JULY 5, 2020
ON JANUARY 20, 2020, 100 years to the day since the American Civil Liberties Union opened its doors, the first case of COVID-19 was reported in the State of Washington. As it had learned to do from experience, the ACLU immediately began looking at how the American people could confront the crisis without sacrificing their rights and liberties. As the Trump administration and state and local governments took action — or failed to take action — to deal with the deadly virus, the ACLU filed its first lawsuit of the COVID-19 era on March 16, seeking the immediate release of nine medically vulnerable immigrant detainees from Immigration and Customs Enforcement custody. By early April, the ACLU had filed 36 lawsuits across the country, seeking to pursue voting rights; save lives in ICE detention, jails, and prisons; defend abortion rights in five states; and protect a wide range of other civil rights and civil liberties. By June, the ACLU had initiated an astonishing 138 legal actions related to COVID-19. With 1,900 staff members across the United States, the ACLU was built for this kind of crisis. After all, it was founded in the midst of another wrenching crisis in American history.
During and after World War I, the United States was racked by political, racial, ethnic, gender, economic, and other conflicts that severely tested the country’s commitment to the noble principles announced in the Declaration of Independence, the Constitution, and the Bill of Rights. But who would defend those principles? Who would ensure that what James Madison feared would become mere “parchment barriers” were actually translated into enforceable rights that governments and powerful private interests — the very forces that were violating those rights — were bound by law to respect?
The dramatic, turbulent, colorful, controversial, and, in many cases, little-known story of how the ACLU responded to the urgent need to defend the Constitution and how it has persisted in that mission for the last hundred years is told in an engaging new book by Ellis Cose entitled Democracy, If We Can Keep It: The ACLU’s 100-Year Fight for Rights in America. Cose, a journalist and author of several books, including The Rage of a Privileged Class, previously served as a writer-in-residence at the national office of the ACLU. After the election of Donald Trump, he decided to step down as an ACLU employee so that he could write an independent history of the organization. Importantly, he requested and was granted unconditional access to the ACLU and its records, as well as the ACLU papers at the Seeley G. Mudd Manuscript Library at Princeton University. These sources enabled him to assemble an immense amount of information about the ACLU that even I, as a member of the board of the ACLU of Southern California for over 25 years, learned here for the first time.
The result, as Cose puts it, is “a story about the evolution of America itself” that “reminds us [of] how difficult, and yet important, it has been to protect those who have the courage to stand up to the raucous, righteous, unthinking mob.” Cose disclaims any intention of writing “the definitive story of the ACLU,” although alongside Samuel Walker’s magnificent In Defense of American Liberties: A History of the ACLU (1990), he comes very close.
Cose does not attempt to write a “litigation history of the ACLU.” Instead, by combining a discussion of some of the organization’s most significant court battles with an account of some of its activism in the streets and halls of power, he delivers a fascinating chronicle of one of the most important organizations in the history of the United States. To his credit (and for the benefit of his readers), he does not ignore episodes in the ACLU’s long history when it lost its way, succumbing to the very majoritarian impulses to conform and obey, which most of the time it admirably resisted. Even as we readily acknowledge the unfinished task of creating a More Perfect Union, after reading this book one finds it hard to imagine what the lives of American people would be like if over the last century the ACLU had not held those in power accountable, according to the rule of law and the Constitution, for the racism, oppression, bigotry, hatred, corruption, greed, and official wrongdoing that would otherwise have gone unchecked.
World War I unleashed a wave of fear, xenophobia, intolerance, bigotry, and blind patriotism that exposed deep prejudices against immigrants, minorities, anarchists, socialists, women, and anyone who dissented from established mores and government policies, all of which had been vexing society in one form or another since the founding. As early as January 1915, a group of social progressives that included social work pioneer and suffragette Jane Addams, feminist Crystal Eastman Benedict, and Gertrude Minturn Pinchot, wife of a politically connected lawyer, founded the Woman’s Peace Party “to enlist all American women in arousing the nations to respect the sacredness of human life and to abolish war.” (Here and throughout, Cose ensures that the pivotal role women played in the founding and history of the ACLU is given center stage.) Alarmed by President Woodrow Wilson’s push for war “preparedness” and his denunciation of “hyphenated-Americanism,” in 1915 Benedict, Lillian Wald, a stalwart peace activist and trained nurse, and others formed the American Union Against Militarism (AUAM). The group immediately attacked compulsory enlistment as “the oldest Instrument of tyranny” that “would place our entire democracy in the hands of a military caste.”
Wilson used his Flag Day speech at the base of the Washington Monument on June 14, 1916, to denounce the emerging antiwar movement. There “is disloyalty active in the United States, and it must be absolutely crushed,” he declared. “It proceeds from a minority, a very small minority, but a very active and subtle minority” that must be taught that “loyalty to this flag is the first test of tolerance in the United States.”
In early 1917, a 33-year-old social worker and teacher of sociology at Washington University in St. Louis arrived in New York City to assume the leadership of the AUAM. Roger Nash Baldwin, the oldest son of a well-off leather merchant and his “artsy, intellectual, suffragette wife,” had earned a baccalaureate and master’s degree in anthropology at Harvard University. He would soon play the seminal role in creating the ACLU and would lead the organization for three decades.
After the United States declared war, popular sentiment against the draft collapsed and the AUAM shifted its focus to protecting conscientious objectors and the right to protest. In May 1917, AUAM published a pamphlet entitled Constitutional Rights in War-time, defending the right to free speech and assembly and complaining that “[m]en are being arrested and fined for criticizing the Government or the President” while “[h]alls are refused for meetings, […] pamphlets and literature opposing the war are confiscated and the authors hauled into court.” On Baldwin’s recommendation, the AUAM formed a Civil Liberties Bureau, which was soon referred to as the National Civil Liberties Bureau (NCLB). Cose notes that the term “civil liberties” was then uncommon in the United States and suggests that it may have been borrowed from the British National Council for Civil Liberties.
In June, Congress passed the draconian Espionage Act, which vaguely prohibited “false statements with the intent to interfere with the operation or success of the military […] or [to] promote the success of its enemies” or willfully causing or attempting to cause “insubordination, disloyalty, mutiny, refusal of duty” or willfully obstructing recruitment or enlistment. Violations were punishable by fines of up to $10,000 or an imprisonment for up to 20 years, or both.
On the Fourth of July, a New York Times editorial called freedom of speech “a fine thing” but argued that “[i]nevitably there must be restriction on speech.” That fact, said the Times, was “entirely ignored by the little group of malcontents who for present purposes have chosen to call themselves ‘The National Civil Liberties Bureau.’” Pressing on, the Times argued that the “freedom of speech wanted by these troublesome folk is that of talking sedition and of lending aid and comfort to our enemies, but they are an unimportant and minute minority — noisy out of all proportion to their numbers…”
In 1917 and 1918, the NCLB devoted considerable time and resources to publicly defending the Industrial Workers of the World (IWW), widely known as the “Wobblies,” a radical labor union that aggressively recruited blacks and new immigrants. The Justice Department issued indictments against 166 IWW members, charging them with interfering with the war efforts through “sabotage” and “pronounced opposition to the support of the war in which this country is enlisted.” The only woman among the defendants was Elizabeth Gurley Flynn, who would soon play an important role in the ACLU. She was charged with “conspiracy” for writing an article opposing the United States’s entry into the war, which the IWW had published without her knowledge.
On May 16, 1918, while the IWW trial was in progress, Congress passed the Sedition Act, making it a crime to “willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag” or to use language intended to bring “the United States into contempt, scorn, contumely, or disrepute.” Like the Espionage Act, violations were punishable by fines of $10,000 or imprisonment of up to 20 years, or both. On August 30, 95 IWW defendants were found guilty and were given sentences totaling 807 years and fines of $2.3 million. The very next day, the Justice Department raided the NCLB’s office, confiscating pamphlets and correspondence.
Cose calculates that “[b]etween 1917 and 1919, more than two thousand individuals were indicted under the new wartime laws, and more than a thousand were convicted.” The United States had shown, Cose writes, “how easily the Constitution was flung aside, how weak were the protections that many of its citizens had accepted on faith. Americans, it turned out, could not depend on the government and powerful private interests alone to keep America true to herself.” Meanwhile, he continues, “[x]enophobia, racism, and the war between management and labor resurged, making 1919 one of the most turbulent and divisive years in American history.”
On August 1, 1919, Attorney General Alexander Mitchell Palmer established a General Intelligence Division, later renamed the Federal Bureau of Investigation, and appointed 24-year-old John Edgar Hoover to head it. Within months, Hoover had amassed the names of 150,000 “suspected radicals.” On November 7, the first of the infamous Palmer Raids was launched in cities across the country. Nearly 1,000 men and women were rounded up, most accused of being “alien criminal anarchists.”
On January 2, 1920, in the second wave of Palmer Raids, 2,500 suspects were arrested in late-night sweeps in 30 cities. The press proclaimed it the “greatest roundup of radicals in the nation’s history,” with many accused of attempting “to organize Negroes in support of plans to overthrow the present political and economic system.” In this terrifying atmosphere, Baldwin and a few brave colleagues met 10 days later at the Civic Club on West Twelfth Street in lower Manhattan to reorganize the NCLB. They agreed to name the new organization the American Civil Liberties Union. With the Reverend Harry F. Ward as chair and Baldwin as secretary, the brand-new organization got to work on January 20. The Washington Post reported that the ACLU would “champion in the highest courts the civil liberties of persons and organizations” and would make sure that “industrial struggles” were “in conformity with the constitution of the United States and of the several states of the Union.”
As Cose puts it, the “Great War demolished the notion that America was immune to Europe’s troubles,” leaving “many Americans afraid — of foreign ideologies, domestic collaborators, homegrown violence, and newly emboldened blacks.” The ACLU’s first annual report warned that “[n]ever before were the civil rights guaranteed by constitutional provision so generally ignored and violated.”
Cose takes the title of his book from Benjamin Franklin’s apocryphal response to a question said to have been posed at the conclusion of the Constitutional Convention in 1787 by Elizabeth Willing Powel, an influential and politically astute member of Philadelphia society. She asked whether the framers had created a republic or a monarchy. Franklin is said to have replied “a republic, if you can keep it.” Another fitting title for Cose’s book would be: “A Constitution, If You Can Keep It.”
Having skillfully depicted the founding of the ACLU, Cose next describes the array of urgent challenges the new organization felt compelled to confront. The ACLU and the Amalgamated Textile Workers immediately took aim at a rule prohibiting public meetings without a permit in Passaic, New Jersey. ACLU members were arrested along with iron and steelworkers in Duquesne, Pennsylvania, for trying to hold an open-air meeting. When a Unitarian minister, the head of the Women’s Trade Union League of New York, and Socialist Norman Thomas were arrested for participating in a protest, the ACLU succeeded in having the ordinance used against them declared unconstitutional by the New York State Supreme Court. On Labor Day 1920, the ACLU co-sponsored four well-attended rallies in New York on behalf of “political prisoners,” all keynoted by IWW leader William “Big Bill” Haywood, who remained under the shadow of his 20-year prison sentence. (When his appeals were denied, he fled to Soviet Russia, where he remained until his death.)
As it would be for the next hundred years, the ACLU combined activism in the streets and targeted litigation in the courts with unrelenting advocacy in the press. When President Wilson told the New York World newspaper that during his presidency no man “has been punished for expressing his opinion,” the ACLU shot back with a letter to the editor pointing out that at least 600 people “whose only crime was the expression of the truth as they saw it” were still in prison or out pending appeal.
The ACLU also published a stream of pamphlets and reports drawing attention to the breadth of its mission. For example, in July 1921, it issued Lynching and Debt Slavery, written by William Pickens, field secretary of the NAACP, arguing that slavery had not ended with the 13th Amendment because Southerners had concocted a system that kept blacks in economic bondage. As Cose sees it, Baldwin “was publicly working out his ideas of the class struggle he believed had the potential to reshape the nation.” He describes how Baldwin, confronted by a hostile judiciary that rarely agreed with the ACLU, “instead favored direct action: pamphleting, speech-making, street theater, under-the-radar diplomacy, and tools of what is now called civil society.”
In 1925, the ACLU took on one of its most famous cases, the Scopes “Monkey” trial, to which Cose deservedly devotes considerable attention. When Baldwin learned that Tennessee had passed a law prohibiting the teaching of evolution in public schools, he took ads in local papers offering to defend any teacher who defied the law. John Thomas Scopes, a 24-year-old high school teacher who had studied law and geology in college, volunteered. Baldwin recruited America’s most celebrated criminal defense lawyer, Clarence Darrow, to defend Scopes. William Jennings Bryan, a former Democratic presidential candidate and devout Christian proselytizer, was enlisted by the state of Tennessee to defend the law.
The trial garnered sensational national attention. After the judge repeatedly sided with the prosecution, Darrow complained that “every request of the state is granted and our merest suggestion overruled.” The judge rebuked Darrow: “I hope you do not mean to reflect on the court,” to which Darrow replied, “Well, your Honor has the right to hope.” When Darrow later apologized, the judge forgave him and in doing so betrayed his own religious leanings, declaring that the “man that […] came into the world to save men from sin […] taught that it was godly to forgive.”
The judge denied Darrow’s request to present scientific evidence to support the theory of evolution, but allowed the defense to submit affidavits for the record (presumably to be read by an appeals court). Eight scientists and two clergy produced a 60,000-word document expressing their views. The most surprising point of the trial came when Darrow cross-examined Bryan outside the presence of the jury. Darrow said he intended to “show the world what it means for bigots and ignoramuses to control the educational system of Tennessee.” Bryan agreed to the unprecedented spectacle in order “to defend the Bible against the attacks of the greatest atheist — agnostic — in the United States.” For two hours, the legal titans went after each other. In the end, most press reports scored the fight in Darrow’s favor. The Philadelphia Inquirer wrote that after Darrow was done ridiculing Bryan’s stubborn literal interpretation of the Bible, Bryan was “near hysterics.”
But the jury never heard that testimony and took only nine minutes to find Scopes guilty. The judge imposed a $100 fine. Less than a week later, Bryan died of apoplexy. In 1927, Scopes’s conviction was set aside on appeal on the technicality that the judge, not the jury, had determined the fine. Remarkably, in 1967 another 24-year-old Tennessee teacher was dismissed for teaching evolution. The ACLU and the National Education Association hired the Clarence Darrow of his time, William Kunstler, to defend that teacher. Under pressure, the school board reinstated the teacher before the case went to court, and the Tennessee legislature repealed the law that had made it a crime to teach evolution in public school.
As Cose sees it, the Scopes trial catapulted “the ACLU onto the national stage, cementing its status as something infinitely more consequential than a group of guerilla theater activists enamored with the Bill of Rights.” It “burnished the ACLU’s prestige and certified its growing influence.”
Cose next highlights key ACLU campaigns in the 1920s, including the defense of Charlotte Anita Whitney; the campaign against criminal syndicalism laws; and the Sacco-Vanzetti case. In 1929, Baldwin took stock of the ACLU as it entered its second decade. He urged more support for “Negroes in their fight for civil rights,” as well as “for immigrants facing discrimination, for criminal defendants facing police abuse and infringements on their constitutional rights, and for the rights of American Indians”. He also emphasized the fight against unlawful searches and seizures, censorship, compulsory military training, discrimination based on race, religion, or political views, and American imperialism.
The 1930s found the ACLU denouncing the congressional hearings conducted by the newly established Special Committee to Investigate Communist Activities in the United States. To rebut charges that the ACLU itself was enabling “the communists to have an easier time in the civil war they hope to bring about,” Baldwin appeared before the Committee “under protest.” He denied the ACLU was conspiring in any communist plot and scolded the congressmen that they would be better served by investigating “those conditions which bring about protests and demands for change in our economic and political life.”
And as if to prove his point, in 1931 the ACLU released a groundbreaking Black Justice report, the “only survey of all discrimination against citizens on account of color” — the 15,000,000 blacks who suffered the most violations of their civil rights. The report criticized laws and policies barring blacks from enjoying a decent education, a fair wage, trial by their peers, the right to vote, and the right to marry outside the race — presaging reforms that would take decades for Congress and the Supreme Court to achieve. Cose describes the report as “astonishingly blunt for the era and a clear reflection of Baldwin’s intent to expand the ACLU’s agenda,” setting the stage for “the ACLU’s deep involvement in one of the most explosive racial dramas of the day.”
On March 25, 1931, nine black youths, some of whom were juveniles and all of whom would become known as the Scottsboro Boys, were arrested on charges of having raped two white girls on a freight train in Alabama. They were quickly indicted by a grand jury on March 30 and were on trial on April 6; two were convicted on April 7; within two days, eight stood convicted and sentenced to death. (The jury deadlocked on the ninth, a 14-year-old boy, with most of the jurors holding out for the death penalty.) Two ACLU lawyers, Arthur Garfield Hays and Clarence Darrow, were briefly involved but, due to political infighting among other organizations, they both withdrew. Due to serious problems with the prosecution and multiple trials and retrials, repeated appeals consumed many years. At the third trial of one of the defendants, the judge assured prospective jurors that a “belief in the Negro’s inferiority does not disqualify you for jury service.”
In December 1935, the ACLU and other civil rights organizations formed the Scottsboro Defense Committee, “which repeatedly went to court, launched public campaigns, and sought pardons for their clients,” while the defendants remained behind bars, several on death row. Eventually, at different stages, each was released, pardoned, or paroled. In 2013, the Alabama legislature passed a law allowing posthumous pardons, which were then issued to the Scottsboro Boys. Cose describes their case as “a window into the South’s unremittingly brutal system of justice, in which blacks had no rights that whites were bound to respect,” echoing the shameful words from the infamous 1857 Dred Scott decision.
In May 1938, Congress established the House Committee on Un-American Activities (HUAC), which wasted no time trying to link the ACLU to the Communist Party. While Baldwin could indignantly declare that the ACLU did not support communism, the issue of members of the Communist Party within the ACLU was a different matter that would open an embarrassing chapter in its history, which Cose recounts with revealing candor.
By 1940, a faction of the ACLU board of directors, disturbed by the Soviet invasion of Finland and the Soviet-Nazi pact, demanded that the ACLU formally disassociate itself from members of the Communist Party. One of whom, Elizabeth Gurley Flynn, had been a founder of the ACLU and was a 20-year veteran of its board. In February, the board approved a resolution that deemed it “inappropriate” for any person to serve in a governing or staff position in the ACLU “who is a member of any political organization which supports totalitarian dictatorship in any country, or who by his public declarations indicates his support of such a principle.” In an interview in The Daily Worker, Flynn stated unequivocally: “When I joined the Communist Party three years ago, I informed the directors of that fact and the ACLU chairman said they were glad to have a Communist on the board. I was re-elected to the board a year ago and my term has two years more to run. I am not quitting.”
When the board formally requested Flynn’s expulsion, she vowed to fight on “to make the ACLU a truly democratic organization so that such disgraceful compromise and red-baiting can never again occur.” She asked how the ACLU could “defend Communists in the right to teach or to hold public office if they themselves exclude me solely as a Communist?” The ACLU held a hearing on May 7, 1940, during which Flynn challenged the entire process and mounted a spirited defense. At 2:20 a.m., the board concluded its deliberation and a few hours later announced that a majority of the board had sustained the charges and voted to remove Flynn.
Three decades later, Baldwin continued to defend the decision, even boasting that membership in the organization had increased as a result of the expulsion, as if that were relevant to a matter of principle. At the time, however, prominent liberals, including I. F. Stone and Theodore Dreiser, criticized the ACLU for its “purge” which “encourage[d] the very tendencies it was intended to fight.” The ACLU, they argued, was “formed in 1920 to fight post-war hysteria. It would be a great pity if it were now to become the victim of pre-war hysteria.”
Samuel Walker agrees. In his history of the ACLU, he writes that the Flynn expulsion was “a disaster for the ACLU” and “a breach of principle” because “it both failed to placate right-wing critics, who continued to vilify the ACLU as a Communist front, and outraged the left, many of whom never let the ACLU live down the ‘trial.’” Cose calls the Flynn affair “a self-inflicted crisis that haunted the ACLU for decades.” Of course, the ACLU survived, and Cose suggests that in some respects “it emerged stronger.” But all told, he concludes that the ACLU “had lost its innocence and some of its luster.” It had “traded principle for expediency” to get HUAC off its back.
Clearly, the lesson for our time is that during periods of national turmoil, when the popular will is inflamed by calls for blind patriotism and strict obedience to the political orthodoxy of the moment, even people of good intentions may be tempted to buckle under and forgo their principles.
As the ACLU entered its third decade, it had its work cut out for it. On June 29, 1940, President Franklin Delano Roosevelt signed the Smith Act, requiring the registration and fingerprinting of all 3.5 million resident foreigners and making it a crime to be a member of any organization which advocated or taught the overthrow of the government by force. On the day Congress declared war with Japan in response to the attack on Pearl Harbor on December 7, 1941, the FBI arrested about 250 Japanese nationals throughout the United States and roughly the same number in Hawaii. The next day, the FBI arrested scores of Germans and Italians. By December 10, 2,303 “enemy aliens” had been arrested.
With the 150th anniversary of the ratification of the Bill of Rights on December 15, 1941, the ACLU took the opportunity to promote the message that repression had no place in a free society — even during war — and that “civilian defense” included “the protection of citizens’ rights against the inevitable tendencies in war-time to curtail them.” With one major exception, Cose observes that “[t]hanks in large measure to the ACLU, World War II would not see a repeat of the civil liberties mistakes of World War I.” But that exception was one of the most sweeping violations of civil liberties in American history.
Anti-Japanese prejudice, long simmering in the United States, burst to the surface. By Christmas, roughly half of the 2,971 “enemy aliens” in custody were Japanese. “The time for laughing at the foolish looking little Jap with his camera has passed,” wrote popular journalist Damon Runyon. The head of HUAC claimed he had a list of 8,000 Japanese secret agents in the United States and Hawaii — long before the tactic was popularized by Senator Joseph McCarthy. A California congressman confidently declared that no one with “any knowledge of Japanese psychology” would allow Japanese Americans their civil liberties “because it constitutes a national hazard.”
On February 19, 1942, President Roosevelt issued the infamous Executive Order 9066 authorizing the Secretary of War and select military commanders to prescribe military zones from which all persons may be excluded as deemed appropriate. Attorney General Francis Biddle acknowledged there was no evidence of treacherous behavior on the part of Japanese Americans, but he still surrendered to prejudice, claiming that “people on the Coast have a very strong feeling that the Japanese situation is dangerous.”
At first, the familiar tug of patriotic Americanism prompted a tepid response from Roger Baldwin. While calling the executive order “unprecedented and founded on no specific evidence of need,” he pledged the ACLU would not interfere “with any necessary moves to protect the West Coast areas.” Cose reports that although Baldwin and other ACLU leaders disagreed with the evacuation order, “the board majority had little appetite for attacking a key strategy of the popular war.” In its annual report, the ACLU said it was cooperating with agencies endeavoring to “resettle” Japanese Americans, but to mitigate the effects of anti-Japanese panic, it filed a brief opposing calls to strip American-born Japanese Americans of their citizenship.
On June 22, a two-thirds majority of the national ACLU board adopted what Cose calls a “compromise resolution,” acknowledging the government’s constitutional right during a war to establish military zones and to remove citizens and aliens alike, “when their presence may endanger national security,” subject to the proof of military necessity, civilian review, protection of rights, and access to hearings. In light of the compromise, the real hero of this story did not come from the upper echelon of prominent East Coast ACLU lawyers. Instead, it was Ernest Besig, a staff lawyer with the Northern California ACLU affiliate in San Francisco, who had fought for local dock workers and now had no patience for the national board’s weak approach. He had the support of the Northern California affiliate’s board, which did not embrace the national organization’s desire to placate the government. For Besig, it was also personal. Anne Kunitani, his Japanese American secretary who had worked for the ACLU affiliate, was among those forced to evacuate.
Besig was eager to find a way to challenge Roosevelt’s order. In a newspaper story he read about Fred Toyosaburo Korematsu, a 23-year-old American-born welder, who had studied chemistry at Los Angeles City College and tried to enlist in the US Navy in 1940 but was rejected due to a gastric ulcer. Korematsu was arrested on Memorial Day, 1942, for violating the exclusion order. Within days, Besig visited him in jail and offered to represent him, with the ACLU bearing all the costs. On June 18, Korematsu was released from jail after the ACLU posted a $1,000 bond, but he was arrested minutes later by military police and sent to a detention camp. Besig was not admitted to practice law in California, so he brought in a local attorney, Wayne Collins, to handle the case, while remaining closely involved.
On September 8, Korematsu was found guilty of illegally entering a military zone. He was sentenced to five years in prison (remitted to probation), given a fine of $5,000, and immediately returned to the detention center. On appeal, Collins argued that internment was a “statutory monstrosity” that “entails involuntary servitude” in violation of the 13th Amendment. But on December 2, the Ninth Circuit Court of Appeals upheld Korematsu’s conviction, setting the stage for an appeal to the Supreme Court.
Meanwhile, the ACLU affiliate in Seattle had identified Gordon Kiyoshi Hirabayashi as another potential challenger to the expulsion order. He was a 24-year-old Quaker and registered conscientious objector who attended the University of Washington. He was working for the American Friends Service Committee counseling evacuees facing internment when in May 1942 he decided to take a public stand by surrendering to the US Attorney’s office, pronouncing himself “a conscientious objector to evacuation.” The ACLU Seattle affiliate was prepared to represent him, but after the national ACLU board adopted its pro-administration resolution, the affiliate agreed to step aside, under protest, and it organized a separate defense fund with non-ACLU lawyers.
In Los Angeles, A. L. (Abraham Lincoln) Wirin, legal director of the Southern California affiliate, was also wrestling with how to fight the exclusion order. He had testified before Congress that “[w]e must not, in the fighting, lose the freedoms for which we fight.” In April 1942, this time with Baldwin’s backing, Wirin took up the case of Ernest Kinzo Wakayama, a former postal worker and World War I veteran, and his wife Toki, both of whom were incarcerated in the Santa Anita Assembly Center. Wirin filed suit and argued before a three-judge federal panel that “continued detention of Japanese-American citizens is not justified or warranted under the American system of justice.” The judges granted a writ of habeas corpus empowering the Wakayamas to appear in court to argue the merits of their case. But life under internment had so worn them down — including Ernest’s arrest for conducting a meeting in the camp in the Japanese language — that they gave up the fight and applied for repatriation to Japan.
Eventually, the legal challenges to the wartime measures reached the Supreme Court. On June 21, 1943, the Court unanimously ruled against Hirabayashi, holding that Congress and the president had acted under their broad constitutional authority in time of war. Justice Frank Murphy, in a concurring opinion that read more like a dissent, called the ruling the first time as far as he was aware “that we have sustained a substantial restriction of the personal liberty of citizens of the United States based on the accident of race or ancestry,” thereby creating “two classes of citizens,” going to “the very brink of constitutional power.” Justice William O. Douglas also could muster no more than a mild concurring opinion, complaining about detention “on account of ancestry,” but concluding that the exigencies of war made the military’s discriminatory policy justifiable. Support of government policy by liberal justices like Murphy and Douglas despite their awareness of obvious discrimination helps put the compromises made by the ACLU in context. Though their responses were inexcusable, the willingness of the justices and the ACLU to set aside their principles reveals just how powerful the forces of fear, hysteria, and conformity are in times of national crisis, even among people who should know better.
On December 18, 1944, as the Allied victory seemed imminent, the Court, no longer unanimous, upheld Korematsu’s conviction and detention in a 6-3 decision. But this time, Justice Owen Roberts issued a powerful dissent, calling the government’s actions a “clear violation” of the Constitution by punishing a citizen “solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition toward the United States.” And now Justice Murphy found the strength to issue a full-throated dissent, writing that the internment policy went over “the very brink of constitutional power” and tumbled into “the ugly abyss of racism,” marking the first time the word “racism” was used in a Supreme Court decision.
Forty-four years later, President Ronald Reagan signed the Civil Liberties Act of 1988, formally apologizing for the treatment of Japanese Americans during World War II, including the internment of 120,000 Japanese-Americans (roughly two-thirds of whom were American citizens) and awarding reparations of $20,000 to each internee or his or her heirs. In 1998, President Bill Clinton awarded Korematsu the Presidential Medal of Freedom. And in 2018, in the course of upholding the third version of President Trump’s travel ban — and prompted by a stinging dissent from Justice Sonia Sotomayor who pointed to “stark parallels” between the travel ban and the now discredited exclusion order — Chief Justice John Roberts, speaking for the majority, formally overruled the Korematsu decision.
Throughout the 1940s, the ACLU continued to press for racial equality. ACLU lawyers represented a black inductee who refused to serve in a segregated military and black soldiers who were discharged as “undesirables.” In 1942, the chair of the ACLU named novelist Pearl Buck to head a standing committee focused on racial discrimination in the military. The ACLU annual report that year condemned the exclusion of blacks “from many branches of the armed forces and from defense industries.” In 1943, Buck and the ACLU established a continuing Conference Against Negro Discrimination, which attracted 26 national organizations. These and other efforts led to President Harry Truman signing an executive order on July 26, 1948, prohibiting discrimination in the US military. Further, earlier in 1948, the Supreme Court, in Shelley v. Kraemer, unanimously struck down racially exclusionary covenants in land contracts. The ACLU had filed an amicus brief in that case, and Baldwin declared that finally the “United States is alert as never before to the evils of race discrimination and segregation.”
But the late 1940s would again embroil the ACLU in the incipient Red Scare, against the backdrop of increasing tensions with the Soviet Union. The ACLU’s 1947–1948 annual report criticized the “irresponsible antics” of HUAC that contributed to “the hysteria against everything conceived to be Communist.” In that atmosphere, 12 members of the national board of the Communist Party were indicted under the Smith Act, formally known as the Alien Registration Act of 1940, which prohibited advocating the violent overthrow of the government. In 1949, despite the absence of any evidence of any overt act to violently overthrow the country, 11 of the defendants were found guilty.
In a lengthy article entitled “Free Speech Works Both Ways,” Baldwin began by denouncing American communists as “servants of a police-state philosophy opposed to every principle of what we regard as liberty.” But then he complained that under repressive government policy, “[t]o get at the Communists, we have adopted unprecedented and sweeping loyalty tests, not only of all federal employees and workers in firms contracting with the government, but of teachers and public employees in many states and registrants for the draft.” Baldwin noted that the attorney general had named more than 150 organizations as “subversive,” and he argued that in a democracy the response to the expression of communist ideas was “more free speech — with those of us who believe in democracy speaking out loud and clear.” It would take eight years for the Supreme Court to agree with the ACLU. In a 6-1 decision, in Yates v. United States the Court reversed the convictions. In a concurring opinion, Justice Hugo Black wrote, “Unless there is complete freedom for expression of all ideas, whether we like them or not, concerning the way government should be run and who shall run it, I doubt if any views, in the long run, can be secured against the censor.”
In January 1950, the ACLU’s 30th anniversary, Roger Baldwin, at 65, stepped down as executive director. The organization now had offices or local affiliates in Northern and Southern California, Connecticut, Illinois, Iowa, Maryland, Massachusetts, Michigan, Missouri, New York, Ohio, Pennsylvania, and Washington State, with roughly a thousand lawyers on a roster it could call on for help. According to its annual report, “[n]ever in our thirty years were the obligations so heavy, nor the stakes for the Union and all democratic forces so high.”
The 1950s found America in the throes of what Cose calls “a Red Panic” as Senator Joseph McCarthy capitalized on yet another period of fear of Russia abroad and communists at home. The ACLU’s 1950 annual report warned about the “pervasive social atmosphere of fear and intolerance” which had hit close to home when McCarthy falsely accused a former judge and ACLU board member of involvement with some 28 communist-linked organizations. In 1953, McCarthy hauled New York Post editor and ACLU board member James Wechsler before his Senate committee for closed-door sessions to investigate Wechsler’s alleged communist “leanings” and the books he had written.
McCarthy also targeted ACLU board member Corliss Lamont, a philosopher and former chairman of the National Council of American-Soviet Friendship. The ACLU backed Lamont’s refusal to answer McCarthy’s questions in a closed hearing on the grounds that they were irrelevant or infringed on his rights under the First Amendment. But Lamont withdrew from the ACLU when in March 1954 it criticized the ideology of the American Communist movement. The ACLU vaguely supported the government’s right to “seek out and punish lawbreakers,” while rejecting the punishment of “any person, Communist or other, without due process of law and procedure.” The ACLU defended itself, declaring that it would continue “to oppose tyrannical Soviet Communism as the chief threat to our civil liberties from the outside, and ‘McCarthyism’ as the chief threat to our civil liberties on the inside.”
Meanwhile, 1954 would stand out as the year the Supreme Court decided Brown v. Board of Education. The case was won by lawyers from the NAACP, led by Thurgood Marshall, but the ACLU filed an influential amicus brief that cited social science journals and books pointing out the damaging impact of segregation on school children. Looking forward to 1957, the ACLU announced that it was seeking “to broaden our organization in the South in order to provide new support for the national campaign against discrimination.”
To signal how serious the ACLU was about the battle for civil rights, in 1963 it opened a Southern regional office under the leadership of Charles Morgan Jr., a 33-year-old “rising star of the Alabama bar.” In case after case, Morgan and his team pursued “Operation Southern Justice,” challenging segregation in law enforcement and the judicial system. He also focused his efforts on defending anti–Vietnam War activities at the outset of the growing antiwar movement. In 1967, he defended Dr. Howard Levy, who faced a court-martial for refusing to use his medical skills to train Green Berets to fight in Vietnam. Morgan argued that under the Nuremberg principles, a soldier must disobey an order which would require him to commit a war crime. Morgan argued the case all the way to the Supreme Court, which in 1974 upheld Levy’s conviction. Morgan did win the votes of three dissenters, who delivered a withering critique of the Uniform Code of Military Justice as unconstitutionally vague and uncertain.
As the unpopularity of the Vietnam War grew, the ACLU reversed course. After first voting not to represent antiwar dissidents, the ACLU national board removed that limitation in February 1968. “Increasingly, the ACLU would represent actual clients — as opposed to ideals,” Cose writes, “and, in doing so, it would risk getting its hands dirtier than some traditionalists considered appropriate.” For example, Morgan and the ACLU made few friends by publicly arguing that Lieutenant William Calley, charged in the My Lai Massacre in which soldiers under his command murdered several hundred Vietnamese civilians, could not get a fair trial given overwhelming negative pretrial publicity.
In other areas as well, the ACLU came under fire from its own members. In September 1968, when Governor George Wallace, an avowed segregationist, was denied a permit to speak at Shea Stadium in New York, the ACLU protested that “government officials must not interfere with freedom of speech.” The ACLU filed an amicus brief supporting Wallace’s right to speak, signed by Eleanor Holmes Norton, the ACLU’s black assistant legal director. On October 1, a judge ruled in Wallace’s favor, calling the city’s decision “arbitrary and capricious,” “patently unreasonable,” and in violation of both the state and federal constitutions. And in November 1968, the Supreme Court, in a unanimous decision, sided with the ACLU and ruled that an injunction preventing the National States Rights Party, an organization espousing racist views, from holding a rally in Somerset County, Maryland, was an unconstitutional prior restraint suppressing “the precise freedom which the First Amendment sought to protect against abridgement.”
The ACLU had never given up on the quest for racial justice. In 1963, it secured lawyers for Richard and Mildred Loving, an interracial couple who had been married in the District of Columbia in 1958 but were later charged with violating Virginia’s anti-miscegenation law. In the Supreme Court, the ACLU argued that the case presented an ideal opportunity “to strike down the last remnants of legalized slavery in our country.” On June 12, 1967, in the poignantly named decision Loving v. Virginia, the Court unanimously ruled in the couple’s favor, holding that under “our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.”
In the 1960s, ACLU lawyers scored a series of landmark victories in the Supreme Court in the field of criminal justice. In Escobedo v. Illinois (1964), the Court ruled 5-4 that once the criminal process moves from investigatory to accusatory, a suspect must be allowed a lawyer. In Miranda v. Arizona (1966), in another 5-4 decision, the Court held that a confession obtained without advising the suspect of his constitutional rights (which would become widely known as the “Miranda warnings”), violated the right against self-incrimination protected by the Fifth Amendment. And in In re Gault (1967), in an 8-1 decision, the Court ruled that a juvenile had a constitutional right to an attorney.
On January 21, 1970, the ACLU celebrated its 50th anniversary and Roger Baldwin’s 86th birthday. At a gala celebration at New York’s Americana Hotel, former Justice Arthur Goldberg praised Baldwin and the ACLU for their dedication to keeping America “free and equal.” The New York Times, which had belittled the ACLU at its founding, now recognized that in the previous six years it had won 40 of 46 cases before the Supreme Court, “which speaks well for the Supreme Court as well as the ACLU.” Later that year, Aryeh Neier was selected as the new executive director. He now presided over a sprawling organization with 48 affiliates in 45 states and the District of Columbia, with 5,000 participating attorneys who had litigated about 4,000 cases in the previous year and played a direct or amicus role in about 20 percent of all Supreme Court cases.
On June 13, 1971, The New York Times published the first installment of the Pentagon Papers, a 47-volume secret Defense Department study of decision-making during the Vietnam War which whistleblower Daniel Ellsberg had leaked to the press. The next day, the Nixon administration went to court to halt further publication of the documents. The ACLU immediately filed an amicus brief on behalf of itself and 27 members of Congress, arguing against the prior restraint the government was seeking. On June 30, the Supreme Court ruled 6-3 that the government had failed to overcome the heavy presumption of unconstitutionality of prior restraints on free expression.
Later in 1971, the ACLU broke with long-standing precedent and publicly opposed the nomination of William Rehnquist to the Supreme Court, declaring that “it would be a betrayal of the principles of our Constitution to entrust their interpretation to a person who has devoted himself to undermining those principles.” On December 10, the Senate confirmed Rehnquist by a vote of 68 to 26.
In 1972, Ruth Bader Ginsburg became the first female full professor at Columbia Law School in its 114-year history and the director of the ACLU’s Women’s Rights Project, where she established a prestigious career building a series of Supreme Court victories securing women’s rights.
The June 17, 1972, Watergate break-in by operatives of Nixon’s reelection campaign and the subsequent cover-up forced the ACLU to consider whether to take a position in Nixon’s impeachment. As early as 1971, the Southern California affiliate had already called for Nixon’s impeachment for his unconstitutional bombing of Cambodia and Laos and for “committing other abuses of power.” In July 1973, despite some concerns that supporting impeachment would politicize the ACLU, when the Southern California affiliate put forth a draft impeachment resolution, the national board took up the matter, and in September, by a unanimous vote of 49 to zero, adopted a resolution urging the House to initiate impeachment proceedings. On Sunday, October 14, the ACLU took out a full-page ad in The New York Times headlined, “Why it is necessary to impeach President Nixon. And how it can be done.” The ad went beyond Watergate and described a series of civil liberties violations committed by Nixon that amounted to “a system of presidential power unlimited by the Bill of Rights.” Despite the unanimous board resolution, not everyone agreed. Baldwin, now 89 years old but always outspoken, complained that what the ACLU was doing was an “emotional crusade” that “isn’t like our style, it looks a bit hysterical.” On August 8, 1974, Nixon resigned.
Supporting Nixon’s impeachment was not the only thing Baldwin objected to. In December 1967, at the behest of George Slaff, a national board member and chair of the Southern California affiliate, the ACLU had replaced the 1940 resolution that had led to the expulsion of Elizabeth Gurley Flynn with one that allowed leadership in the organization if one was committed to its objectives, rejected discrimination, and accepted “the principles of political democracy.” Over the objections of Baldwin and several influential board members, in April 1976 the national board voted 32 to 18 to rescind Flynn’s exclusion.
In 1977, the ACLU confronted a constitutional challenge that to this day exemplifies the foundation on which the entire organization’s mission depends. Should the ACLU represent a group of American Nazis who planned to conduct a march through the streets of Skokie, Illinois, where an estimated 7,000 survivors of the Holocaust lived? Within the ACLU, defending Nazis was not controversial. In 1934, in its pamphlet entitled Shall We Defend Free Speech for Nazis in America? the ACLU declared that it does not “choose our clients. Lawless authorities denying their rights choose them for us.” Yet some outside the ACLU questioned its involvement. The “Skokie affair clearly represents a major turn for the worse in the organization’s relations with the Jewish community,” reported The New York Jewish Week. The article quoted a Jewish lawyer saying, “American Jews are simply not going to accept the view that justice is somehow being served by helping Nazis parade through a Jewish neighborhood.”
To counter the criticism, 60 prominent Jews signed a statement expressing disgust for the Nazis but supporting the preservation of “the rights of free expression.” When Skokie officials threw various legal roadblocks in the way of the march, the ACLU went to court in support of the march and at the same time tried to educate the public that the organization was defending the First Amendment, not the ideas espoused by the Nazis. David Hamlin, the executive director of the Illinois affiliate, wrote in an op-ed in the Chicago Tribune that if the Nazis could legally be blocked because Skokie residents were offended by their Swastikas and antisemitic messages, public officials in Selma, Alabama, “could have used the Skokie theory to prevent the famous civil rights march in the sixties,” because Selma residents were likewise offended by the protesters’ message condemning segregation and racism. In January 1978, state and federal courts accepted the ACLU’s arguments and struck down the Skokie ordinances as unconstitutional. But the affiliate estimated it lost about 25 percent of its local membership and an internal national report indicated revenues for 1977 were down $500,000. Ironically, having won the right to march in Skokie, the Nazis eventually chose instead to hold a rally elsewhere in Chicago.
Meanwhile, in the 1970s the ACLU suffered a different kind of blow to its reputation. The ACLU’s own Freedom of Information request unearthed a trove of documents which, according to Executive Director Neier, “contained correspondence from ACLU officials to their contacts in the FBI naming those within the ACLU they suspected of communist associations.” It turns out that for seven years in the 1950s, several ACLU officials gave the FBI information about the organization, its activities, and some of its members. Neier went public condemning the contacts with the FBI as “wrong, inexcusable and destructive of civil liberties” and “contrary to the way the ACLU operates today.” The New York Times ran a sympathetic editorial, recalling the climate of the 1950s and “the situation that confronted dedicated people,” concluding that “[c]ondemnation by hindsight is too simple a judgment.” At about the same time, the Washington Post reported that from the founding of the ACLU in 1920, the FBI had infiltrated the organization, keeping files on leading members such as Felix Frankfurter and Helen Keller, and obtaining reports on closed meetings, membership lists, and financial contributions. The evidence of such early surveillance and infiltration suggests that the FBI may have anticipated the ACLU’s potential impact far sooner than other observers.
In the aftermath of the Skokie controversy and the FBI revelations, in April 1978, Neier announced his resignation, having served as executive director for eight challenging years. He cited accomplishments during his tenure in the area of civil rights; antiwar protests; abortion rights; extending civil liberties protections to millions in prison, mental hospitals, and training schools for children; defending the right to privacy; and opposing government secrecy. In an interview with Cose, Neier denied speculation that the Skokie case drove him to resign. “I enjoyed dealing with the Skokie crisis” and “speaking and writing about First Amendment issues,” he said. It was “the day-to-day grind of raising large numbers of foundation grants that I wished to relinquish.”
Neier was replaced by Ira Glasser, who Cose describes as “ebullient” and “casual.” After teaching and working in journalism, Glasser joined the New York ACLU affiliate in 1967 and succeeded Neier as its director in 1970. In September 1978, the national board voted 60 to 13 to make him executive director. He would serve for 23 years, becoming a dynamic, visible, and outspoken advocate for the advancement of civil liberties.
One of the most serious and immediate challenges Glasser and the ACLU faced was the newly emergent religious right. Televangelist Jerry Falwell’s Moral Majority was organized in June 1979, and by the following January he could gather more than 3,000 worshippers, calling for “a holy war.” In December, the ACLU took out a full-page ad in The New York Times warning: “If the Moral Majority Has Its Way, You’d Better Start Praying.” As Cose describes it, the “ACLU argued that the Moral Majority wanted to force children to pray in school, believed birth control was sinful, thought abortion was wrong and that homosexuality should be punished, and wanted the law to ‘keep women in their place.’” That just about describes what the ACLU advocacy and litigation strategy fought against throughout the 1980s and beyond.
On August 26, 1981, Roger Baldwin died of heart failure at the age of 97. Cose doesn’t pause to assess Baldwin’s legacy; he leaves it to others. Glasser put it best, praising Baldwin as “in a way one of our country’s founding fathers. They wrote the Constitution and he invented a way to enforce it.” Not without his faults, particularly when it came to never acknowledging the mistakes the ACLU made when it lost its nerve in the face of hysteria and red-baiting, Baldwin deserves immense credit for recognizing a hundred years ago that, powerful local, state, and federal governments, left unchecked, will sweep aside individual rights to achieve whatever political goals they seek, always claiming to serve the national interest. Baldwin and the men and women who shared his vision realized far earlier than most that constitutional rights were not self-effectuating but needed an independent, resourceful, dedicated, and courageous champion; that the government could not be trusted to restrain itself; and that the courts and the public needed to be educated to understand the vital role the protection of constitutional rights plays in a democracy. Baldwin died knowing what he and his allies had created in 1920 had survived and grown for over 60 years.
Glasser and his colleagues understood that they had a lot of work to do if they were going to sustain Baldwin’s legacy. In October 1982, the ACLU published a 64-page report, Civil Liberties in Reagan’s America, warning that “[n]ever in its 62-year history has the American Civil Liberties Union grappled with a wider range of critical civil liberties issues.” Cose does a good job tracing the ACLU’s robust agenda in the areas of voting rights, racial discrimination, and free speech.
In July 1987, President Reagan nominated arch-conservative former Yale law professor Robert Bork to replace retiring Supreme Court Justice Lewis F. Powell. Given the threat to civil liberties that Bork posed, the ACLU was forced for the first time since Rehnquist to revisit its standing policy prohibiting the organization from endorsing or opposing candidates for elective or appointive office. At the conclusion of a special two-day board meeting, the ACLU revised its policy in order to permit the organization, by a 60 percent supermajority vote, to oppose any nominee who would “fundamentally jeopardize the Supreme Court’s critical and unique role in protecting civil liberties.” Then the board voted 61 to 3 to oppose Bork.
Over the course of Bork’s contentious nomination battle, the ACLU prepared a 47-page report documenting his views, a separate compendium of his writings, a 58-page statement and analysis of his record and testimony, and, just for good measure, a list of the landmark Supreme Court decisions he had rejected. On October 23, 1987, by the largest margin of any nominee ever rejected in over 200 years, the Senate voted 58 to 42 against Bork. The following February, Anthony Kennedy, a well-respected US Court of Appeals judge from Sacramento, was unanimously confirmed.
In 1983, Fred Korematsu, Gordon Hirabayashi, and other victims of the Japanese internment, sought exoneration based on evidence that the government had concealed information from the courts that refuted claims that Japanese Americans posed an internal security threat. The evidence had been discovered by Peter Irons, a lawyer, historian, and former ACLU board member. The ACLU supported these efforts in various ways, including testimony before Congress and an amicus brief drawing attention to “the acts of concealment by the War Department.” In November 1983, a federal judge ruled in Korematsu’s favor, pronouncing the internment illegal, having been based on racism, distortions, fabricated intelligence, false perceptions, and lies.
During the 1988 presidential campaign, the Republican candidate, Vice President George H. W. Bush, attacked the Democratic candidate, Massachusetts Governor Michael Dukakis, for being a member of the ACLU. Dukakis lost the election, but the ACLU raised roughly $400,000 through a special appeal to members. Internally, Glasser raised concerns that Bush’s attacks may have hurt the ACLU’s reputation, prompting the organization to launch a public relations campaign to correct lingering misconceptions.
On July 1, 1991, Bush nominated Clarence Thomas, a Yale Law graduate and recent appointment to the US Circuit Court of Appeals, to fill the vacancy created by the retirement of Justice Thurgood Marshall. After the NAACP and AFL-CIO announced their opposition, Ramona Ripston, executive director of the Southern California ACLU affiliate, and other organizations denounced the nomination. The ACLU commissioned a report on Thomas, in which Nadine Strossen, a law professor who had been elected ACLU board president earlier in the year, wrote that based on initial research Thomas had not “exhibited much concern for civil liberties and civil rights.” The ACLU gathered a group of Washington lawyers, who issued a 92-page analysis that highlighted Thomas’s criticism of the landmark Brown v. Board of Education school desegregation decision. Prior to a special meeting of the board, Glasser argued that, bad as Thomas might be, he was no Bork. A majority of the board voted to oppose Thomas, but it was one vote short of the 60 percent supermajority required for official opposition. On October 15, Thomas was confirmed by the Senate by a vote of 52-48.
With the election of Bill Clinton as president, the ACLU still needed to remain vigilant to abridgments of constitutional rights. Following the Oklahoma City bombing on April 19, 1995, killing 168 people and injuring nearly 700 more, Congress, with Clinton’s backing, moved quickly to pass legislation that the ACLU considered “constitutionally problematic” because it essentially eliminated the right of criminal defendants to confront evidence against them and broadened electronic surveillance and intelligence gathering.
In February 1996, the ACLU returned to one of its seminal issues, defending freedom of expression. Congress had passed, and Clinton had signed, the Communications Decency Act, criminalizing “indecent speech” on the internet. The ACLU, joined by 20 other organizations, filed suit and a week later a federal judge granted a preliminary injunction prohibiting the enforcement of the new law. A three-judge panel subsequently held a trial on June 12 and unanimously ruled in the ACLU’s favor. Glasser called it “as historic a case as we have had in our history on the First Amendment.” On June 26, 1997, the Supreme Court, 7-2, also agreed with the ACLU and found the CDA unconstitutional. For over 20 years, the decision that bears the ACLU’s name, Reno v. ACLU, has been cited by the Supreme Court and lower federal and state courts hundreds, perhaps thousands, of times in support of protecting freedom of expression on the internet.
On December 19, 1998, Congress issued Articles of Impeachment against Clinton. As the ACLU saw it, since no civil liberties issues were involved (surely to the relief of many of its members), the ACLU took no position, but it did weigh in on the issue of due process and fairness. The ACLU complained that the first article of impeachment, alleging perjury, failed to specify any single statement as false and needed to be supplemented by a bill of particulars. The ACLU was also highly critical of the investigation conducted by Independent Counsel Kenneth Starr. The ACLU used the opportunity to launch a year-long advertising campaign arguing that “the morality of a nation is measured not by what occurs in the privacy of our bedrooms or doctor’s offices or telephone conversations, but by how the government treats its people.” On February 12, 1999, the Senate, largely along party lines, failed to reach the necessary two-thirds supermajority, and Clinton was acquitted.
The ACLU reacted to the hotly contested presidential election of 2000 between Democratic candidate and Vice President Al Gore and Republican candidate and Texas Governor George W. Bush by criticizing the 5-4 Supreme Court decision that cleared the way for Bush’s election and by ramping up its defense of voting rights. Glasser condemned the fact that in the pivotal state of Florida, “black voters disproportionately were rejected.” The ACLU proceeded to file lawsuits in Georgia, Illinois, California, and Florida, alleging systematic discrimination against minority voters.
The voting rights litigation was one of Glasser’s closing acts. On June 28, 2000, he submitted his resignation effective July 1, 2001, having served in various capacities within the ACLU for 35 years. As executive director, he had dramatically increased its annual income, from $4 million in 1978 to $45 million in 1999. The search for his successor was conducted by Nadine Strossen, who had become the first women and youngest person to serve as president of the ACLU.
On September 4, 2001, Anthony Romero became the new executive director of the ACLU, and as Cose puts it, “Then the world changed.” Everything Romero anticipated in his new job was cast aside on 9/11. The terrorist attacks would catapult him and the ACLU into the national spotlight once again on the question of whether a nation in crisis demanding safety and security would uphold or sacrifice constitutional rights.
Romero, 35, the openly gay son of Puerto Rican parents, was a graduate of Princeton and Stanford Law School. He had worked for the Rockefeller Foundation before joining the Ford Foundation in 1992, where he became the organization’s director of human rights and international cooperation. The morning of 9/11 he was in Washington, DC, introducing himself to major donors and supporters. He told Cose, as part of an extensive interview cited throughout the remainder of the book, that in the following days he asked national board members and staff to resist any impulse to make political points. “Grieve the loss of life, talk about the tragedy. Do not talk about the erosion of civil liberties.” But Washington Director Laura Murphy asked Romero, “If we don’t speak up now, when are we going to speak up? This is the civil liberties crisis of our time.”
Romero didn’t have to wait long. On October 2, the USA Patriot Act was introduced in the House, and by October 26 it had been passed in both houses and signed by Bush. Murphy warned that the law “goes light-years beyond what is necessary to combat terrorism,” vastly expanding the power to conduct wiretaps and surveillance, imprison people without due process, and punish dissent. In November, the ACLU released a 72-page report, Upsetting Checks and Balances: Congressional Hostility Toward the Courts in Times of Crisis, focusing largely on how judicial review in the courts was being weakened.
In April 2002, the ACLU, representing several newspapers, won a victory for transparency when a federal court rejected the government’s decision to hold deportation hearings in secret. In August, the ruling was unanimously affirmed by a three-judge appellate panel, which declared that a “government operating in the shadow of secrecy stands in complete opposition to the society envisioned by the framers of our Constitution.” It is a remarkable testament to the persistence of the ACLU that less than a year after a devastating series of terrorist attacks on US soil killed thousands of people, it was able to convince the courts to uphold vital constitutional rights in the face of concerted government arguments citing the demands of national security. The ACLU had developed the ideas, language, and legal framework on which courts, and by extension the general public, could think differently about the importance of protecting constitutional right during a national crisis. Building on its early successes, in October the ACLU announced its “Campaign to Defend the Constitution,” with rallies and television ads, to meet the need Romero felt to “reach out to the American public and inspire discussion and debate on these issues.”
But the ACLU didn’t win all of its post-9/11 battles. In August 2002, it initially persuaded a federal judge to release the names of hundreds of Muslim men held after 9/11. Judge Gladys Kessler ruled that the “public’s interest in learning the identity of those arrested and detained is essential to verifying whether the government is operating within the bounds of law.” But then the judge stayed her order, and the following June it was overruled by the appellate court, which held that if the list fell into the hands of al-Qaeda, “the consequences could be disastrous.”
Cose reports that in December 2004,
with the nation reeling from the abuses of prisoners revealed at Abu Ghraib prison facility in Iraq earlier in the year, the ACLU won another major victory for governmental transparency, forcing the release of a trove of documents that refuted the Bush administration’s contention that the Abu Ghraib nightmare was an aberration.
Immediately following Bush’s State of the Union address in 2006, the ACLU faulted him for “failing to address civil liberties concerns about his administration’s actions since 9/11” or to answer questions raised by the “overly intrusive” use of the Patriot Act. That same week, the ACLU announced it was filing a series of Freedom of Information Act requests to obtain information on government surveillance of antiwar protestors at college campuses.
A young lawyer, Ben Wizner, hired by the ACLU’s Southern California affiliate five weeks after 9/11, would play a key role in the ACLU’s national security litigation for the next two decades. In 2002, he filed five lawsuits against four airlines for removing passengers from flights who were of Arab, Asian, Filipino, and Guyanese descent. The airlines cited “security reasons,” but Wizner argued there were no grounds other than ethnic bias. Generally, these cases ended in settlements requiring the airlines to train staff on civil rights laws. In August 2002, Wizner filed suit on behalf of two college students who were escorted out of an AMC movie theater for speaking Pashto, a language of their native Afghanistan, winning them a public apology from AMC.
In 2004, Wizner transferred to the national ACLU headquarters, where he took on several high-profile cases, including representing Khalid El-Masri, a German citizen born in Kuwait to Lebanese parents. El-Masri had been tragically mistaken for a terrorist, captured, tortured, and held in an CIA prison in Afghanistan. Cose traces El-Masri’s six-month ordeal and Wizner’s tireless efforts to vindicate his rights. The Bush administration argued that under the “state secrets privilege” — a non-statutory, court-made rule invoked to shut down cases seeking to hold the government accountable for wrongdoing — El-Masri’s case could not go to trial because it could “harm national security.” The lower courts agreed with the Justice Department, and in October 2007 the Supreme Court refused to review the case, leaving El-Masri, unquestionably an innocent victim of the US War on Terror, without any immediate remedy. (Cose later reports that in December 2012, the European Court of Human Rights awarded El-Masri 60,000 euros [approximately $78,000] for damages he had suffered at the hands of his American captors.)
The election of Barack Obama in 2008 once again prompted the ACLU to shift its stance now that someone had been elected president who appeared sympathetic to the ACLU’s concerns over civil liberties. But, as Cose explains, disappointment soon set in, as “Obama hedged on his commitment to shut down Guantanamo, adopted the Bush administration position on the state secrets privilege, and hesitated to reverse surveillance policies.” On May 21, 2009, Obama invited civil libertarians and progressives, including Romero, to the White House to explain the administration’s approach to these issues. Based on an account of the meeting published in David Klaidman’s book Kill or Capture, Cose presents a vivid description of the awkward Oval Office confrontation in which Romero told the president he was “troubled” by what he was seeing and asked whether there would be an investigation of even one case of torture committed by the Bush administration. After the meeting, Romero told the Washington Post that by continuing Bush’s policies, Obama was making them his own, and if he continued down that path, “these policies will certainly become known in the history books as the Bush-Obama doctrine.”
On March 7, 2008, the ACLU kept up the pressure by running a full-page ad in The New York Times pleading with Obama to keep his commitment to prosecute the 9/11 suspects in civilian courts, rather than military tribunals. The ad pulled no punches, showing a panel of four photographs depicting a smiling Obama morphing into a smiling Bush. That June, at the annual meeting of the progressive organization Campaign for America’s Future, Romero said, in off-the-cuff remarks, that he was “disgusted with this president,” and proceeded to list how, over the preceding 18 months, Obama had perpetuated Bush’s policies and failed to prosecute any criminal acts committed by the previous administration.
In September 2010, the Obama Justice Department, which, as Romero feared, had by then fully embraced the Bush position on the state secrets privilege, succeeded in overturning an earlier ACLU victory that would have allowed litigation to go forward challenging the CIA’s “rendition” program. In May 2011, the Supreme Court refused, without comment, to review the case, foreclosing another avenue the ACLU had persistently pursued to publicly expose the scandal of the CIA kidnaping detainees and sending them to other countries to be tortured.
Cose also describes in detail the little-known story of how the ACLU came to represent Edward Snowden. In January 2013, Wizner, who had recently been promoted to direct the newly created ACLU Speech, Privacy, and Technology Project, met with documentary filmmaker Laura Poitras. She told him about a senior US intelligence official who called himself “Citizenfour,” who was interested in sharing important information he wanted the American people to know. On June 6, 2013, journalist Glenn Greenwald, writing in the Guardian, revealed that based on an undisclosed source, the National Security Agency was currently collecting telephone records on millions of Americans. The next day Greenwald revealed that through a secret program called PRISM, the NSA also had access to personal information held by Google, Facebook, and other internet giants. On June 9, Greenwald revealed that Edward Snowden was his source. The disclosure was made at Snowden’s request. “I have no intention of hiding who I am because I know I have done nothing wrong.”
Over the July 4 weekend, Greenwald and Poitras arranged for Wizner and Snowden to talk, while Wizner was vacationing in Honolulu. Snowden wanted the ACLU to represent him. Wizner felt it was incumbent on him to tell Snowden there could be a conflict because it might be in the ACLU’s interest for certain things to be published that could increase Snowden’s criminal jeopardy. Snowden replied, “The whole reason why I did what I did was to empower groups like the ACLU to be able to get into the courts, go to Congress and seek reform, seek accountability.” Surprisingly, Snowden asked whether, as a result of his actions, the ACLU now had “standing.” Wizner wasn’t expecting such a question from a layman.
As it turned out, because the ACLU was a customer of Verizon Business Network, one of the companies Snowden revealed was cooperating with the NSA, the ACLU now did indeed have standing to sue as a plaintiff in its own name. Two years later, in ACLU v. Clapper, the Second Circuit Court of Appeals not only upheld the ACLU’s standing but went on to rule that the program Snowden had revealed was illegal and not authorized by Congress. In January 2014, Wizner and Romero met Snowden in Moscow, where he had sought asylum after the Obama administration charged him with violating the infamous Espionage Act of 1917, one of the very laws that had prompted the creation of the ACLU in the first place. On May 7, 2015, a three-judge panel of the US Circuit Court of Appeals for the Second Circuit upheld the ACLU’s position in ACLU v. Clapper. Cose notes that without Snowden’s revelations, the ACLU would not have been able to expose this illegal program. “[E]ven some of Snowden’s harshest critics,” Cose points out, “concede that he launched a much-needed discussion on the necessity and ethics of mass surveillance.”
When Donald Trump became the Republican Party’s presidential nominee, the ACLU had never opposed a presidential candidate (or in fact any candidate for elective office) and decided not to do so in the 2016 election. However, it hardly remained silent. Exercising its now well-established role as an expert on legal and constitutional matters, in July 2016, the ACLU issued a comprehensive report entitled Donald Trump: A One-Man Constitutional Crisis, which warned that Trump’s proposals on immigration, torture, Muslims, and free speech “would blatantly violate the inalienable rights guaranteed by the Constitution, federal and international law, and the basic norms of a free and decent society.”
On November 9, 2016, the day Donald Trump was elected president of the United States, the ACLU publicly urged him to reconsider and change course on his most dangerous campaign promises. The following Friday, the organization took a full-page ad in The New York Times warning Trump that “[o]ur staff of litigators and activists in every state, thousands of volunteers, and millions of supporters stand ready to fight against any encroachment on our cherished freedoms and rights.” As Cose sees it, the ACLU had opposed other presidents, but “never previously, in its nearly one-hundred-year history, had it effectively declared war on a president before he took office.” Perhaps the better wartime analogy is that since Trump had declared war on the Constitution, and the ACLU announced that it was forming a resistance cell. Cose describes how the ACLU kept its promise by filing hundreds of lawsuits against the Trump administration and mounting a relentless series of advocacy campaigns and grassroots activities.
In 2017, as the ACLU battled Trump’s Muslim ban in courts across the country, attention focused on racist rallies taking place in Charlottesville, Virginia. Neo-Nazi Jason Kessler, on behalf of a collection of KKK, alt-right, and other white supremacist organizations, announced a “Unite the Right” rally on August 11 and 12, 2017, in Emancipation Park to protest the planned removal of the notorious statue of Confederate Army general Robert E. Lee. The City of Charlottesville agreed to grant a permit to Kessler to meet at McIntire Park, about a mile from the Lee statue, instead of Emancipation Park. On August 8, the Virginia ACLU affiliate and the Rutherford Institute, a local civil liberties organization, wrote a letter on Kessler’s behalf to the city warning that moving the rally would violate Kessler’s free speech rights. When the city did not relent, the ACLU and Rutherford filed a federal lawsuit and a district judge granted a preliminary injunction against the city.
The protest rally went forward at Emancipation Park on August 12. Cose describes it as “toxic” with some protestors “dressed for battle, carrying shields, clubs, and helmets. Many flaunted swastikas and confederate flags. Repeated clashes between hate-mongers and counter-protestors led Governor Terry McAuliffe to declare a state of emergency. Police forced the mob to disperse.” Around 2:00 p.m., James Alex Fields Jr. plowed his car into a group of counterprotesters, killing Heather Heyer, a 32-year-old paralegal.
As the nation watched Trump describe how there were “some very fine people on both sides,” the ACLU engaged in serious soul-searching about its role in the violent protest. According to Cose, the ACLU was “long-accustomed to fallout from defending the rights of the outrageously bigoted and temperamentally cruel, but this time someone had died” and “some of the criticism was coming from within the ACLU itself.”
K-Sue Park, a Harvard Law School graduate and former ACLU volunteer, argued in a New York Times op-ed that there was no equivalence in defending right-wing and left-wing speech and that the ACLU “perpetuates a misguided theory that all radical views are equal.” In a letter to Romero and other members of ACLU leadership, 334 ACLU staffers affirmed their collective belief in “the fundamental rights to freedom of speech and peaceful protest” even for white supremacists but questioned why the ACLU “must always represent white supremacists when they seek our assistance in free speech cases.”
At a biennial leadership conference in September 2017, the ACLU invited Charles Lawrence, a law professor at the University of Hawai‘i, to speak on a panel addressing the Charlottesville controversy. He argued that the speech of the alt-right should not be legitimized by the ACLU’s legal representation. Acknowledging the need to protect “all ideas,” Lawrence asked “what if this particular idea, white supremacy, Nazism, negates my humanity, asserts my non-citizenship, excludes me from democracy’s conversation, calls for my extermination, makes possible and then justifies the murder of my son or daughter?”
At the same conference, David Goldberger, the ACLU lawyer who had represented the Nazis in Skokie, received an award for “outstanding lifetime contributions to civil liberties.” In his acceptance speech, he rejected the view that “the pain experienced by racial minorities when white nationalists exercise their right to freedom of speech” meant the ACLU shouldn’t represent them in court. He said that he and other Jews were willing to tolerate the pain of the Nazis marching peacefully in Skokie “because protection of freedom of speech in a democracy was more important.”
David Cole, ACLU national legal director, explained to Cose that the organization spends more time and resources on civil rights than free speech, but because no other attorney or organization has the experience in such cases, it would be “deeply harmful to the ACLU, to its reputation, and in the long run, to the First Amendment,” if the ACLU decided it would never represent white supremacists’ speech rights.
Eventually, the ACLU adopted a set of “case selection guidelines” in the event of “conflicts between competing values and priorities,” which lists 14 factors. Aside from the impact of the litigation and likelihood of prevailing, the factors include the potential impact on ACLU credibility; the availability of other competent counsel; the drain on resources; and any likely harm to important ACLU relationships. In free speech cases, if speakers intend to engage in violence or carry weapons they are automatically disqualified from legal representation by the ACLU. Other factors include the impact of the speech or its suppression on social justice work; the ACLU’s ability to distance itself from the message of the speaker; and the ACLU’s ability to mitigate harm associated with the speech.
On the issue of immigration, Cose describes how the ACLU began to energetically respond in May 2018 to Trump’s provocative policy of separating families on the Southern border, first by obtaining critical documents through an open records lawsuit (which served as source information for national news stories) and by filing a series of lawsuits. In one ACLU case filed in San Diego, a federal judge denied the Trump administration’s motion to dismiss, saying the government’s conduct “shocks the conscience” and “violates Plaintiff’s constitutional right to family integrity.”
On July 9, 2018, Trump nominated Brett Kavanaugh to serve on the Supreme Court. At first, the ACLU was not inclined to oppose the nomination, until professor Christine Blasey Ford accused Kavanaugh of sexual assault. On September 29, the ACLU announced that its board had made a “rare exception” to its long-standing policy of neutrality in order to oppose the nomination, because “[w]e cannot remain silent.” It then launched a million-dollar anti-Kavanaugh media campaign featuring TV ads in selected markets. On October 6, by a 50-48 vote, the closest in over a century, the Senate confirmed Kavanaugh’s nomination.
Cose observes that support for the ACLU soared in reaction to Trump’s election and his presidency. Romero told Cose it has been “agonizing but also exhilarating.” By early 2019, the ACLU claimed “1.85 million ‘card-carrying’ members, more than four times the 400,000 reported in 2016.” It claimed annual revenue approaching $400 million, almost twice what it had seen in 2016. And during the same period, the national staff had grown from 335 to 550 and affiliate staff from 774 to 1,180. According to Cole, while Trump “is a unique challenge to people who believe in civil rights and civil liberties,” he has “never seen before in this country the level of citizen engagement in defense of civil rights and civil liberties.”
Unfortunately, Cose does not examine the “citizen engagement” that the ACLU has organized during the Trump presidency, particularly since the development of national resistance is such a remarkable chapter in the ACLU’s modern history. Admittedly, at the outset, Cose disclaims any attempt to describe what the 52 ACLU affiliates have done at the grassroots level. (“It would take a book just to tell their story. This is not that book.”) But even on Cose’s own terms, it is an oversight to ignore the initiative called People Power that the national ACLU organized to harness and nurture the “level of citizen engagement” Cole applauded.
Announced in a nationwide online broadcast shortly after Trump was elected, People Power calls itself the “ACLU’s grassroots army.” Three years in, according to its website, volunteers with People Power have organized 12,735 events, made 1,251,703 phone calls, and sent 6,786,443 texts advocating on the entire gamut of threats to civil liberties and civil rights posed by Trump’s presidency.
Instead of ending with any overarching look at how that “little group of malcontents” and “troublesome folk” created a nationwide organization that has played a pivotal role in virtually every important constitutional battle of the last hundred years, Cose concludes his book with a short chapter entitled “Reflections,” sketching out his own perspective on the state of the nation.
Cose is frankly pessimistic. He complains that “made-up facts are widely deemed to be more credible than the truth.” And he worries that it is now all but impossible to accept Brandeis’s expectation to “avert the evil by the processes of education” that “falsehoods and fallacies” can wreak on society. “[I]nstead of the Brandeisian model of rational decision-making,” Cose writes, “we are left with a model in which preconceptions, repetition, fear, and skillfully presented propaganda pretty much trump everything — and also leave us frightfully open to foreign manipulation.”
No one can ignore the record of lies Trump has shamefully accumulated. Cose cites Washington Post tracking that indicates Trump made 13,435 false or misleading claims in his first 1,000 days. (As of late May, according to the Washington Post, in his 1,226 days in office, Trump made 19,127 false and misleading claims.) And in addition to attacks on the truth, no one can ignore Trump’s unrelenting attacks on freedom the press, the rule of law, women, Muslims, immigrants, people with disabilities, victims of racism, and even science itself.
Curiously, however, Cose’s own history of the ACLU undermines his claim that “neither the nation’s founders, Brandeis, or Baldwin ever envisioned anything remotely like the situation we have today.” In fact, the founders fought tyranny and despotism and crafted a Constitution and system of government — though deeply flawed — which envisioned the excesses of powerful and craven men in power and created checks and balances and a Bill of Rights to restrain them. Justice Brandeis made decisions and wrote inspiring opinions (including dissents far ahead of his time), breathing life into the Bill of Rights because he clearly envisioned times like today when government and presidents would abuse their powers and violate the Constitution. Baldwin, of all people, who witnessed his allies and clients being jailed and deported for expressing their beliefs, did indeed envision times like today and far worse. He helped create the ACLU as an independent force to confront people just like Trump.
Cose would need to marshal a lot more evidence to establish that across the nation today as a whole or even within a majority, “made-up facts” are “widely deemed to be more credible than the truth” or that all we are left with is “a model” in which “preconceptions, repetition, fear, and skillfully presented propaganda pretty much trump everything.” As Cose’s entire book admirably recounts, over the last century the nation — and the ACLU — have faced equally dark periods when liars, demagogues, racists, egomaniacs, and very dangerous people have occupied the White House and other positions of power, blatantly violating the Constitution and ruining the lives of people victimized by their abuses of power. The legacy of those perilous times is that by learning from experience, counterweights in society, including an aroused public, oppositional political movements, principled judges, outspoken members of the press, and yes, the ACLU, have resisted the fear, the propaganda, and the demagoguery, and have dragged the country back from the abyss.
Even in the midst of his pessimism, Cose notes that “the ACLU is doing a lot of things these days that it did a lot less of in the past,” including supporting an array of ballot initiatives during the 2018 midterm elections, and filing “an unprecedented number of anti-administration lawsuits.” As of early 2019, Cose reports 186 legal actions brought against the Trump administration, including 92 lawsuits. As of this writing, the ACLU has pursued an unprecedented 371 legal actions and lawsuits against his administration, including most recently 50 challenging his handling of the COVID-19 pandemic and several emergency lawsuits arising out of his suppression of protests following the murder of George Floyd.
“Moving forward,” Cose writes, “means accepting the fact that America has changed.” It means “letting go of the dream of remaking the old America and embracing the possibilities of the new” and “awakening to the reality that the decisions we make now will haunt this earth forever.” Those are his final words. Left unsaid, but hopefully implied, is that the ACLU shows every sign it is prepared to continue to play an instrumental role in creating those “new possibilities” for liberty and justice for all.
Cose has written a sweeping history of the first hundred years of the ACLU, filled with pertinent information about the organization’s accomplishments, setbacks, and internal divisions and controversies. Of necessity, with so much ground to cover, some key events and legal battles are left out. But some that Cose omitted are worthy of note:
- The ACLU played an important role in upholding separation of church and state, in cases such as Engel v. Vitale (1962) (striking down official public school prayers), Abington 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’s relentless pursuit of racial justice, described very well by Cose throughout his book, did not prevent the organization from taking on controversial cases which pitted civil rights against freedom of speech. Cose would have been wise to illustrate this by explaining how the ACLU decided to represent Klansman Clarence Brandenburg. In 1964, he was convicted under Ohio’s criminal syndicalism law of advocating “sabotage, violence, or […] terrorism […] as a means of accomplishing […] political reform” and was fined a $1,000 and sentenced to one to 10 years in prison. In the Supreme Court, Brandenburg was represented by two ACLU lawyers: Eleanor Holmes Norton, an African American; and Allen Brown, a Jew. The Court agreed with the ACLU. In a unanimous opinion, the Court elevated the 50-year-old dissenting views of Justices Oliver Wendell Holmes Jr. and Louis Brandeis to the force of law. The Court held that First Amendment protection for the advocacy of violence gives way only if “directed to inciting or producing imminent lawless action” and “likely to incite or produce such action.” The precedent in Brandenburg v. Ohio (1969) has been cited thousands of times in Supreme Court and lower court opinions protecting the freedom of speech of despised and praised advocates across the political spectrum.
- Cose might also have productively included an account of the landmark decision in 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. The ACLU represented Johnson in the lower courts and filed an amicus brief in his support in the Supreme Court. Justice Anthony Kennedy’s concurring opinion captured the dilemma the ACLU has faced throughout its history. “The hard fact is that sometimes we must make decisions we do not like,” Kennedy wrote. “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.”
Cose appears to have completed his book at the end of 2019. On December 12, 2019, the national board of the ACLU, by a vote of 55 to two, resolved that Trump had committed seven impeachable offenses in violation of his oath of office to preserve, protect, and defend the Constitution. On February 5, 2020, the Republican-controlled Senate voted to acquit Trump. An account of how the ACLU saw such a threat to civil liberties in Trump’s actions to make an exception to its policy of nonpartisanship would have rounded out Cose’s 100-year chronicle.
Early on, Cose expresses the hope that his book will help “to make clear why the defense of civil liberties is the responsibility of all Americans — not just of an organization with civil liberties in its name.” Cose has achieved his goal. The rest of us need to take that responsibility very seriously.