Civil Liberties The National Newsletter of the ACLU #380, Spring 1994 (c) 1994 American Ci

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Civil Liberties The National Newsletter of the ACLU #380, Spring 1994 (c) 1994 American Civil Liberties Union .____ ._____ __ __ ._____ __ / __/ /_ ._/ / / / / /_ ._/ / / / /__ ._/ /_ \ \/ / ._/ /_ / /___ \___/ /_____/ \__/ /_____/ /_____/ __ ._____ ___. ____. .__ ._____ ._____ .____ .____ / / /_ ._/ / -_| / ___/ / _ \ /_ ._/ /_ ._/ / ___/ / __/ / /__ ._/ /_ / _ \ / __/ / / / / ._/ /_ / __/ __\ \ /____/ /_____/ /____/ /____/ /_/\__\ /_/ /_____/ /____/ /____/ Civil Liberties // The National Newsletter of the ACLU Copyright (c) 1994 American Civil Liberties Union ----------------------------------------------------------------------------- Issue #380, Spring/Summer 1994 FEATURES *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 DEPARTMENTS *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 Samuel Walker *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 Rights. 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 Education. =================================================================== *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 information. 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 "cyberspace." 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. Free Speech =========== 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 divisions. 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. Privacy ======= 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 sidebar.) 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 surveillance. 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. Stay online. -------------------- 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 this: "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 elude arrest. "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 criminal activity. "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 the ACLU. ============================================================= *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 cord. 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 care program. 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 irresponsible act." > In 1973, Roe v. Wade freed American women from back alley butchers and guaranteed them the Constitutional right to terminate a pregnancy. > 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 courts. > In 1975, Alaska's highest court held, in Ravin v. State, that Alaskans had the right to cultivate marijuana for personal use. > 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 status. 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. ============================================================= ACLU Membership Lists The ACLU obtains the names of potential new members by renting its membership/subscriber lists to, or exchanging them with, other non-profit organizations and publications. Sometimes the ACLU defrays the cost of its new member recruitment program by renting its lists to selected organizations. 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Many members who have received multiple invitations to join the ACLU have written to us deploring such wastefulness. Please understand that the electronic scanning device we use to eliminate multiple solicitations does significantly reduce their number, but it is not perfect. For example, if a member's name appears on our list as John J. Jones, and on a rented prospect list as J. J. Jones, the scanner will not eliminate that duplication. If you receive two copies of our newsletter at your home and/or office, please remove both address labels and send them to us so we can consolidate the two listings. We don't want to waste money on duplicate mailings any more than you want to receive them! We remain grateful to ACLU members who understand that rentals and exchanges of lists -- transacted under strict privacy guidelines -- are the cornerstone of our new member acquisition program, which in turn is key to the growth that increases our civil liberties impact and influence. -- Denise Hantman, Membership Director ============================================================= *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 exist. 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 v. Hudnut). 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, Northwestern University 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 might regulate. 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 behavior. 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 dislike. 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 become president." 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 sexual equality." 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 eventually vindicated.) 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. Andrew Shalit Somerville, Massachusetts 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 people!) 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 Congress Now." 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 political message. 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 Ladue.'" 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 of speech. "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 Education Department. ============================================================================ 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 observances. 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 Boards Association. 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. -Loren Siegel ============================================================= *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: Prisoners ========= 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 male inmates. 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[1] (the right to liberty and security of the person). Race Discrimination =================== 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 Rights =============== 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 minorities. Sex Discrimination ================== 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. Religious Liberty ================= 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 19. 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. Police Brutality ================ 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 10017-6104 ============================================================= *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 constitutional rights. 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 capital offenses. 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." School Prayer ============= 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 to emerge. 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- immigrant climate. 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 deportation proceedings. 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. Reproductive 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 ACLU. ============================================================= *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 seizures." 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. Mother-To-Be Rescued ==================== 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. Prisoners' Rights ================= 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 without trial. 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 not appealed. -------------------- 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. ILLINOIS ======== 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. MARYLAND ======== 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. NEW JERSEY ========== 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. PENNSYLVANIA ============ 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 scheduled. PUERTO RICO =========== 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. TEXAS ===== 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 lawsuit. WASHINGTON ========== 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 War II? 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 upheld. 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 show. 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 shown. 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. ---------------- 8< ------------- cut here ------------- 8< -------------- ACLU We Need You The ACLU needs your support to continue defending the Bill of Rights. If you are a member and have not yet renewed, please note your membership category below and seud us your check along with the mailing label on the right. If you are not yet a member, you can join by filling in the information below. 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