use it exclusively. Clearly, the
proposal's intent is to make Clipper the only available system
for encrypting private communications.
In testimony last June before the National Institute of
Standards and Technology's Computer System Security and Privacy
Advisory Board, the undersigned pointed out that the proposed
chip raises serious constitutional concerns, and that a case has
not been made that any compelling government need for it exists.
We questioned: the security of the so-called "escrow" system;
government coercion to force acceptance; the constitutionality of
current export controls on encryption; the proposal's failure to
distinguish between seizure of encrypted conversations and of
encrypted documents, and the constitutionality of requiring
release of the key to government hands in advance of probable
cause. Finally, we urged abandonment of the plan, absent a valid
rationale for its implementation.
The ACLU, in a working group with other civil liberties
organizations and industry representatives, has met with senior
Administration officials on the Clipper proposal. In response to
the concerns of this working group and the Advisory Board, the
White House has agreed to both delay full implementation of the
plan and to hold a series of meetings, through the fall of 1994,
to address questions and explore alternatives.
-- Kate Martin and Janlori Goldman
The writers are, respectively, the director of the ACLU's Center
for National Security Studies and former director of the ACLU's
Privacy and Technology Project.
*2 THE RELIGIOUS RIGHT WANTS AMERICA
by John M. Swomley
Pat Robertson and his "Christian Coalition" have declared war on a
large array of organizations deemed by them to be "irreligious" or
"liberal." The list of the embattled, which the ACLU heads, includes the
American Jewish Congress, People for the American Way, the National
Organization for Women and several churches.
Many people, noting the Coalition's agenda against homosexuality,
abortion, separation of church and state, and women's rights, regard
Robertson-and-company as a disruptive element on the American political
scene, but one that is temporary and ultimately bound to fail. That
interpretation is simplistic.
The Christian Coalition is the largest of many right wing religious
groups whose members want to reorder United States political affairs
under the authority of a "Christian" government. Their overarching
philosophy, alternately called "Christian Reconstruction" and "Dominion
Theology," was first articulated in 1973 by Rousas John Rushdoony in
Institutes of Biblical Law. That philosophy is nurtured by the Coalition
on Revival (COR), a secretive inner circle whose steering committee
includes most of the nation's right wing Christian leaders. This hard
core, which promotes the unifying ideology of the Christian right, is led
by Dr. Jay Grimstead.
Strongly influenced by COR and its credo, Pat Robertson renamed his
CBN (for Christian Broadcasting Network) University, Regent University,
explaining that "a regent is one who governs in the absence of a
sovereign." Someday, he said, "we will rule and reign along with our
sovereign, Jesus Christ." Toward that day, Regent is training graduate
students in education, religion, law and communications to build
theological and political alliances of ready-to-rule folk. Robertson's
more immediate goal, control of the Republican Party, is seen as a
necessary step in pursuit of the ultimate prize: a "Christian" United
States -- meaning his brand of Christianity.
Robertson's writings and speeches reflect essentially theocratic
models. In his 1991 book, The New World Order, he writes:
"The founders of America at Plymouth Rock and in the Massachusetts
Colony felt that they were organizing a society based on the Ten
Commandments and the Sermon on the Mount .... They tried their best to
model their institutions of governmental order after the Bible."
Of course, the former clergyman romanticizes here. The early American
leaders to whom he refers were people who burned "witches," hanged
Quakers, slaughtered Native Americans, held Africans in bondage and taxed
the populace to support religion.
Summarizing the colonial period, Robertson writes,
"... for almost two hundred years prior to our Constitution, all of
the leadership of this nation had been steeped with biblical principles of
the Old and New Testaments. Their new order was a nation founded squarely
on concepts of the nature of God, the nature of man, the role of the
family and the moral order as established by the God of Jacob."
What Robertson is extolling, among other things, is clerical control
of politics. In colonial Massachusetts and Connecticut, reports William
Warren Sweet in The Story of Religions in America, preachers' political
influence was such that no one could be admitted to church membership
without their consent, and voting in those colonies "was limited to
church members." Sweet also describes a morals squad: "The tithing man ...
was a township official who assisted the constable in watching over the
morals of the community. There was one such official for every ten
families, who ... was on the lookout for Sabbath breaking, tippling,
gaming, and idleness."
Pat Robertson claims that "...the Supreme Court of the supposedly
Christian United States guaranteed the moral collapse of this nation when
it forbade children in the public schools to pray to the god of Jacob, to
learn of His moral law or even to view in their classrooms the heart of
the law, the Ten Commandments." Actually, the Supreme Court has never
banned private prayer if performed silently in class or in the cafeteria
over lunch. In 1962, in Engle v. Vitale, the court banned
school-sponsored prayer; and in 1963, in the Pennsylvania case Abington
Township v. Schempp, it banned Bible reading as worship. The Court has
permitted objectively taught courses on the Bible as literature, on the
philosophy or sociology of religion, and on comparative religion. It has
also allowed religious clubs to meet after instructional hours if other
extra-curricular clubs are permitted to meet. Moreover, many states did
not even have school-sponsored prayers or Bible readings prior to 1962.
The Christian Coalition has become a force in American politics,
providing the margin for Jesse Helms' re-election. Its Christian
Broadcasting Network has 1,485 radio stations and 336 television stations
(numbers as of 1989), with Robertson's "700 Club" -- annual income, about
$140 million -- airing daily on TV. In close touch with Robertson are
other groups like James Dobson's Focus on the Family, which employs about
1,000 people, publishes eight periodicals and broadcasts on more than
1,500 radio stations.
Although the bulk of Robertson's support comes from fundamentalist
Protestants and Catholics, not all fundamentalists and evangelicals
support his politics or his theology. Thus, the ACLU, in coalition with
both religious and secular organizations, should strive to reach as many
people as possible with its message of church-state separation and other
civil liberties values.
John M. Swomley is secretary of the ACLU's national board and also chairs
the board's Church-State Committee.
*3 FIRST AMENDMENT SHOCK: AN UNUSUAL CIVIL LIBERTIES STORY
By Jean Carey Bond
"Monolithic the African American community is not," said Attorney
Anthony P. Griffin when Civil Liberties asked him what kinds of reactions,
among black people particularly, had greeted his legal representation of a
Ku Klux Klansman. Indeed, the range of those reactions reconfirmed, if
any reconfirmation was necessary, that the black community is just as
complex and has just as broad a spectrum of attitudes, beliefs and
myth-systems as do other communities in our diverse society.
The First Amendment on paper is one thing; the First Amendment in
action is quite another. When a person of unpopular viewpoints exercises
his or her rights of free speech and association, the result can be, as
Griffin puts it, "shocking." The defense of such a person can produce
shock as well -- said Griffin: "The combination of Klan, plus color, plus
a history of violence, plus the ability of race to dominate a discussion,
has created shock, cheers, bravos and boos!"
On the support side, the Black Heritage Committee of Galveston,
Texas, at a function held last August attended by nearly 800 persons, gave
Griffin its Citizen of the Year Award. In presenting the award, the
Committee cited his representation of the Klan, along with other work.
But hostility was also forthcoming: Immediately after the Houston
Chronicle reported his defense of Klansman Lowe, under a headline that
read "Black Lawyer Giving His All to the Klan," Griffin was invited to
appear on black radio stations in Chicago and Houston. Out of about 100
call-ins to the talk shows on which he was a guest, fewer than five
callers expressed support.
The Texas State Conference of the National Association for the
Advancement of Colored People (NAACP) was so incensed that it removed
Griffin from his volunteer post as general counsel, claiming that his
representation of both the NAACP's and the Klan's interests constituted a
conflict of interest. At the same time, at least five NAACP chapters in
the state have continued to call Griffin, seeking legal advice.
In addition to dropping him as general counsel, seven members and
officers of the Texas State Conference wrote to NAACP Executive Director
Dr. Benjamin Chavis asking that Griffin's NAACP membership "be immediately
suspended ... until after a thorough investigation of his actions in
defense of the Ku Klux Klan in court in Austin, Texas on September 29,
1993 in the Texas commission on Human Rights vs. Michael Lowe, Grand
Dragon of the Ku Klux Klan." To date, Griffin has not heard from the
national office regarding this request.
In contrast to the NAACP, the Congress of Racial Equality (CORE) has
offered Griffin membership. While some lawyers at the Texas NAACP
gathering where Griffin was removed as general counsel argued that the
Constitution does not apply to the Klan, others questioned those
attorneys' memory and sense of history. And especially heartening for
Griffin is the strong support he has received from persons responsible for
training African American lawyers of the future, among them the dean of
Howard University Law School.
As for the black people he encounters day to day, Griffin said
"Walking through airports, walking down the streets,
shopping in the stores, regular black folks, not carrying
any notion or burden of the mantle of leadership, stop
me, smile and extend a hand and express verbal support
.... Maybe this is because the First Amendment affects
those who are poor, disenfranchised and powerless to a
greater extent than those of us who are more fortunate,
comfortable and whose everyday activities are not
threatened by governmental restraint."
Finally, Griffin said that whatever words his defense of a Klansman's
rights has brought forth from African Americans -- whether disdain, the
feeling that he has displayed courage or "that I have lost my mind" -- all
of the responses are consistent with the intent of those who framed the
First Amendment. "The First Amendment," he said, "makes us laugh, scream,
cry, scratch our heads at the wonderful contradictions -- it crosses
color, class and racial lines."
As the ACLU knows only too well, the work of any person involved in
defending the Bill of Rights has a good chance of becoming the center of
controversy, no matter what his or her ethnic or racial identity. So be
it. Without our noticing it or expecting it, freedoms hard won can slip
away unless we continue the fight for their preservation on every front.
Photo Caption: He heard duty call
Anthony P. Griffin, in cooperation with the ACLU of Texas, is
defending Michael Lowe, Grand Dragon of the Texas Knights of the Ku Klux
Klan, against a lawsuit brought by the Texas Commission on Human Rights
to force public disclosure of the Klan's membership lists and financial
records. Griffin and the ACLU argue that since the Klan is a private
group, its records are protected from disclosure under a 1958 Supreme
Court decision that barred the state of Alabama's access to the
membership files of the NAACP. Though vilified for representing the Klan
by some, including the Texas NAACP, Griffin has also received broad
support from individuals of all colors, as well as from civil liberties
and civil rights groups.
*4 SPEAKING OF REFORM -- REMEMBER CRIMINAL JUSTICE
By Loren Siegel
Much talk of reforming the health care system is in the air,
but the United States criminal justice system is just as much in
need of mending. It is just as ineffective, wasteful, cruel and
discriminatory, and the social and political consequences of its
failures are just as profound. However, no serious national
debate on what to do about that problem is taking place.
The oversight is especially troubling given that the
policies that have been in place for the past 20 years, with
their almost exclusive reliance on arrest, harsh sentencing and
incarceration, have yielded so little. Do you, reader, feel
safer knowing that more than one million Americans are behind
bars? Probably not. Public fears persist because although the
crime rate has dipped by one or two points in the last couple of
years, it is still unacceptably high and far exceeds that of
other industrialized nations. The Federal Bureau of Justice
Statistics estimated that in 1992, violent crime visited 23
percent of U.S. households.
The intractability of violent crime has placed enormous
pressures on civil liberties, creating a political climate in
which it is easy for politicians and others with anti-civil
liberties agendas to tell voters that they must choose between
public safety and constitutional rights. But that is a false
dichotomy. Real security does not have to come at the expense of
our rights. Claims that it does ignore the poverty, lack of
opportunity and social, political and economic marginalization
that are the real causes of most violent crime.
President Clinton's performance in the area of criminal
justice policy has been consistently disappointing. He has
supported rights-threatening practices, including the most
egregious of them all -- the death penalty -- and distanced
himself from those of his own political appointees who question
the failed policies of the past. For example, when Surgeon
General Jocelyn Elders, in a moment of refreshing candor,
suggested that drug legalization be "studied" as a way to quell
drug-related violence, the President immediately dismissed the
possibility of even discussing the issue.
More recently, the President has embraced two proposals that
deeply offend fundamental constitutional principles. In his
State of the Union address, he touted "Three Strikes, You're Out"
laws, now pending in Congress and numerous state legislatures.
And in April, he welcomed a proposal that public housing leases
include "consent" clauses whereby tenants would agree to allow
police searches of their homes, unannounced and without warrants.
Three Strikes, You're Out
"Three Strikes" puts a new spin on the old habitual offender
laws by imposing a mandatory life sentence without parole after
three "violent" felonies. (A recently enacted California law
provides that the third felony, after two violent ones, can be
any felony at all. Meanwhile, Pennsylvania proposes to treat
prostitution and burglary as "strikes.") Although the sponsors
of "Three Strikes" claim their purpose is to immobilize
society's most dangerous felons, in practice these laws cast a
far wider net. For example, the third "three-time loser"
sentenced in Washington State stole $151 from a store while
pretending to have gun in his pocket. He hurt no one in that or
either of his two prior felonies.
By requiring judges to impose life sentences on people
convicted of relatively minor property crimes, "Three Strikes"
violates both the ancient rule of proportionality -- "let the
penalty fit the crime" -- and the Eighth Amendment: "Excessive
bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted...."
Moreover, 20 years' experience with the no-deterrence result
of harsh sentencing laws should tell us that "Three Strikes" may
satisfy the public's hunger for retribution, but it will have
zero impact on the crime rate. Most violent crimes are not
premeditated; they are committed in anger, in passion, or under
the influence of alcohol. Even the prospect of a life behind
bars will not stop impulsive actors who, anyway, fully expect to
"Three Strikes" will create a huge, geriatric prison
population at huge taxpayer cost without a significant payoff.
Why? Because most crimes are committed by men between ages 15
and 24. Of all serious crimes, only one percent is committed by
people over the age of 60 -- meaning that age is a powerful crime
reducer. Age... and maybe for young men, hope?
"Consent Searches" of Public Housing Apartments
Faced with rampant violence in public housing developments,
some housing authorities have resorted to unconstitutional
measures to assuage tenants' demands for enhanced security.
Following an upsurge in gang warfare at Chicago's Robert Taylor
Homes, the housing authority there instituted warrantless
"weapons sweeps" of apartments. The Illinois Civil Liberties
Union immediately went to federal court and obtained an
injunction prohibiting the sweeps. The judge agreed that they
violated tenants' Fourth Amendment rights.
A week later, President Clinton announced that Attorney
General Janet Reno and Henry Cisneros, the Secretary of Housing
and Urban Development, had come up with a "constitutionally
effective way" to do the unconstitutional: Tenants and
prospective tenants could be asked to sign leases that include a
standing consent to have their apartments searched for drugs and
weapons. Read the President's lips: If you are poor and
dependent on the government for shelter, we will oblige but only
if you "voluntarily" waive the fundamental rights that everyone
else is guaranteed. Would you, reader, sign such a lease?
This alleged solution to armed violence in public housing is
particularly disturbing since constitutional policing strategies
that promise more effectiveness have not even been tried. After
observing security conditions at the Robert Taylor Homes, a
police veteran of New York City public housing, now a law
enforcement scholar and consultant, gave expert testimony for the
Illinois CLU that guards consistently failed to stop people who
set off metal detectors as they entered the lobbies. Random
searches of apartments, he testified, while entry to the
buildings is virtually unrestricted, would not be effective.
Instead, the housing authority should secure the lobbies and form
"vertical patrols"-- regular patrols through the common areas on
each floor of the high rise buildings -- to check for guns and
"Three Strikes, You're Out" laws and apartment sweeps may
sound good to a frustrated and desperate public, but they are
twice flawed: They are unconstitutional, and they will not work.
Loren Siegel is director of the Public Education Department of
*5 PERSONAL AUTONOMY: A RIGHT MORE VULNERABLE THAN EVER
By Loren Siegel
In the summer of 1989, a particularly ignominious
prosecutorial strategy made its debut at the trial of Jennifer
Johnson, a poverty stricken African American single mother from
rural Florida. Johnson became the first woman ever convicted of
delivering a controlled substance to a minor through her umbilical
Johnson's obstetrician had testified that at birth her baby
appeared normal in every respect. Yet Seminole County Judge O.H.
Eaton sentenced Johnson to one year's house arrest and 14 years'
closely supervised probation, including the proviso that if she
conceived again she would have to follow a court-approved prenatal
Two years prior to Johnson's ordeal, another legal drama had
unfolded in Washington, D.C. as a young woman lay dying of cancer
at the George Washington University Medical Center. Under
treatment since age 13, Angela Carder, at 28, had seemed to be
cured; so she had married and gotten pregnant. In her 26th week,
however, the cancer recurred and her doctors told her she had, at
most, a few months to live.
The hospital, without consulting the doctors, engaged an
attorney who sought a court order to deliver Carder's fetus by
caesarean section. A District of Columbia Superior Court judge
appeared at the hospital unannounced and held a six-hour bedside
hearing. Despite Carder's unequivocal testimony that she did not
want surgery, and the testimony of her oncologist that invasive
surgery would hasten her death, the judge ordered the caesarean
performed. The baby girl died almost immediately after delivery;
Carder died two days later.
What is shocking in each of these cases is that the government
stripped a woman, rendered powerless and vulnerable by
circumstance, of her dignity and right to personal autonomy.
The right to do what one will with one's body and mind is
clearly a hallmark of a free society, but the fact is that our
society has never fully recognized personal autonomy -- either
jurisprudentially or in everyday life. American jurists have
usually supported that right only in dissent. One famous example
is Supreme Court Justice Louis Brandeis' dissent of 1928, in
Olmstead v. US, a Prohibition-era case in which the majority upheld
the warrantless wiretapping of a suspected bootlegger's telephone.
Justice Brandeis wrote:
"The makers of our Constitution undertook to secure
conditions favorable to the pursuit of happiness. They
recognized the significance of man's spiritual nature, of
his feelings and his intellect.... They sought to protect
Americans in their beliefs, their thoughts, their
emotions and their sensations. They conferred, as
against the Government, the right to be let alone -- the
most comprehensive of rights and the right most valued by
civilized men [sic]."
The framers of the Constitution, though they cared deeply about
personal autonomy, did not explicitly protect it in the Bill of
Rights. And the Supreme Court, while recognizing it in some
narrowly defined spheres, has consistently refused to interpret the
Constitution as guaranteeing a general right of personal autonomy.
As a result, the development of a personal autonomy jurisprudence
has been extremely difficult.
Through the years, non-recognition of personal autonomy as a
fundamental right has enabled authoritarians in high places to
deny individuals the right to control their own bodies, and to
continue enforcing laws against victimless activities, such as
prostitution, drug use and gambling.
If personal autonomy is so fundamental, why has it remained
unfulfilled? In his essay, The Control of Conduct: Authority vs.
Autonomy, Dr. Thomas Szasz answers that autonomy is a formidable
"threat to authority .... [T]he person who controls himself, who is
his own master, has no need for an authority to be his master.
This then renders authority unemployed ... Autonomy is the death
knell of authority, and authority knows it." Uppity women who want
to control their reproductive capacities, and unabashed drug users
who want to control their own states of consciousness, pose a
threat to the authoritarian state -- hence, "the ceaseless warfare
of authority against the exercise of autonomy."
For a moment in recent history, we came a bit closer to
achieving recognition of the right to autonomy. More than a decade
of activism by minorities, women, gays and drug users, combined
with the growth of a significant counterculture and the public's
heightened concern about privacy in the post-Watergate era, forced
some important concessions from government:
> In 1972, the Nixon-appointed National Commission on
Marijuana and Drug Abuse released an official report that, much to
Nixon's dismay, recommended partial decriminalization of marijuana
on the ground that "the use of drugs is not in itself an
> In 1973, Roe v. Wade freed American women from back alley
butchers and guaranteed them the Constitutional right to terminate
> In 1974, the people of California voted to include an
explicit right to privacy in their state constitution, enforceable
against both governmental and private encroachments. This
amendment made it possible, more than a decade later, to bring
successful lawsuits against drug testing in the California state
> In 1975, Alaska's highest court held, in Ravin v. State,
that Alaskans had the right to cultivate marijuana for personal
> In 1978, the public supported legalization of marijuana by
31 percent, up from only 13 percent a decade earlier.
Nonetheless, a backlash against women's reproductive rights,
loosened drug prohibitions and other trends toward self-
determination developed rapidly. Anti-choice activists, especially
right wing religious fundamentalists, became a potent political
force. Anti-drug parents' groups also sprouted during this period.
By 1979, the backlash swept into office a devotee of big business
deregulation and the re-regulation of peoples' lives.
The 1980s proved devastating for the right to personal
autonomy. State legislatures dominated by anti-choice
representatives enacted public funding, parental consent and
waiting period laws that burdened a woman's right to choose. Some
legislatures, emboldened by the anti-choice views emanating from
the White House, recriminalized most abortions.
By the mid-'80s, the "war on drugs" was at full tilt. A
series of Supreme Court decisions incrementally destroyed the
Fourth Amendment's guarantee against unreasonable search and
seizure, and intensive street level enforcement of drug laws filled
the nation's prisons with non-violent drug users and sellers. By
1989, both judicial and popular support for the right to autonomy
had diminished markedly. Hatred of drug users became so strong
that even their susceptibility to the deadly AIDS virus aroused
little sympathy. And while a majority of the public still
supported legal abortion, a majority also voiced approval of
restrictions on the exercise of that right -- which meant that poor
and young women virtually lost the right altogether.
The year of Jennifer Johnson's conviction was bleak, indeed:
A newly constituted Supreme Court gutted Roe and threw out the
Fourth Amendment. In Webster v. Reproductive Health Services, the
Court upheld a Missouri law whose preamble declared that human life
begins at conception, and which forbade public employees from
providing abortion services not required for life-saving. An
enraged Justice Blackmun wrote, in dissent, "I fear for the liberty
and equality of the millions of women who have lived and come of
age in the 16 years since Roe was decided."
In the first two drug testing cases to reach the Court,
involving railway and customs service workers, respectively, the
majority held the government to a new, extraordinarily weak
"special needs" standard for conducting warrantless searches of
public employees' urine. Justice Marshall, dissenting, wrote: "I
believe the Framers would be appalled by the vision of mass
governmental intrusions upon the integrity of the human body that
the majority allows to become a reality ... ultimately, today's
decision will reduce the privacy all citizens may enjoy." As
usual, Justice Marshall was right.
If "[a]utonomy is the death knell of authority, and authority
knows it," the converse is not always true. Women, lesbians and
gay men, children, minorities, the poor and drug users, who are
bound not only by their historic lack of power but by their lack of
personal autonomy, have a common interest in supporting each
other's rights. Yet victims of authoritarianism do not always
recognize their shared plight and common interests.
The gay rights movement is participating in the fight against
drug prohibition, even risking criminal liability to help protect
intravenous drug users from HIV disease by establishing needle
exchange programs and promoting harm reduction strategies. And gay
rights activists are prominent in seeking the availability of
marijuana for AIDS sufferers.
Women, on the other hand, have acted ambiguously. Some
feminists rallied around Jennifer Johnson and others prosecuted for
taking drugs during pregnancy; there, the link between choosing to
use drugs and reproductive choice was blatant. But the organized
women's movement has greeted the outrageous violations of people's
rights attending the "war on drugs" with silence. Looking back,
the Women's Christian Temperance Union, founded in 1873,
spearheaded the ultimately successful campaign for national
prohibition. But women also figured prominently in Prohibition's
repeal. In 1929, concerned about spiraling crime, violence and
corruption, as well as about prohibition's role in the reversal of
a trend toward moderation and restraint in drinking habits, women
established the Women's Organization for National Prohibition
Reform. By 1932, membership had surpassed one million, making it
the largest anti-Prohibition organization in the country.
Which aspect of this women's history will repeat today? Will
the women's movement once again put drug prohibition on its agenda?
Civil libertarians are fond of saying that rights are
indivisible, that the first victims of government abuse are never
the last. That's why we support the free speech rights of those
whose ideas we despise. The same principle must apply to the right
of personal autonomy. If a person can be locked up for smoking a
joint or shooting dope, then I could possibly be locked up for
taking RU486. Drug prohibition is bad for everyone, but especially
for those of us who for so long have been "less equal than others."
*6 THE FAIRTEST CASE: NOTHING SPECIAL, JUST EQUALITY
by Marcia Thurmond
On February 15, the ACLU Women's Rights Project filed an
administrative complaint against the Educational Testing Service
(ETS) and the College Entrance Examination Board, challenging the
use of a gender-biased test as the sole instrument for
determining semifinalist status in the National Merit Scholarship
competition. The test is the Preliminary Scholastic Assessment
Test (PSAT)/ National Merit Scholarship Qualifying Test (NMSQT).
The ACLU, representing FairTest (the National Center For
Fair and Open Testing) filed its complaint in New York City with
the U. S. Department of Education's Office for Civil Rights,
Region Two. It contends that by choosing 15,000 semifinalists a
year based on their test scores alone, ETS and the College Board
"significantly assist" the test's discrimination against females
in violation of Title IX of the Education Amendments of 1972.
The ACLU action builds on a Women's Rights Project lawsuit,
Sharif v. New York State Education Department, that successfully
challenged the manner in which New York State Regents
Scholarships and Empire State Scholarships were awarded. In
Sharif, a federal district court judge ruled that basing the
Regents and Empire awards on SAT (Scholastic Assessment Test)
scores alone was a discriminatory practice. Following the
court's issuance of a preliminary injunction, the case was
settled when the defendants agreed to use a combination of grades
and SAT scores for determining scholarship recipients.
One purpose of the National Merit Scholarships is to reward
those students deemed to have the greatest potential for success
in rigorous college study, and each year, more than one million
high school students enter the competition by taking the
PSAT/NMSQT -- a test that consists primarily of former SAT
questions. ETS has acknowledged that the SAT overpredicts the
college performance of males, while underpredicting that of
females, and that high school grades are a more accurate
predictor of college performance. Despite that knowledge, ETS
and the College Board continue to cosponsor the use of the
PSAT/NMSQT as the sole mechanism for determining semifinalist
Females on average receive better grades in both high school
and college than males, yet they receive lower PSAT/NMSQT scores.
Thus, although 55 percent of those competing for National Merit
Scholarships are female, females make up only about 40 percent of
the semifinalists and, ultimately, of the award recipients.
In choosing finalists, the scholarships' sponsors do take
factors other than the test scores into consideration, such as
teacher recommendations, the number of academic courses studied,
grades and community service activities. But this happens only
after the semifinals, at which point 60 percent of those eligible
for the finals are male. Of the scholarship recipients, 60
percent are male.
The ACLU's suit has been criticized as seeking some type of
special treatment for females, the critics presumably regarding
the administered test as an objective measure of intelligence; if
females perform less well than males, they simply are not as
intelligent as males. The fact is that no credible evidence
exists to indicate that females are less intelligent than males.
Credible evidence is available, however, to suggest that
cognitive differences between females and males, if any, are
slight, with females having a slight advantage in verbal skills,
and males having a slight advantage in math skills. Were the
PSAT/NMSQT truly objective, those slight advantages would cancel
each other out -- which does not happen.
The ACLU is seeking, not special treatment for females, but
equal opportunity for females to compete for the valuable and
prestigious National Merit Scholarships.
Marcia Thurmond is a staff attorney with the Women's Rights
Project of the ACLU.
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*8 DUELING PENS: A Friendly Exchange About Unfriendly Words
Civil Liberties invited Professor Stanley Fish of Duke University and
ACLU Vice President Franklyn S. Haiman to comment on each other's
new books, both of which explore the subject of hate speech. The
"reviews" are followed by the authors' replies.
There's No Such Thing As Free Speech ... And It's A Good Thing Too
by Stanley Fish. Oxford University Press. 1994. 332 pages.
Civil libertarians are likely to assume from this book's title, as I
did, that it would make them mad as hell. If so, they would be surprised.
Apart from only two chapters on freedom of speech (one of which provides
the book's provocative title) that do, indeed, raise my hackles, I found
much that was agreeable in this collection of superbly crafted speeches
and articles by Duke University English and Law Professor Stanley Fish.
In 16 other chapters devoted to issues such as affirmative action,
multiculturalism and philosophy of law, I discovered what I regard as a
truly liberal perspective.
That characterization will probably raise Professor Fish's hackles
for, although he casts a plague on the houses of both liberalism and
conservatism, he is especially venomous toward the former. This may be
due in part to a tendency we sometimes have to be harder on our friends
than on our enemies. But mostly it is because of his strange definition
of liberalism, which creates a stereotype that in no way resembles my own
concept of it. He claims, for example, that an "impossible dream of
liberalism" is to behave as if there were no history, no context to one's
actions, and he then asserts that, since this is inconceivable,
"Liberalism Doesn't Exist" (title of chapter 10). He also contends that
there is a contradiction between liberalism and conviction or passion, and
persists in maintaining, as in a previous interchange between us in the
Boston Review, that there is no such thing as an open mind, but only
closed or empty ones.
Besides my denial of his unsupported assertion that liberals seek to
escape from their history, my knowledge from experience that liberalism
can be as passionate a conviction as any other, and my utter rejection of
his view that unless one locks one's basic beliefs irrevocably into one's
mind everything in it will spill out, I cannot help but wonder why he
feels it necessary to attack liberalism so feverishly if it doesn't even
From his premise that the "American mind, like any other, will always
be closed," and his "first law of tolerance-dynamics" that "tolerance is
exercised in direct proportion to there being anything at stake," Fish
proceeds to repudiate the advice of Voltaire that we should defend to the
death the right to speak of those whose views we despise. Instead, he
endorses restrictions on racist communication (thus critical of the court
decisions regarding Skokie), on the intentional infliction of emotional
distress through speech (thus condemning the Supreme Court's decision in
Hustler v. Falwell), and on pornography (thus supporting the views of
Catherine MacKinnon that were rejected in American Booksellers Association
On all of these free speech issues I could not disagree more. And
contrary to his assumptions, this is not because of some unexamined,
unarticulable faith in the First Amendment that ignores the fact that
speech may sometimes have harmful psychological consequences, nor because
I view freedom of speech as an end in itself rather than a means to some
greater good. Rather, it is because I differ with him profoundly on what
that greater good is. For Fish it is a set of substantive humanistic
values, laudable though they be, that he would impose coercively on others
because he believes those values to be right. For me it is a belief that
the greatest good for the greatest number is more likely to emerge from a
process of unfettered discussion and persuasion, even if sometimes
emotionally repulsive, than from the imposition of the values of those who
happen to be in power at a given time and place.
I find it ironic that Fish does not share my view on this, given the
attraction he himself has to vehement and often caustic argumentation, as
explicitly avowed and amply demonstrated in his book. Among other things,
for example, he notes with apparent pride how he maintained an entirely
cordial social relationship over meals and on the tennis court with Dinesh
D'Souza as he went from campus to campus with him in a series of debates
on political correctness, multiculturalism and affirmative action, in
which he mercilessly ripped Mr. D'Souza and his neo-conservative views to
shreds. Professor Fish's speeches in those debates constitute five
chapters, which I read with great delight and in almost complete
agreement. Space does not permit me to explain how I found myself in
sympathy with many of the views expressed in other chapters as well, the
two on freedom of speech unequivocally excepted.
One final quibble. I cannot fathom how he could lump Nat Hentoff in
with William Simon, William Bennett, Lynne Cheney, Hilton Kramer and
Dinesh D'Souza as one who would "put those women and blacks and gays in
their proper places, at your feet." Just because Nat is a near-absolutist
on the First Amendment? Perhaps Professor Fish's stereotypes have once
again led him astray.
-- Franklyn S. Haiman
John Evans Professor Emeritus of Communication Studies,
Fish replies: Franklyn Haiman disclaims any "unexamined, unarticulable
faith in the First Amendment," but then announces just such a faith when
he declares his "belief that the greatest good for the greatest number is
more likely to emerge from a process of unfettered discussion and
persuasion." Nowhere does Mr. Haiman tell us how this process works; what
is it about "unfettered discussion" that makes it a better vehicle for the
emergence of value than the exercise, by responsible (in two senses)
persons of substantive judgment? The usual answer to this question begins
with the Holmesian observation that judgment is variable not only between
persons but in the life of the single person who may discard tomorrow the
viewpoint he would impose today. Why institutionalize a value that in
time might well be rejected by those who now urge it most strongly? Isn't
it the case, as Holmes put it, that "the ultimate good desired is better
reached by the free trade in ideas"? But if our present problem is that
no one an be trusted to specify what the "ultimate good" is, how is it
that anyone will be able to recognize the ultimate good when and if it
appears? And why should it appear at all if the free trade in ideas is
undirected and random in its outcomes, as it must be if "free" is taken
seriously? These questions might receive intelligible answers if the
vision underlying the free trade theory were theological, if, like Milton,
we believed in the process because of a prior belief in a God who was at
once guiding it and waiting to embrace us, suitably transformed, at its
end. But no such "faith," to use Haiman's word, informs First Amendment
rhetoric, which is militantly secular and hostile to theological
imperatives. To be sure, First Amendment rhetoric has its own imperative
-- not "be ye perfect," but "be ye autonomous" -- but that imperative is
as empty as the process it supposedly mandates (autonomous for what?), and
until someone shows me what good (ultimate or not) it generates, and by
what means, I'll put my faith in the convictions that grip me, and put my
efforts into trying to get those convictions enacted into law. If this
means the imposition of my values on others, I prefer it to the imposition
on me of the values thrown up by a process that is either guided by
nothing or guided by forces and agents hiding behind it even as they
preach the false (because impossible) gospel of neutrality.
"Speech Acts" And The First Amendment
by Franklyn S. Haiman. Southern Illinois University Press. 1993. 103 pages.
Franklyn Haiman is wrong about speech act theory, but he is right to
criticize the appropriation of that theory by some legal academics, and
therefore his analysis of First Amendment jurisprudence is pretty much on
target. Haiman is misled into thinking that speech act theory rests on a
distinction between "pure speech" -- speech primarily expressive or
descriptive or assertive -- and "speech acts" -- speech that is a form of
behavior and brings about changes in the world. There is support for this
account of the theory in the opening chapters of J. L. Austin's How To Do
Things With Words, where Austin distinguishes (for example) between my
reporting that a marriage has occurred and saying "I do" in the
appropriate circumstances. "When I say, before the register or altar, 'I
do', I am not reporting on a marriage; I am indulging in it."
That, however, is only half of the story, for after having introduced
the distinction between "pure speech" and a "speech act" Austin undoes it
in the direction of the latter, discovering in the course of his
discussion that assertions, descriptions and expressions, no less than
orders, promises and threats, are part of an effort to do something. An
utterance is never simply words; it is a component in a "total speech
act," an act that is purposive and contemplates consequences; "once we
realize that what we have to study is not the sentence but the issuing of
an utterance in a speech situation, there can hardly any longer be a
possibility of not seeing that stating is performing an act."
I find Austin's analysis entirely persuasive, which means I believe
that there is no pure speech, only speech acts, only speech that spills
out into the world and alters it. Haiman believes the opposite, that
there is only "pure speech," symbolic as opposed to non-symbolic behavior
which changes nothing without the addition of "human agents who are
persuaded, for whatever reasons, to act on" it. But despite the sharpness
of our difference on this point, we finally end up in the same place
because we share an opponent, the person who thinks that one can formally
(by linguistic cues) distinguish mere speech from speech acts, and then
use the distinction to mark off protected speech from speech the state
Haiman's objection to this move is exactly on point: a statement that
takes the form of a threat as in "If you come near me, I'll hit you" might
not, in a particular situation, either be intended as such or received as
such; and therefore the determination of whether it is a threat in any
serious (and culpable) sense could not stop at noting the form of the
utterance, but would have to go on to ask questions about the context of
its production and reception.
But if assessing the real world force of an utterance depends on such
an extended inquiry, then the "a priori" division of utterances into pure
speech and speech acts would "seem to be a fruitless enterprise" since it
won't have told you what you want to know. You might as well, says
Haiman, view the utterance "simply as speech" and get on with your
investigation of the work it does in the world. And I would add, with a
difference that is finally inconsequential, you might as well view the
utterance "simply as action" and get on with your investigation of what
kind of action it is and whether or not its effects warrant state
attention. From apparently opposing directions, Haiman and I will both be
engaged in the task of identifying the factors in play and weighing the
costs and benefits of permitting or restraining certain forms of
The question we both will be asking, whether we pose it to something
called speech or something called action, will be the same: "What harm
does the behavior in question do to other people"? To the question asked
by categorizing theorists -- is this utterance one we should regulate or
protect? -- both Haiman and I will say "it depends"; it depends on any
number of things, on the "seriousness" of the harm, on whether it is
"direct and immediate or indirect and remote", on whether it is
psychological or physical, and, if it is psychological, whether the
psychological effect is so debilitating that judicial attention is
warranted. It is possible that in the course of making these
determinations Haiman and I would end up on different sides of a
particular issue (although on the issues of sexist speech, hate speech and
enhanced penalties for hate crimes we come down just about in the same
place), but we would not differ in our commitment to balancing the
competing interests that can be located in any situation that rises to the
threshold of First Amendment notice. Balancing, of course, is a notion
distressing to many because it admits political considerations into an
area that should, we are told, be a forum of principle. But political
considerations are always there whether they are acknowledged or not, and
it is to Haiman's credit that he acknowledges them even to the extent of
naming consensus and enforceability as criteria for deciding when it would
be wise or unwise to regulate. It is a pleasure to read someone almost as
unprincipled as I am.
-- Stanley Fish
Arts and Sciences Professor of English and
Professor of Law at Duke University
Haiman replies: I am delighted to learn that Stanley Fish would "come down
just about in the same place" as I do with respect to hate and sexist
speech. Either I have grossly misread what he says in his book, or he has
changed his mind on the subject or his chapters on freedom of speech were
uncharacteristically lacking in clarity.
He contends that I am wrong in claiming that speech act theory
distinguishes certain kinds of utterances from others on the basis of
their alleged capacity to change their environment. But he finds this to
be an inconsequential difference between us since we both end up with
essentially the same conclusions when deciding if restrictions on speech
are justified, whether the particular expression at issue is classified as
pure speech or a speech act. He does concede that the uses made of speech
act theory by some legal scholars may justify my critique, and he
apparently shares that concern.
I am likewise prepared to make a concession -- namely, that from a
certain perspective, such as his, it is reasonable to regard all speech as
a form of action that may have consequences in the physical world. What I
find unacceptable about his argument, however, is that obliterating the
line between speech and action, such as the line I draw between symbolic
and nonsymbolic behavior, is, or should be, of no significance in our
decision-making regarding the scope of constitutionally protected speech.
Indeed, this argument seems in direct contradiction to his book's
eloquently pithy analysis of the meaning of the First Amendment:
No one would think to frame a First Amendment that began
'congress shall make no law abridging freedom of action'; for
that would amount to saying 'Congress shall make no law,' which
would amount to saying 'There shall be no law.' ... If the First
Amendment is to make any sense, have any bite, speech must be
declared not to be a species of action, or to be a special form
of action lacking the aspects of action that cause it to be the
object of regulation.
I can only conclude from this passage, which I endorse with
enthusiasm, that if Fish finds my distinction between symbolic and
nonsymbolic behavior to be wanting, he must either come up with some other
principle to distinguish behavior that is protected by the First Amendment
from that which is not or abandon the First Amendment altogether. If he
chooses the latter course he would then have to decide, in every case,
whether the so-called speech act was to be punished or not, and he would
have to do so in the same way he would do it with non-speech acts. I
cannot agree to that kind of blank check balancing of speech against other
competing social interests, and I can never be that "unprincipled" in my
commitment to the First Amendment.
*9 THE PRESIDENT'S WORD Nadine Strossen, President of the ACLU
I have just finished writing a book about some current civil
liberties controversies of major importance, entitled Defending
Pornography: Free Speech, Sex, and the Fight for Women's Rights. Due from
Scribner's in the fall, this book gave me an opportunity to counter
widespread misunderstandings about "pornography," a term that literally
means sexually arousing expression, but which some have come to wield as
an epithet to stigmatize any sexually oriented expression that they
Prominent in the news recently have been feminists Andrea Dworkin and
Catharine MacKinnon, who advocate censoring what they label "pornography,"
and whose definition of porn -- sexually explicit speech that
"subordinates" women -- has enjoyed steady promotion in the media
spotlight. As a result, the public believes that the pornography debate
pits free speech against women's equality, and civil libertarians against
women's rights advocates. Case in point: The general counsel of Women
Against Pornography has said: "The ACLU is a male dominated organization
that uses its women to further its antifeminist agenda. When Strossen
became an apologist for the pornographers, she passed their litmus test to
My book sets the record straight on these misconceptions, showing
that the ACLU's steadfast opposition to censoring pornography reflects its
longstanding commitment to both women's rights and free speech.
For example, in an Indianapolis case that struck down a
Dworkin/MacKinnon-inspired law, the ACLU argued that the law violated both
the First Amendment and women's equality rights. Our friend-of-the-court
brief noted that the law perpetuated outmoded, infantilizing stereotypes
about women's inherent vulnerability and need for governmental
"protection" in the sexual realm, and concluded: "A statute that formally
equates women with children and men with satyrs is hardly a step toward
That censoring sexual speech harms the women's rights cause has been
vividly demonstrated in Canada, where the Dworkin-MacKinnon angle was
enshrined in law two years ago. The primary victims of Canada's anti-porn
statute have been feminist, lesbian and gay writers, along with
booksellers who purvey their writings. The latter, in fact, have been so
systematically harassed under the law that one storeowner -- represented
by Canada's ACLU counterpart -- is challenging the discrimination in
court. And predictably, two books by none other than Andrea Dworkin have
been confiscated. We told you, Andrea ....
Censorship is a driftnet that invariably ensnares not only the
designated targets, but also those committed to advancing the rights of
oppressed groups. Thus, the ACLU, during its very first decade, had to
defend the pioneer advocates of birth control, such as Margaret Sanger and
our own founding mother Mary Ware Dennett, against prosecution under
obscenity laws. More recently, we challenged the Reagan/Bush
Administrations' "gag rule," which barred the staffs of federally funded
family planning clinics from informing their patients about abortion.
Historically, all laws that have suppressed sexually-related
information have thwarted women's autonomy. Any Dworkin/MacKinnon law
would fit neatly "in the tradition," as presaged by incidents in which
these two feminists were themselves involved in campaigns to suppress
expression. Dworkin led an effort to "kill" A Woman's Book of Choices, by
reproductive rights activists Rebecca Chalker and Carol Downer, because
she disagreed with one passage in it. And both Dworkin and MacKinnon
figured in the decision of law students at the University of Michigan to
remove, from an art exhibit, a video created by some female feminist
artists that addressed issues of sexuality. (The artists, represented by
Marjorie Heins, Director of the ACLU'S Arts Censorship Project, were
For those of us who are both civil libertarians and feminists, former
ACLU women's rights lawyer Kathleen Peratis said it all: "If you love
freedom and like sex, censoring pornography is bad news."
*10 LETTERS TO THE EDITOR
A flood of letters greeted Ursula K. Le Guin's article,
"Pornography and Responsibility," Civil Liberties, #379/Fall 1993.
One letter, a composite of all the correspondents' views, elicited
an answer. That letter and Le Guin's reply are offered below.
To Ursula Le Guin:
While I appreciate your stand against censorship and your
attempt to distance yourself from the anti-pornography movement, I
found your article to be flawed by incorrect assumptions, and by
your repetition of the stereotypes about pornography that the anti-
porn movement propagates.
Nowhere in your piece do you define what you mean by
"pornography." For most Americans, the term probably conjures up
visions of X-rated movies and sexually explicit magazines. I would
define pornography as: explicit depictions of sexual activity
designed to create sexual arousal.
You seem to understand the term broadly as a pejorative that
describes not only X-rated material, but also television
commercials, print advertisements, Hollywood movies and glamor
magazines. Indeed, you seem to regard pornography not as sexually
explicit material, but as any material that projects stereotyped or
otherwise negative images of women. Such usage makes sexually
explicit material -- that is, pornography -- tautologically bad,
leaving no room for a discussion of whether such material can play
a positive social role.
I have no argument with the assertion that some media
depictions of women are harmful, or that people should work to
reform such depictions. But I do dispute claims that these
negative depictions are necessarily more prevalent in sexually
explicit material than they are in media as a whole. As with all
media, the quality of pornography varies. Stigmatizing porn as bad
per se makes it harder for people to be informed consumers.
The anti-porn movement's image of the sex-media industry is
simply not correct. For example, in sexually explicit movies women
are not always portrayed as passive; dominant or balanced roles are
quite common. And depictions of explicit violence, rape or other
non-consensual sexual acts are very rare. To the extent that such
movies display stereotyped gender roles, they simply reflect the
sexism that pervades our other media and society in general. No
evidence exists to show that they caused the sexism.
Note: In this discussion, I'm referring to legally distributed
material that is potentially subject to censorship, not to child
pornography or so-called "snuff movies." I'm also not referring to
hyperviolent slasher movies that glorify violence against women,
but are by no measure "pornographic."
Some people hold the opinion that explicit depictions of sexual
activity are by their very nature degrading. Many others, however,
of both sexes and all sexual orientations, find such material
stimulating, educational and fun. Your quoting Margaret Atwood
assumes that all people share the same social matrix for their
sexuality. Not so. Many people choose to explore sex not in the
darkened bedrooms of traditional heterosexual romance, but outside
those bounds, in bright light with consenting partners.
Far from being a fundamental assault on women, sexually
explicit material can often be an educational tool for liberating
women who aspire to transcend the constraints our culture imposes
on sexual roles.
As for sex-workers in our society: The plight of Linda
Lovelace, if true, is certainly a tragedy. However, an event that
occurred in the early 1970s can hardly serve to indict an industry
operating in the very different climate of the '90s. The legal sex
industry is highly regulated to prevent participation by minors or
the coercion of actors. I discount economic coercion, which is an
unfortunate side-effect of our economic system, affecting many
people in many fields of work.
Our culture's attitudes towards sexuality are changing and
becoming more diverse. Sexually explicit material has a role to
play in this evolutionary process. The persistence of widespread
misconceptions about sexually explicit material, often repeated by
the well-intentioned, make First Amendment protection of
pornography all the more critical.
Dear Mr. Shalit:
Thank you for your letter. I appreciate your tone and spirit.
Several of your points made a great deal of sense to me; they will
help clarify my thinking, and I do keep thinking about this topic.
There is quite a widespread assumption that to dislike and
distrust pornography, pornoviolence, and commercial exploitation of
misogyny is to advocate censorship. It isn't easy to dislike,
distrust, and even loathe something, and yet be absolutely opposed
to silencing it; yet that is, of course, precisely the Voltairean,
ACLU stance. I know a lot of people besides myself who take that
stance as regards both commercial porn, and the not-technically-
pornographic commercial exploitation of violence against and
degradation of women in advertising and the media. A lot of them
are, of course, feminists.
I say this because there is a tendency at the moment to co-opt
feminism into extremism. On one hand, Dworkin and MacKinnon are
alleged to speak for all feminists, who are portrayed as pro-
censorship prudes, hand in glove with foaming Fundamentalists. On
the other, because feminism as a freedom movement is anti-
censorship, feminists are supposed to be sympathetic to any
depiction of sexuality, no matter how violent and misogynistic, and
to find it harmless and/or beneficent.
To me both these depictions of feminism are inaccurate. Yet
I keep meeting them. My talk was an inaccurate and probably unwise
attempt to say so.
You say my definition of pornography is so broad as to leave
out consideration of the positive role of sexually explicit
material. You are right. I need a better definition than
Atwood's, which I used in the article. But there must be a
definition. Because if all sexually explicit material is defined as
inherently harmless or beneficent -- which is the position of many
anti-censorship spokespeople -- there is no room for consideration
of the negative role of some of its forms and varieties.
And so no reform, no effort to resist the acceptance of
commercial exploitation of misogyny, will be addressed by the ACLU
or other liberal bodies.
Censorship is not the only issue. (Oh how I envy single-issue
My books have been and are frequently censored, principally by
the market and by schools and library boards controlled by the
religious right. I have written, and am writing, sexually explicit
material myself. Currently there are magazines who won't take such
stories because they're scared of getting pulled by their
distributors, who are scared of the religious right. Censorship is
my enemy. But that doesn't make misogyny my friend.
I am truly grateful for your letter, which allowed me to talk
to you as to a friend, and to feel that not everybody is totally,
irrationally polarized on this issue.
With all good wishes,
Ursula Le Guin
*11 PUBED FOCUS: A RELUCTANT "RADICAL" IS MAKING HISTORY
By Phil Gutis
Margaret Gilleo, a former Junior Leaguer and bank official
in Ladue, Missouri, is not someone normally accused of stirring
controversy. But today, with a major free speech case before the
U.S. Supreme Court, Gilleo stands accused of pushing "radical"
views on her neighbors.
Recently interviewed in her living room, a grand piano and
antique tapestries in the background, Gilleo related how in
December 1990 she had joined a church-based grass roots coalition
that hoped to persuade Congress to "give peace a chance" on the
eve of the Persian Gulf War. One part of the coalition's action
plan called for participants to place 24-by-36-inch signs on
their lawns, saying: "Say No to War in the Persian Gulf -- Call
With barely a thought about the First Amendment, Gilleo
erected her sign. Within days, the sign was vandalized and then
stolen. When Gilleo reported the theft to the police, they
casually informed her that it was she who had broken the law. It
seems that Ladue, like many other communities around the country,
had passed a municipal ordinance years earlier that essentially
banned all yard signs, except for those with limited commercial
purposes, such as "for sale" signs. The law, however, had been
rarely -- if ever -- enforced before Gilleo posted her explicitly
Gilleo went to the city council to request a variance under
the ordinance, but said: "When I asked the town for permission to
put up the sign, the first question was, `What does the sign
say?' When I told them, they said, `Oh no, you can't do that in
Contacted by the ACLU of Eastern Missouri, Gilleo initially
rejected assistance, thinking that she had made her point. But
on second thought, she was happy to have the ACLU challenge
Ladue's ordinance in federal court as a content-based regulation
"We are talking about a citizen's right to express her own
views on her own property on an important public issue," said
ACLU cooperating attorney Jerry Greiman. "That is fundamental
political speech of the kind that the First Amendment was
designed to protect."
Confronted with a preliminary injunction, Ladue amended its
ordinance. The ACLU then filed an amended complaint and won a
permanent injunction against the new ordinance. The city
appealed, first, to the U.S. Court of Appeals for the Eighth
Circuit, which affirmed the district court ruling; then to the
U.S. Supreme Court, which heard the case in February. A ruling
is expected by the close of the Court's term.
Phil Gutis is Media Relations Director in the ACLU's Public
ACLU TAKES ON RELIGIOUS RIGHT
Over the past year, the resourceful Christian Coalition and
its legal arm, the American Center for Law and Justice, have
redoubled their efforts to insinuate religious practices into the
nation's public schools. They have churned out a steady stream
of letters, brochures and lawsuits to garner support for official
school prayer, and both overt and covert Christian holiday
To counter these efforts, the ACLU's Public Education
Department has been mounting a communications campaign to raise
public consciousness about the importance of keeping church and
state separate in the nation's public affairs. To date, we have:
> published a variety of special materials,
including an ACLU Legal Bulletin, "The
Establishment Clause and Public Schools," and
a briefer for students on religious freedom;
> mailed information in bulk to public school
superintendents, school board members, and
public and institutional libraries;
> produced a 34-minute video called "America's
Constitutional Heritage: Religion and Our
Public Schools" and distributed it to
thousands of educators and parents;
> placed op ed articles on school prayer in
national, regional and local newspapers;
> placed ACLU speakers on more than 150 radio talk shows;
> for the first time, staffed a booth at the
Annual Exposition of the National School
As we go to press, the Public Education Department is
completing production of a mailing to more than 7,000 school
board members urging that they resist any efforts to stage
"student initiated" prayers at graduation ceremonies.
*12 CIVIL LIBERTIES INTERNATIONAL:
ACLU And HRW Report On U.S. Human Rights Record
By Paul Hoffman
The ACLU and Human Rights Watch issued a joint 178-page
report in December 1993 evaluating United States compliance with
the International Covenant on Civil and Political Rights (ICCPR),
which our government ratified in 1992. The report focuses on
nine areas: race and sex discrimination, language rights,
immigrants' rights, prison conditions, police abuse, death
sentencing, freedom of expression and religious liberty. Here
are some of its findings:
The U.S. routinely violates Article 10 of the ICCPR, which
requires that all prisoners and detainees "be treated with
humanity and with respect to the inherent dignity of the human
person," by maintaining prison conditions that are extremely
overcrowded, lacking in privacy, unhealthy and unsafe; also, by
handling prisoners inhumanely in "supermaximum security"
facilities, where, for example, inmates may spend years indoors
or may be forced to eat like animals, with their hands tied
behind their backs. Article 26, which bans discrimination, is
violated by the unequal treatment of women prisoners, who receive
less recreational, vocational and educational opportunities than
Immigrants and Refugees
The interdiction and summary repatriation of Haitian boat
people is a flagrant violation of Article 12, which provides that
"[e]veryone shall be free to leave any country, including his
own"; it also violates Article 24, which forbids discrimination
based on national origin (intercepted Cubans are not summarily
repatriated). Human rights abuses by Immigration and
Naturalization Service border patrol agents violate Article 7
(the right to be free from torture or cruel, inhuman or degrading
treatment) and Article 9 (the right to liberty and security of
Generally, U.S. laws' protections against race
discrimination comply with ICCPR standards -- but not in
practice. Segregation, discrimination and inequalities persist
in schooling and housing, and in employment blacks are three
times less likely to be hired than similarly qualified whites.
These conditions violate Article 2, which requires an effective
remedy for violation of Covenant rights, and Article 26, which
requires "equal and effective protection [i.e., enforcement of
the remedy] against discrimination on any ground."
Language minorities face discrimination in health and social
services, employment and education, as well as such hostilities
as the "English Only" movement. Article 26 forbids
discrimination based on language, while U.S. law does not
explicitly protect against such discrimination. Moreover, the
relatively weak judicial scrutiny that has greeted constitutional
claims in this area is protected by the U.S. understanding to
Article 26, which purports to allow language discrimination when
it is "rationally related to a legitimate governmental
objective." Erasure of this understanding and implementation of
the ICCPR would provide much-needed protection for language
In violation of Article 26, women face systemic, entrenched
employment discrimination in terms of occupational access,
conditions of employment and compensation; exclusion from
government-funded medical research, and unequal treatment in both
secondary and higher education in terms of attention and
resources. The U.S. is in non-compliance, even taking into
account its limiting understanding of Article 26.
The 1990 Supreme Court decision in Employment Division v.
Smith represented a serious legal incursion into First Amendment
protection for the free exercise of religion. The trend was
halted by passage of the Religious Freedom Restoration Act in
1993, but that three-year hiatus in protection underscores the
potential importance of the ICCPR as an additional line of
defense against encroachments upon fundamental rights.
Freedom of Expression
Although the U.S. is a leader in this area, it falls short
of complying with Article 19, which guarantees a right "to seek,
receive and impart information ... regardless of frontiers." The
U.S. curtails the information flow both into and out of the
country by denying visas to some controversial speakers; by
blocking entry of materials from certain countries through
economic embargoes; by restricting travel abroad, and by
constraining individuals' ability to seek and impart information
independently. The severe and unjustified restrictions imposed
on the media during the Persian Gulf War also violated Article
The Death Penalty
Article 6 does not require abolition of the death penalty,
but it favors abolition and limits the penalty's use. It forbids
arbitrary death sentencing and the execution of juveniles, and it
stipulates that a death sentence may be imposed "only for the
most serious crimes." The U.S. entered a reservation to the ICCPR
that allows death sentencing to the extent permitted under the
U.S. Constitution. But for this reservation, the U.S. would be
in violation of all the Article 6 conditions cited above.
The 1991 beating of Rodney King made clear that police abuse
is one of the most pressing human rights issues facing the U.S.
The persistent use of excessive force, often exacerbated by
racism, violates Article 7's prohibition on "cruel, inhuman and
degrading treatment or punishment" and the prohibition against
discrimination in Articles 2 and 26. The U.S. further violates
Article 2 by failing to take "the necessary steps" to ensure
respect for these basic rights.
The U.S. government was due to release its own compliance
report, for the first time under a major international human
rights treaty, around the time the ACLU/HRW report was published.
That report has yet to appear.
Paul Hoffman, an author of the ACLU/HRW report, is chair of the
ACLU's International Human Rights Task Force.
How to Order the Joint Report on Human Rights Violations
in the United States
The ACLU and Human Rights Watch collaborated on this landmark
report, which, for the first time, evaluates U.S. compliance with
the human rights standards set forth in the International
Covenant on Civil and Political Rights (ICCPR). Citing major
shortcomings in that compliance, the report calls on the Clinton
Administration to take steps toward correcting a wide range of
abuses and to make it possible to invoke ICCPR protections in
U.S. court cases.
Human Rights Violations In The United States. Human Rights
Watch/American Civil Liberties Union. 178 pages. $15.00 plus
$3.00 shipping & handling. TO ORDER: Send name/address and
check/money order, payable to Human Rights Watch, to:
Publications, Human Rights Watch, 485 Fifth Avenue, New York, NY
*13 IN THE CONGRESS: NOT THE WORST, BUT HARDLY THE BEST, OF TIMES
by Laura Murphy Lee
A disturbing array of civil liberties assaults has marked
the 103rd Congress's second session. The ACLU Washington Office
succeeded in reducing the potential harm of these attacks.
However, more threats loom before adjournment, which is scheduled
for late July to allow all of the House and one third of the
Senate to stand for reelection.
Among the pressures bearing upon it, Congress has largely
focused on how to respond to public concern about violent crime.
Yet instead of honestly debating the issues, our representatives,
joined in their dereliction by the Executive, have often
exploited public exasperation by playing fast and loose with
Thus, the prescription offered for youth violence is prayer
in school, plus censorship of "gangsta rap" and television
programming; for repeat felons and gun users, more mandatory
minimum sentences -- despite evidence that they are ineffective
and lead to gross miscarriages of justice; for juvenile crime,
treating 13-year-olds as adults in the federal criminal justice
system, and the designation of more than 50 crimes as federal
Government is apparently in denial about the real breeding
grounds of antisocial behavior -- substandard education, poverty,
drug and alcohol abuse, unemployment, inadequate housing and
wideranging discrimination. Poverty? The Administration
proposes to limit aid to dependent children and phase out family
assistance after two years. Discrimination? The proposed health
care reforms would deny health services to immigrants, fomenting
bias against "foreign-looking" people.
To control crime in public housing, it has been suggested
that tenants agree to warrantless searches of their homes when
they sign the dotted line in their apartment leases. To corral
drug abuse, we have new prison construction and meager funds for
treatment programs. To remedy discrimination based on sexual
orientation, we get "Don't Ask, Don't Tell."
Congressional softness on the notion that school prayer
might curb youth violence has inspired much troublemaking at the
Constitution's expense. Seizing the opportunity presented by
this muddleheadedness, the ever vigilant Jesse Helms (R-NC)
slipped through the back door of an education bill an amendment
that would have withdrawn federal funding from any public school
district that prohibited "constitutionally protected prayer."
Ever since the Fifth Circuit decided not to strike down student-
initiated graduation prayer -- the Jones vs. Clear Creek ruling,
which applies only to Texas, Louisiana and Mississippi -- the
religious right has been seeking to extend that decision's reach.
Through ACLU efforts, the Helms amendment was beaten back in
committee. However, Helms-type language will reappear later this
year as more education bills reach the House and Senate floors.
Health Care Reform
Despite the high priority given health care reform by the
President, a consensus on that reform's scope and nature has yet
The ACLU's national offices jointly addressed the civil
liberties issues implicated by health care reform in Toward a New
Health Care System, the Civil Liberties Issues, a report that has
been well received as a lobbying and organizing tool.
We are working to ensure that any reform package includes
adequate privacy protections for medical records. And teamed
with women's groups, we are repelling assaults on reproductive
rights that have begun to arise as health care bills move through
Congress. The fact that all women would be affected by any
curtailment of these rights has created a volatile legislative
battle with farreaching implications. Equally urgent are our
efforts to repeal the Hyde amendment, which bars abortion funding
for poor women. In addition, we are working to ensure coverage
for prisoners and undocumented workers in health care proposals,
a task made difficult by the prevalent fear-of-crime, anti-
The Crime Bill
Once again, Congress has taken the low road on crime. At
this writing, House and Senate conferees are trying to forge a
single bill that includes over 50 new capital crimes -- among
them: non-homicidal offenses like drug trafficking; the heralded
"Three Strikes, You're Out" idea; more than 22 mandatory minimum
sentences; prosecution of juveniles as adults; criminalized gang
membership -- "gang" being defined so broadly that a high school
football team or even Congress might qualify, and such shocking
anti-immigrant proposals as allowing secret evidence at
Refusing to accept as a done deal that this nightmare will
reach the Oval Office for signing, the ACLU has mobilized more
than 25 national organizations to promote elimination, in
committee, of the legislation's worst features and produced
documents outlining its assaults on due process, Eighth Amendment
protections, equal protection and First Amendment rights.
As we go to press, the Freedom of Access to Clinic Entrances
Act, which makes it a federal crime to blockade the facilities of
abortion providers, has passed, Congress having rejected
groundless assertions that the Act infringed upon the First
Amendment rights of anti-abortion protesters. Instead of
targeting speech, which would hinder the exercise of a
constitutional right, the Act targets obstructive conduct. The
ACLU's illumination of the distinction between restrictions on
speech and constitutionally permissible restrictions on
obstructive conduct helped ease the legislation's way.
For information about activities in Congress in the coming
months, contact us at (202) 544-1681. Fact sheets are available
on a wide range of issues.
Laura Murphy Lee is Director of the Washington Office of the
*14 IN THE COURTS: WE WON!
by Steven R. Shapiro
The ACLU continues to score significant victories in
state and federal courts across the country. Here are
summaries of some recent triumphs:
Drug Testing on Campus
In November 1993, the ACLU of Colorado won its 1984 challenge to
the University of Colorado's requirement that all students wanting
to participate in intercollegiate athletics submit to urinalysis at
their annual physical, as well as to random urine tests throughout
the academic year, whether or not they were suspected of using
drugs. The Colorado Supreme Court held that the program violated
both the Fourth Amendment's privacy guarantees and the equivalent
section of the state constitution. In May 1994, the U.S. Supreme
Court declined to review, letting the lower court ruling stand.
On May 5, the ACLU of Oregon won vindication under the Fourth
Amendment for James Acton, who was dismissed from his junior high
school football team two years ago for refusing a drug test. The
U.S. Court of Appeals for the Ninth Circuit said: Concerns about
student drug use notwithstanding, "we also understand the concern
of our forebears and the importance of the protections given by the
constitutional provisions which prohibit unreasonable searches and
Foster Care Reform
The Children's Rights Project, representing all foster children in
Washington, D.C. plus thousands of other abused and neglected
children about whom the District receives reports each year,
proved, in a lawsuit brought in 1989, that the District's child
welfare system was "in a state of ongoing crisis as severe as that
experienced by many of the homes from which the system is removing
children." In 1991, the federal District Court declared the system
illegal and irreparably harmful to the children it was supposed to
protect. Sweeping reforms negotiated by the ACLU have been in
process since; however, District officials appealed that portion of
the decision holding them liable for the system's failings. In
late 1993, the Court of Appeals for the D.C. Circuit affirmed the
liability ruling, and in January 1994, the U.S. Supreme Court
declined to review. The ACLU continues to monitor District
compliance with the reform order.
On February 22, the Superior Court of Pennsylvania threw out
criminal charges brought against Michelle Kemp for delivering a
controlled substance to her fetus. The law under which Kemp was
charged, said the Court, was not intended to apply in utero. The
Women's Rights Project and the Greater Pittsburgh ACLU Chapter
represented Kemp. Significantly, the Court was unpersuaded by the
state's invocation of Pennsylvania's Abortion Control Act, which
defines an "unborn child" as a human being at conception.
Gays in the Military
On April 4, the Lesbian and Gay Rights Project obtained a
preliminary injunction from a federal District Court in New York
blocking the government's discharge of six service members who are
plaintiffs in an ACLU challenge to the "Don't Ask, Don't Tell"
policy. The ACLU acted when the government notified one of our
clients of his imminent discharge, two days after learning that he
was a plaintiff in the case. The injunction protects the six
plaintiffs' military status until their case is decided.
On March 18, the National Prison Project reached an historic
settlement in a Rhode Island lawsuit that was initiated in 1974.
Back in 1977, the federal District Court declared the entire state
prison system unconstitutional, ordered remediation of the system's
overcrowded, unhealthy and unsafe conditions and appointed an
overseer to monitor compliance with that order. Over the years,
the state was held in contempt several times for noncompliance.
The settlement compels the state to bring conditions in its prisons
up to constitutional standards.
Freedom for "Mariel Cuban"
After fleeing to these shores from Cuba in 1980, Alexis Barrera-
Echavarria spent nine years in various federal prisons -- refused
repatriation by the Cuban government and considered "dangerous" by
the U.S., although he had not been charged with a crime.
Echavarria challenged his incarceration, supported by the
Immigrants' Rights Project and the ACLU of Southern California as
friends-of-the-court. On March 31, the U.S. Court of Appeals for
the Ninth Circuit held that even excludable aliens are entitled to
due process and cannot be preventively detained for long periods
Voting Rights Victory
The Southern Regional Office and the NAACP, after triumphing when
a federal District Court created a majority black Congressional
district that elected James Clyburn, South Carolina's first black
Member of Congress since Reconstruction, have now won their appeal
of redistricting plans for the state house and senate on behalf of
a coalition of African Americans. The U.S. Supreme Court agreed
that the lower court had failed to adequately evaluate those plans
under the racial fairness standards of the Voting Rights Act. The
state is now poised to create approximately nine additional
majority black house districts in time for the 1994 elections.
Abortion Funding In Idaho
In a 1993 lawsuit filed by the Reproductive Freedom Project, the
ACLU of Idaho and Planned Parenthood, a state trial court declared
unconstitutional, under Idaho's constitution, a rule that
prohibited state funding for abortions unless two physicians
certified that the procedure was necessary to save a woman's life.
"While the state is not constitutionally required to provide
financial assistance for pregnancy care," held the court, "once it
decides to do so generally, it must proceed in a neutral manner.
It may not pick and choose ... especially where the choosing may
invade a woman's constitutionally protected right." The state has
Steven R. Shapiro is Legal Director of the ACLU.
*15 AFFILIATE NOTES describes activities of the ACLU's affiliate and
chapter offices. Through dedicated staffs and the help of
volunteers from the legal community, the ACLU has a broad
national network at work every day to protect and defend the Bill
of Rights. Consult your local affiliate or chapter for
assistance from, or information about, the ACLU.
The affiliate won an unusual reproductive freedom case in which
its 22-year-old pregnant client, called "Mother Doe" in court,
was ordered by the Public Guardian of Chicago's Cook County to
undergo a caesarean. Doctors at St. Joseph's Hospital had
recommended the procedure after discovering that Doe's
36-week-old fetus was not receiving adequate oxygen and
nutrition. Doe, a Pentecostal Christian, refused the operation
on religious grounds, including the belief that God would protect
her unborn baby. Fearing liability, hospital officials notified
child welfare authorities, who sought government intervention in
juvenile court. The state's attorney, after failing to prevail
at a hearing, appealed to the Illinois appellate and supreme
courts, both of which affirmed Doe's right to make her own
decisions regarding medical treatment. On December 29, 11 days
after the U.S. Supreme Court declined to review the case, Doe
delivered a healthy baby boy.
The affiliate, working with the ACLU's Voting Rights Project,
has won a federal court judgment requiring Worcester County, on
Maryland's Eastern Shore, to elect candidates to countywide
offices by a cumulative voting scheme that will correct the
under-representation of racial minorities. The ACLU represented
the Worcester County Voting Rights Coalition, which praised the
court order as both avoiding the difficulties inherent in
designing a black-majority district and producing a remedy that
is likely to withstand legal challenge. Cumulative voting, a
remedy advocated by Lani Guinier, whose nomination to head the
Justice Department's civil rights division was withdrawn by
President Clinton, is in use in several localities around the
country due to settlements reached in voting rights suits. Under
cumulative voting, electors may cast as many votes as there are
open seats on the county commission, giving all of their votes to
one candidate or distributing them among several candidates.
In one of several affiliate cases challenging so-called
"student-initiated" graduation prayers, a federal district court
ruled that student-initiated prayer is not an exception to the
1993 U.S. Supreme Court decision in Lee v. Weisman. The ruling
directly contradicts the Fifth Circuit's decision to permit
student-initiated prayer in Texas, Louisiana and Mississippi. If
appealed, the Jersey holding could provide the U.S. Supreme Court
with yet another opportunity to address this issue.
The affiliate's Pittsburgh office has filed suit in federal
court on behalf of corrections officer Dieter "Mike" Troster, who
has refused to comply with a requirement that he wear an American
flag patch on his work uniform. Troster, a retired Army major,
regards flag displays on clothing as desecration of a symbol he
reveres, and he feels that being forced to wear it is a form of
coerced "patriotic" speech. So far, the ACLU has won an
injunction blocking Troster's suspension. A full hearing is
In a case that tested one legal strategy being developed to
avert the government's establishment of programs that threaten
both religious freedom and the goal of educational equity, a
Commonwealth of Puerto Rico court struck down the critical
portion of a private school voucher law on April 19. Local
cooperating attorneys had challenged the law under the Puerto
Rican constitution, which explicitly prohibits tax support for
private schools. Voucher initiatives failed in Oregon in 1990,
Colorado in 1992 and California in 1993. Their adherents,
however, have pressed on. Americans for School Choice, headed by
former education secretary Lamar Alexander, announced plans to
target at least five states in 1994 and eight in 1996. Voucher
bills have lately been considered by 20 state legislatures.
The affiliate's threat of litigation sufficed to beat back
Texas public school attempts to discriminate against pregnant
students. The Hempstead School District's board had voted to bar
pregnant teens and teen mothers from cheerleading and other
extracurricular activities. When the affiliate, with the Women's
Rights and Reproductive Freedom Projects, gave notice that the
policy was illegal, the board reversed itself. A school in the
Bartlett Independent School district, claiming health concerns,
told a high school senior she could not take part in any
extracurricular activity in which she would be visible to the
public without permission from her physician. But the student
was allowed to participate in a school play as a member of the
backstage crew. The ACLU warned the school to desist or face a
The affiliate, representing musicians of the Seattle-based
Washington Music Industry Coalition, scored one for artistic
freedom with the overturning of Washington's "erotic music" law -
- the first in the nation to target the sale of sound recordings
to minors. After the ACLU had obtained an injunction from Kings
County Superior Court to block enforcement, the state supreme
court declared the law an infringement of customers' and
retailers' free speech rights, and of retailers' due process
rights -- the latter because it lacked a mechanism for notifying
stores that a court had found specific material illegally erotic.
- Lynn Decker
*16 BOOK REVIEW: IS FREEDOM A SOMETIME THING?
by Burt Neuborne
Hate Speech: The History of an American Controversy
by Sam Walker.
University of Nebraska Press. 1994. 217 pages.
Sam Walker, history professor, longtime ACLU national board
member and the ACLU's premier chronicler, has written an ACLU-eye
view of the historical effort to censor hate speech.
Walker takes us from the sporadic attempts to censor Ku Klux
Klan rantings, and the crude anti-Semitism of Henry Ford's Dearborn
Observer, in the 1920s; to the efforts to muzzle Nazi propaganda in
the 1930s; the occasionally violent targeting of anti-Catholic
messages emanating from Jehovah's Witnesses in the 1940s; the half-
hearted effort to censor racist and anti-Semitic speech in the
1950s; the virtual abandonment of censorship efforts at home, and
the emergence of an international movement against hate speech
abroad, in the 1960s; Skokie and the dramatic revival of domestic
debate over censoring hate speech in the 1970s, and the resurgence
of a powerful movement to censor hate speech in colleges,
workplaces and the streets in the 1980s.
Walker's comprehensive factual research anchors a rich
narrative that is dotted with the unexpected. Did you know that
Jack Ruby, Lee Harvey Oswald's assassin, first surfaced in New
Jersey in 1939 as one of a violent mob seeking to prevent Nazis
from demonstrating; or that Frank Collin, the Nazi leader who tried
to march through Skokie, is half-Jewish; or that hundreds of
Jehovah's Witnesses were assaulted in the early 1940s for refusing
to salute the flag and because of their anti-Catholicism; or that
this century's pre-eminent American philosopher, John Dewey,
testified before Congress against censorship at the end of World
At least two bonuses await the reader of Hate Speech. The
first is Walker's important insight that nothing was -- or is --
foreordained in the dispute surrounding hate speech. Walker deftly
demonstrates how current First Amendment doctrine incubates the
seeds of a powerful censorship movement. To find the legal raw
material for widespread censorship, one need only mine the
"fighting-words" doctrine of Chaplinsky v. New Hampshire and
Justice Felix Frankfurter's decision in Beauharnais v. Illinois
upholding a group libel law. Walker's careful marshalling of the
legal authorities makes it painfully clear that free speech
flourishes not by a mechanical application of legal principles, but
by judicial and social choice -- a reminder that free speech is too
fragile to be left exclusively to lawyers.
After demonstrating that First Amendment doctrine does not
clarify the censorship/hate speech issue, Walker turns to the heart
of his inquiry. Why, he asks, did American society go down the
free speech road when legal rationales for censorship were so
accessible? One possible answer, hinted at but not pursued by
Walker, is that we did not go down that road for everyone. My
predecessor, Mel Wulf, is quoted as observing that even as the
nation was rejecting the censorship of hate speakers, it was
vigorously attempting to censor communists and opponents of the
Vietnam War. But that's another book.
Walker prefers the explanation that no real political
constituency existed, as it did regarding communists, to support
censorship of hate speech. In the absence of such a constituency,
he hypothesizes that the ACLU, as the only game in town, nudged the
Supreme Court and society in a libertarian direction. Until
recently, he points out, those representing the principal targets
of hate speech -- the NAACP, the American Jewish Congress and the
ACLU -- were united in a strategic understanding that hate speech
laws little served their interests. Thus, in the wake of the 1952
Supreme Court's Beauharnais decision, which, in upholding group
libel laws, apparently opened the door to widespread suppression of
hate speech, virtually no efforts were made to enact hate speech
laws. In fact, ten years after Beuharnais, the Illinois
legislature actually repealed the very law the Supreme Court had
A second bonus is Walker's reminder that the civil rights
coalition's historic opposition to censoring hate speech was
spurred by a fear that the power to censor, once unleashed, might
be turned against them. Thus, the ACLU decided in 1934 to fight
censorship of Nazis, fearing, in part, that the weapon used against
the right would inevitably be used to crush the left. And the
NAACP and AJC declined to endorse censorship of hate speech in the
critical years after Beauharnais, out of fear that civil rights
demonstrators in the South would be its next targets.
Walker's perception that civil rights advocates championed the
free speech rights of hate speakers for strategic rather than
principled reasons is an important lesson toward understanding the
current support of censorship by those who no longer view
censorship as a threat to their political programs.
Walker's message that free speech is a matter of political
choice, not logical doctrine, and that until now no real political
constituency has existed for censorship of hate speech, highlights
the importance of the ACLU in the current controversy. If historic
victims' groups decide, strategically, to call for censorship, the
ACLU will increasingly stand alone in its principled support of
free speech for all.
If I have a serious criticism of Hate Speech, it is the
author's failure to explore why some civil rights groups are
abandoning the traditional consensus that supported a libertarian
approach to hate speech. Why is support for censorship gathering
on the American reformist left, where it barely existed before?
Why are calls for censorship coming now from egalitarian reformers?
I, for one, would have been deeply interested in Sam Walker's
explanation. It is not enough to understand the past. We need to
understand the present, the better to affect the future.
Burt Neuborne, a former legal director of the ACLU, is a Professor of Law
at New York University School of Law
*17 TALKING LIBERTIES by Ira Glasser, ACLU Executive Director
Traditionally, political pressure to censor television or movies in
the United States has come from the right. Today, however, the pressure
to restrict television and movie content comes mainly from liberal
politicians: from Attorney General Janet Reno, who has used the power of
her office to threaten producers; from Senator Paul Simon, a near icon of
liberalism who trumpets his support for the ACLU and yet has threatened
legislation to restrict television "violence" -- only vaguely defined --
during certain hours.
Such legislation would almost certainly be unconstitutional if
passed, but the threat of it has moved networks to "voluntarily" adopt
content-based restrictions. As a result, Mr. Simon has delayed pressing
his legislation for a year, preferring to hold his sword at network
executives' necks pending his evaluation of their initiatives. And Ms.
Reno has grudgingly acknowledged the networks' capitulation, while
indicating her preference for even more restrictions.
To justify these moves, politicians with a history of support for
the First Amendment have advanced the proposition that curbing moving
image violence would reduce violence in real life. But where is the
credible evidence that on-screen violence can turn a stable, law abiding
person into a violent criminal? The real violence that concerns all of
us cannot credibly be traced to Rambo movies, video games or cartoons,
much less to "Murder, She Wrote" -- a television series that Ms. Reno
has characterized as "about nothing but violence" even as she concedes
the total absence of graphic portrayals of violence on that mannerly
The "Murder, She Wrote" example illustrates the general problem of
defining violence. Any definition emanating from the government,
however, is almost guaranteed to be so vague and/or overbroad as to vest
enormous discretion in prosecutors, leading to widespread trampling on
First Amendment rights.
What might be the fate of "Romeo and Juliet" or of its 1970s'
musical incarnation, "West Side Story"? The classic screen thriller,
"Psycho"? John Wayne movies or "Westerns" or war movies or James Bond
films? What about cartoons or nursery rhymes, which have been violent
throughout the ages? And what about films like "Schindler's List" --
which has already felt the heat in Wisconsin, where a public high school
prohibited a history teacher from taking his class to see "Schindler's
List" because the film is rated "R" for both violence and nudity.
Not to say there isn't too much mindless, gratuitous violence on
movie and TV screens -- there always has been. Just because producers
have the right to show garbage doesn't mean they should. In supporting
free expression, we are not required to approve of content that we
disagree with or deplore. But that isn't the issue. The issue is
whether we want the government to decide what should and should not be
Legitimation of government censorship targeted on moving image
violence would produce a bitter harvest of wide-ranging restrictions on
freedom of expression that would not be offset by any measurable
reduction in street violence. Once again, in response to their
constituents' legitimate, politicians have cynically created a diversion
in an effort to appear "tough on crime," while the grave problems
besetting our society continue to fester.
The violence in our streets is unquestionably fueled, not by
depictions of violence on television, but by the convergence of drug
prohibition and the illegal drug market's lure of riches with the dearth
of legitimate economic opportunities for ghetto youth. Yet politicians
refuse to talk sense about decriminalization. The notion that homicide
has become the leading cause of death among young African American males
due to "Mortal Kombat" or TV shoot-'em-ups is ludicrous. Do drug
dealers blow away each other, their customers and innocent bystanders
because they watched "The Untouchables"? Was Al Capone a killer because
he watched Bugs Bunny as a child? I don't think so.
By refusing to talk seriously about what drug prohibition has
wrought, by refusing to talk seriously about the problems they were
elected to solve, politicians are engaging in self-censorship. At the
same time, they want to censor us by pulling the plug on shows that they
claim turn normal people into psychotics. It's a hoax, folks.
Ira Glasser is Executive Director of the ACLU.
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