American Civil Liberties Union (ACLU) and the Supreme Court

Founded: 1920

Description: A nonprofit, nonpartisan organization dedicated to upholding the Bill of Rights and defending the civil liberties and civil rights of all Americans.

Significance: Appearing before the Supreme Court more often than any other organization except the federal government itself, the ACLU has been involved in an estimated 80 percent of the landmark cases brought before the Court after 1920.

The ACLU was founded in 1920 by Roger Baldwin and other Progressive-era activists. It grew out of earlier organizations that had opposed the entry of the United States into World War I (1917–18) and had upheld the rights of conscientious objectors when little popular support existed for defending these dissenters’ rights. At the time of the ACLU’s founding, the Supreme Court had never upheld a free speech claim under the First Amendment but instead had repeatedly ruled that the Bill of Rights limited only the federal government and did not apply to the states. Therefore, states were free to ignore the First Amendment. Only gradually was the Court persuaded to adopt the philosophy of selective incorporation, in which various provisions of the Bill of Rights were applied to the states. The ACLU developed the legal arguments for many of these landmark decisions.

Early Victories and Defeats

The ACLU’s first victory before the Court came in Gitlow v. New York (1925). Benjamin Gitlow, a socialist, had been sentenced to prison for distributing a radical pamphlet calling for world proletarian revolution. Although the Court upheld Gitlow’s conviction, it accepted the argument set forth by ACLU lawyer Walter H. Pollak that liberty of expression was a right that should be protected against state infringement. The significance of this case was not immediately recognized, and the ACLU’s annual report characterized it as a defeat.

Because of the conservative nature of the Court, the ACLU leadership remained divided over the extent to which it should be relied on for the protection of civil liberties. Felix Frankfurter, a member of the ACLU National Committee, argued that legislative protection of civil liberties provided a more secure and democratic foundation. What the Court could give, it could just as easily take away. Baldwin was also suspicious of legal strategies and focused his attention on direct action, particularly in support of labor. However, in 1931 ACLU lawyers successfully argued in Stromberg v. California that the conviction of a communist for displaying a red flag should be overturned because it violated the First Amendment. The decision represented the first time in the Court’s history that it ruled a state law unconstitutional on free speech grounds. In the 1930s the ACLU launched a broad anticensorship campaign that focused on movie censorship, artistic expression, and the right to disseminate information regarding birth control. By the late 1930s a growing number of legal victories fueled the ACLU’s increasing turn toward legalism. In 1941 the organization hired its first full-time staff attorney.

The ACLU first came to national attention with the 1926 Scopes “Monkey” trial. It had offered legal assistance to anyone willing to challenge a Tennessee law prohibiting the teaching of evolution. Although biology teacher John T. Scopes was convicted, the trial brought widespread publicity and support to the fledgling organization. The issues of academic freedom and the separation of church and state would remain central to the ACLU. During the 1930s and 1940s it sponsored key cases involving the rights of Jehovah’s Witnesses. Later, in the landmark ACLU-sponsored cases of Engel v. Vitale (1962) and Abington School District v. Schempp (1963), the Court struck down “nondenominational” school prayer and in-school Bible reading.

The ACLU’s commitment to civil liberties faltered in the 1940s and 1950s. During World War II (1941–45), it unsuccessfully argued two cases involving Japanese American internment, the first being Korematsu v. United States (1944) and the second, Hirabayashi v. United States (1943), yet it refused to permit its lawyers to directly challenge the constitutionality of the internment orders. During the 1950s the ACLU succumbed to anticommunist hysteria, prohibiting communists from serving on its board. Although it filed amicus briefs in cases involving the Smith Act, an anti-subversive law adopted in 1940, it refused to directly represent communists.

Expanding Rights for All Americans

By the 1960s the ACLU had resumed its unwavering defense of freedom of speech, winning such landmark cases as Tinker v. Des Moines Independent Community School District (1969) and Brandenburg v. Ohio (1969). The ACLU’s “absolutist” position on free speech, which supported Nazis, Ku Klux Klan members, and communists, developed amidst many internal debates. In one of the most controversial cases in its history, the ACLU supported the right of American Nazis to march through a Chicago suburb where many Holocaust survivors lived. The ACLU’s challenge was ultimately upheld in Smith v. Collin (1978). The ACLU’s support for the rights of criminal suspects also generated public hostility. In the 1960s the ACLU argued or directly influenced many of the most important decisions involving police conduct and the rights of the accused, including Mapp v. Ohio (1961), Gideon v. Wainwright (1963), Escobedo v. Illinois (1964), and Miranda v. Arizona (1966).

ACLU leadership played an important part in developing the legal strategy that resulted in the landmark Brown v. Board of Education (1954) decision and subsequently argued numerous cases supporting school desegregation, civil rights protesters, and affirmative action. During the 1970s and 1980s the ACLU’s Voting Rights Project played a critical role in the judicial enforcement of the 1965 Voting Rights Act, filing lawsuits against nearly two hundred jurisdictions. The ACLU also stood at the forefront of women’s rights and participated in two-thirds of cases involving gender discrimination heard by the Court. Ruth Bader Ginsburg, general counsel to the ACLU’s Women’s Rights Project, pioneered in gender equity litigation in the 1970s. In 1971 the ACLU argued United States v. Vuitch, the first abortion rights case before the Court.

The ACLU was at the forefront of expanding legal and constitutional protections to groups that have traditionally been denied their rights, including women, minorities, students, juveniles, prisoners, the disabled, mental patients, welfare recipients, immigrants, criminal suspects, and homosexuals. By the late 1990s the ACLU had a national office in New York City, a legislative office in Washington, DC, and autonomous affiliates in all fifty states staffed by more than sixty full-time lawyers. It sponsored national projects devoted to specific civil liberties issues such as AIDS, capital punishment, education reform, privacy and technology, reproductive freedom, and workplace rights. In 2006, the ACLU represented six homeless people living on the streets of Los Angeles, California. The group sued the city, arguing that it violated the 8th and 14th Amendments of the US Constitution and several sections within Article 1 of the California Constitution. The Supreme Court ruled in favor of the ACLU stating that Los Angeles city police officers are not allowed to arrest people for sleeping or otherwise sitting on public sidewalks. In 2013, the ACLU and the US federal government reached a settlement in the case Collins v. United Stated, which provided restitution of separation pay to military personnel who had been discharged under the "don't ask, don't tell" policy.

Combining litigation with lobbying and public education, the ACLU helped create whole new areas of constitutional law and doctrine and played a pivotal role in the twentieth-century “rights revolution.”

Bibliography

Annas, George J. The Rights of Patients: The Basic ACLU Guide to Patient Rights. New York: Spring Science & Business Media, 2012. Print.

Garey, Diane. Defending Everybody: A History of the American Civil Liberties Union. New York: TV Books, 1998. Print.

Hirshman, Linda R. Sisters in Law: How Sandra Day O'Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World. New York: Harper, 2014. Print.

Lamson, Peggy. Roger Baldwin: Founder of the American Civil Liberties Union. Boston: Houghton Mifflin, 1976. Print.

Murphy, Paul L. World War I and the Origin of Civil Liberties in the United States. New York: Norton, 1979. Print.

Neuborne, Burt. Madison's Music: On Reading the First Amendment. New York: New Press, 2015. Print.

Reitman, Alan. The Pulse of Freedom: American Liberties, 1920-1970’s. New York: Norton, 1975. Print.

Walker, Samuel. In Defense of American Liberties: A History of the ACLU. New York: Oxford UP, 1990. Print.