JANUARY 19, 2020
ONE HUNDRED YEARS AGO, on January 19, 1920, the American Civil Liberties Union began its mission of forcing the government to live up to the 132-year-old Constitution. The organization grew out of the National Civil Liberties Bureau (NCLB), which had been co-founded in 1917 by Crystal Eastman, an outspoken attorney, and Roger Nash Baldwin, a visionary social reformer. The purposes of the NCLB were to defend freedom of speech, primarily antiwar speech, and to support conscientious objectors who opposed the United States’s entry into World War I. The New York Times denigrated the NCLB as a “little group of malcontents,” which was simultaneously “troublesome” and an “unimportant and minute minority — noisy out of all proportion to their numbers.”
Despite campaigning for re-election in 1916 on the slogan, “He kept us out of war,” after his re-election, President Woodrow Wilson reversed course and, on April 2, 1917, asked Congress for a declaration of war. Now fully embracing his role as a wartime president, Wilson announced that the “authority to exercise censorship is absolutely necessary to the public safety.” The government was quick to act. By mid-July, the US Postal Service had banned 12 pamphlets published by the NCLB. Armed with the Espionage Act of 1917 and later the Sedition Act of 1918, the government intensified its punishment of protesters and dissenters. The courts afforded little or no protection. Indeed, in 1919 the US Supreme Court upheld the convictions of Socialist Party leader Charles Schenck and newspaperman Jacob Frohwerk for publishing antiwar literature and prominent Socialist Eugene Debs for speaking out against the war.
Beginning on January 2, 1920, in the second wave of the infamous Palmer Raids, government agents in 30 cities and towns eventually rounded up thousands of dissenters and prepared over 6,300 deportation cases. In this highly agitated atmosphere, it was dangerous to disagree with the patriotic majority. Yet on January 12 and 13, 1920, Baldwin and his courageous allies gathered at the Old Chelsea, 51 West 16th Street in New York City, to form the American Civil Liberties Union (ACLU). Its first official meeting was held on January 19. Baldwin served on the 14-member Executive Committee, along with Norman Thomas and A. J. Muste. Other prominent figures, such as Jane Addams, Helen Keller, Elizabeth Gurley Flynn, Arthur Garfield Hays, and later Felix Frankfurter, served on a larger National Committee.
Today, the ACLU has 1.5 million members with affiliates in all 50 states, supported by 300 full-time lawyers nationwide and another 1,700 to 2,000 volunteer lawyers, who together handle approximately 1,400 state and federal legal cases a year. No other private organization has appeared as often in the US Supreme Court. According to a comprehensive survey published by Steven Markoff, the ACLU has been involved, as counsel of record or amicus curiae (friend of the court), in an astounding 1,000 Supreme Court published decisions.
To mark the centennial of the ACLU, several books are being published. One is Fight of the Century: Writers Reflect on 100 Years of Landmark ACLU Cases, edited by Michael Chabon, the author of numerous books including The Amazing Adventures of Kavalier & Clay, and Ayelet Waldman, the author of a memoir and several novels including Love and Treasure. They have gathered 38 writers, and, together with their own contributions, offer 40 wide-ranging essays examining some of the most important legal battles the ACLU has fought over its tumultuous first 100 years. The book includes an engaging and informative foreword by David Cole, the national legal director of the ACLU and the author of several books, including most recently Engines of Liberty: How Citizen Movements Succeed.
Cole offers a good summary of the impressive array of momentous victories the ACLU has achieved, as discussed in these pages.
Over the course of the ACLU’s first century, the courts have recognized substantial safeguards for free speech and free press; protected religious minorities; declared segregation unconstitutional; guaranteed a woman’s right to decide when and whether to have children; recognized claims to equal treatment by women, gay men, and lesbians; directed states to provide indigent criminal defendants an attorney at state expense; regulated police searches and interrogations; and insisted on the rights to judicial review of immigrants facing deportation and even foreign “enemy combatants” held at Guantanamo in the war on terror.
Cole adds that in “thousands of cases brought or supported by the ACLU, the courts have extended the protections of privacy, dignity, autonomy, and equality to an ever-widening group of our fellow human beings.”
Readers will find it refreshing to read a collection of essays about court decisions written mostly by novelists. Far be it for me to complain about the way lawyers write, but it is certainly welcome to consider the impact and relevancy of important judicial decisions outside the strict boundaries of legal and constitutional interpretation and instead through the lens of lived experiences, full of struggle, emotion, fear, resilience, hope, and triumph. As the editors put it,
we have collected essays from some of our country’s finest writers — not just because writers are and have long been among the principal beneficiaries and guardians of the First Amendment but also because they traffic, by temperament and trade, in nuance and its elucidation, in ambiguity and shades of gray.
Take for example, the very first essay, by Viet Thanh Nguyen, winner of the Pulitzer Prize in Fiction for his novel The Sympathizer. The case he discusses is Stromberg v. California, an early victory against government censorship. In 1929, Yetta Stromberg, a teacher and member of the Youth Communist League, worked at the Pioneer Summer Camp in California, attended by working-class children. Each day, Stromberg conducted a ceremony during which she raised a red flag while the kids pledged allegiance to “the worker’s red flag, and to the cause for which it stands, one aim throughout our lives, freedom for the working class.” She was convicted for violating a California law passed in 1919 which banned the public display of red flags. Represented by the ACLU, Stromberg took her case to the Supreme Court, which in 1931 ruled in her favor 7-2, finding the ban unconstitutionally vague under the 14th Amendment. Two years later, California repealed the law.
Nguyen chooses to reflect on the decision by writing about his own experience as a Vietnamese refugee. He was born in the Republic of Vietnam, otherwise known as South Vietnam, whose flag was a field of yellow with three red horizontal stripes. After the fall of Saigon in April 1975, the victorious Democratic Republic of Vietnam — the North Vietnamese — adopted a red flag with a yellow star in the center as the national flag. Nguyen’s family emigrated to San Jose, and throughout the Vietnamese refugee community he saw the yellow flag as symbolizing a displaced and exiled nation. He reports that in his community “no one dared to fly the red flag because the punishment from the community would have been immediate.”
The anticommunism of Vietnamese refugees easily aligned with the anticommunism that ran deep in the United States. On August 5, 2006, with bipartisan support, the California legislature passed a law declaring the yellow flag of South Vietnam as the Vietnamese Heritage and Freedom Flag of the Vietnamese community and to be displayed at official events in which a flag for Vietnam was called for. Thus, Nguyen writes, 75 years after Stromberg, a “red flag would once again be banned.”
In 2009, while Nguyen was teaching at the University of Southern California, a controversy broke out when an anticommunist activist stapled the yellow flag around the red flag among all the flags of the world’s countries which hung from the rafters of an international building. Nguyen and a colleague called a meeting of the Vietnamese-American community on campus. One side called for forgiveness and reconciliation. “Their sentiments were noble, but perhaps these students could afford to be noble: they had won,” Nguyen writes. The other side spoke of defeat, shame, pain, and filial piety.
Nguyen reports no outcome to the meeting. Instead he observes that in “the battle over free speech, the problem lies, as it always does, when both sides believe their speech is correct.” Echoing the “more speech, not less” approach fostered by Justice Louis Brandeis and consistently supported by the ACLU, Nguyen argues that in “a democracy of plural public and private spaces, there should be enough room for all forms of speech, which is what the Supreme Court ruled in Stromberg.” He adds that “[t]hose who loudly proclaim the inherent goodness of free speech, and the evils of suppressing it, would do well to listen to their own words before preventing the words of others.”
Like Viet Thanh Nguyen, Brit Bennett, a novelist and contributor to The New Yorker, The New York Times Magazine, and The Paris Review, is also worried about flags and coerced patriotism. In her essay, she links the landmark decision in West Virginia State Board of Education v. Barnette to the recent protests of former San Francisco 49ers quarterback Colin Kaepernick. In 2016, Kaepernick chose to sit during the pregame national anthem, later explaining that he was “not going to stand up to show pride in a flag for a country that oppresses black people and people of color.” A week later, Kaepernick and teammate Eric Reid knelt during the national anthem.
After Kaepernick’s protests, Bennett wore an enamel pin on her backpack that featured “the iconic image of Kaepernick, afro picked, kneeling.” She remembers that she was surprised at the suddenness of the anger of white people in response to her pin. But for her, the issue is not the flag or the anthem. “The problem is black disobedience. A kneeling black body becomes dangerous because a disobedient black body is dangerous.”
Which brings Bennett to the Barnette case. In that 1943 case, the Court, in a 6-3 ruling, held that public schools could not constitutionally force students to salute the American flag. The ACLU filed an amicus brief in support of the Barnettes, a family of Jehovah’s Witnesses whose faith forbade making oaths to secular national symbols. Only three years earlier, in an 8-1 decision, the Court had upheld Pennsylvania’s mandatory flag salute ceremony. Writing for the majority in that case, Justice Felix Frankfurter had asserted that “national unity is the basis of national security.” Ironically, barely 20 years before that, Frankfurter had helped found the ACLU.
In Barnette, Justice Robert Jackson, speaking for the majority, now wrote that
[s]truggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good, as well as by evil, men. […] Those who begin coercive elimination of dissent soon find themselves exterminating dissenters.
Notably, two years later, Jackson would take a leave of absence from the Court to serve as US Chief Prosecutor at the Nuremberg Nazi War Crimes Tribunal.
Bennett ends her essay by recalling that every day in school she and two other black kids stood in her classroom and recited the Pledge of Allegiance, despite the fact that she knew as a black woman there is no liberty and justice for all. She just wanted to put her head down and get along. She was conflicted, however, because she was deeply moved when Whitney Houston sang the National Anthem. She also kept a folded American flag for her grandfather on the mantel. “You can live this way, finding beauty within violence,” she writes, “But eventually it bowls you over, knocking you down to your knees.”
In another essay, Yiyun Li, author of six books including her recent novel Where Reasons End, tells us that when she was growing up in a Soviet-style apartment block in Beijing in the 1970s, she enjoyed examining the twice daily delivery of letters and newspapers in a neighborhood mailbox with a dangling door. One day, an unusual letter arrived addressed to her father, a nuclear physicist. It was in a foreign language. Her father explained that it was a response from an English scientist to a letter of his that had been published in a foreign physics journal. But neighbors had also seen the letter and reported her father to the authorities. He was summoned by his work unit to explain himself. He got a warning and later he was denied an anticipated transfer and was assigned instead to the Institute of Marxist Dialectical Materialism, where he was demoted to a job closer to a clerk for the rest of his life.
For Li’s father, an “epistle from abroad spelled danger, but that did not happen only in communist China.” She cites the US Postal Service and Federal Employees Salary Act of 1962, which required recipients of letters from a foreign country containing “communist political propaganda” to advise the government that they wished to receive such mail. In 1963, the post office asked Dr. Corliss Lamont if he wanted to take delivery of a copy of the Peking Review, which had been published by the Chinese government in five languages since 1958. Lamont just happened to have been a director of the ACLU for 22 years. He did not respond to the post office’s notice. Instead, the ACLU sued the government on his behalf to enjoin the statute.
In 1965, Lamont won a unanimous ruling from the Supreme Court holding that the US postmaster had violated his First Amendment rights. Imposing an affirmative obligation on an addressee to ask for such mail “is almost certain to have a deterrent effect, especially as respects those who have sensitive positions” whose livelihood may depend on a security clearance. Any addressee “is likely to feel some inhibition in sending for literature which federal officials have condemned as ‘communist political propaganda.’” According to Justice William Brennan’s opinion, the “dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.”
But Li warns that as digital communications increasingly replace snail mail, the US Border Control is “using questionable authority to search the cell phones of passengers arriving in America.” She ominously asks whether it would be far-fetched to imagine that if “the political atmosphere continue[s] as it is under the current administration, that one day we would be required to unlock our cell phones to show that in our texts and emails, we have not expressed any thoughts of disloyalty[.]”
Fight of the Century is filled with engrossing stories like these, giving some of the most important court decisions of the last 100 years a human dimension and added relevance and urgency. The writers achieve this by illuminating the personal stories behind the legal decisions and by connecting their own lives to the legal issues at stake.
Elizabeth Strout, winner of the Pulitzer Prize for her 2008 novel, Olive Kitteridge, remembers wearing a black armband to protest Alexander Haig’s appearance at her university in 1981. She applauds the courage of Mary Beth Tinker, who 16 years earlier, at the age of 13, wore a black armband in her school in Des Moines, Iowa, to protest the Vietnam War. Represented by the ACLU, Tinker later won an important Supreme Court decision protecting the First Amendment rights of students.
Novelist Dave Eggers tells the chilling story of how the ACLU came to Danny Escobedo’s defense when in 1960 he was accused of murder in Chicago but denied the right to counsel during his police interrogation. Eggers warns that “we still have widespread, even epidemic, problems with forced confessions.”
In writing about the landmark 1971 Pentagon Papers decision in which the ACLU filed an amicus brief, Salman Rushdie modestly notes that he too has had “some experience of countries in which the powers that be control the information media.” Speaking of President Trump’s relentless attacks on the press, Rushdie points out that “the first step toward authoritarianism is always the destruction of people’s belief that journalism is, broadly speaking, pursuing and telling the truth.” The second step is for the authoritarian leader to say: “Just believe in me, for I am the truth.”
And it wouldn’t be the ACLU without some disagreement in the ranks, as I have learned having served on the Board of Directors of the ACLU of Southern California for over 25 years. Scott Turow, a former federal prosecutor and author of 11 best-selling works of fiction as well as two nonfiction books on the law, takes great exception to the ACLU’s support for the Supreme Court decisions in Buckley v. Valeo and Citizens United v. FEC, which struck down restrictions on campaign expenditures on First Amendment grounds. For the record, David Cole comes to the ACLU’s defense pointing out that the ACLU’s position is not that campaign finance regulation is necessarily unconstitutional, “only that the government needs to point to a compelling justification and regulate narrowly, because limiting how much citizens can spend on speech of a particular content necessarily implicates the First Amendment.”
It is certainly a daunting challenge to have to choose 40 from the 1,000 cases in which the ACLU has been involved in the last 100 years. Some readers may be disappointed that their favorites are left out. If it were up to me, I certainly would have devoted an entire essay to the pivotal court decisions which validated the ACLU’s position that no matter how much we despise the Nazi ideology and its practices, the American Nazi Party had a constitutional right to peacefully march in Skokie, Illinois, the home to many survivors of the Holocaust. The ACLU lost 30,000 members over that principled stand but in time the Skokie case has come to symbolize the very essence of the ACLU: it defends those whose constitutional rights have been violated regardless of their politics, religion, nationality, sexual orientation, or beliefs.
Another very important ACLU case that deserves attention is Gitlow v. New York (1925), which was in fact the very first case argued by the ACLU in the Supreme Court. It succeeded in broadening the protections of the First Amendment by applying them against state and local laws. Although the court upheld Gitlow’s conviction based on the facts in his particular case, the Incorporation Doctrine (applying the Bill of Rights to state and local laws) has proven essential in reining in unconstitutional state statutes and local ordinances.
In Engel v. Vitale (1962) (striking down official public school prayers), Abington School District v. Schempp (1963) (striking down school-sponsored Bible reading in public school), and County of Allegheny v. ACLU (1989) (prohibiting a government-sponsored nativity scene), the ACLU won important victories upholding the separation of church and state, which deserve to be in the pantheon of ACLU victories, especially since the ACLU provided direct representation in each of these cases — a far greater commitment of time and resources than filing an amicus brief.
One final candidate for consideration is Texas v. Johnson (1989), in which the Supreme Court held that a federal statute that made it a crime to desecrate the American flag violated the First Amendment. In his concurring opinion, Justice Anthony Kennedy eloquently expressed the quandary he — and indeed the ACLU — faces in cases of this kind:
The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. […] It is poignant but fundamental that the flag protects those who hold it in contempt.
As the essays in Fight of the Century confirm, it is difficult to imagine an important legal, political, or social issue which our nation has faced over the last 100 years in which the ACLU has not played a pivotal role advocating in court on behalf of the Constitution. Since it was founded by that “little group of malcontents” a century ago, the ACLU has made a unique and indelible impact on the protection and expansion of constitutional rights for everyone in the United States.
Chabon contributes his own excellent essay on the court battle over the censorship of James Joyce’s masterpiece Ulysses in the United States, featuring the clever legal tactics employed by ACLU chief legal counsel Morris Ernst (who is misidentified in the introductory summary of the case as an “ACLU cofounder”). Chabon observes that the “history of the ACLU is a history of great struggle, bitter and glorious,” but “it is first of all — a history of great lawyers.” It is certainly true that hard-working and brilliant ACLU lawyers deserve enormous credit for what they have done, and continue to do, to tenaciously and courageously defend the Constitution, often facing public condemnation and the vastly greater resources of the government. But if I had to choose whom to honor first, I would honor the clients the ACLU has represented and supported in these cases — the women and men who risked their safety, jobs, life savings, reputations, and their very liberty to stand up for what they believed in. As we celebrate the centennial of the ACLU, let’s recognize Yetta Stromberg, Fred Edwards, Marie and Gathie Barnett, Fred Korematsu, Oliver Brown, Clarence Earl Gideon, Danny Escobedo, Corliss Lamont, Estelle Griswold, Ernesto Miranda, Mildred and Richard Loving, Mary Beth and John Tinker, Dick Gregory, Sidney Street, Robert Cohen, Norma McCorvey, Kenneth Donaldson, Stephen Wiesenfeld, Jesus Morales, John Lawrence and Tyron Garner, Diane Schroer, Edith Windsor, James Obergefell, and the tens of thousands of others who have challenged injustice and inequality.
In this spirit, Fight of the Century is dedicated to “the ACLU’s clients, who for over 100 years have refused to accept injustice and have chosen to fight for civil liberties and civil rights.” Yet as many of the contributors make clear, this struggle never ends. The list of brave clients will grow as the work of the ACLU continues in the face of ever new assaults on constitutional rights.
Speaking to members of the Massachusetts Anti-Slavery Society on January 28, 1852, abolitionist Wendell Phillips eloquently put it this way:
Eternal vigilance is the price of liberty; power is ever stealing from the many to the few. The manna of popular liberty must be gathered each day or it is rotten. The living sap of today outgrows the dead rind of yesterday. The hand entrusted with power becomes, either from human depravity or esprit de corps, the necessary enemy of the people. Only by continued oversight can the democrat in office be prevented from hardening into a despot; only by unintermitted agitation can a people be sufficiently awake to principle not to let liberty be smothered in material prosperity.
At a time in our country when the “hand entrusted with power” has become the “enemy of the people,” only by continued oversight can he “be prevented from hardening into a despot” (though for many he already has). Only by the sustained agitation of active and engaged people, with the support of the ACLU as well as a host of other social justice organizations, courageous state attorneys general, independent US Attorneys, and dedicated elected officials at all levels, can we “be sufficiently awake to principle not to let liberty be smothered in material prosperity.” Eternal resistance is the price of democracy.