9 minute read

American Civil Liberties Union

Whose Civil Liberties, Anyway? The Aclu And Its Critics

Since 1920, the American Civil Liberties Union (ACLU) has stood at the forefront of nearly every great legal battle over personal freedom in the United States. The C in ACLU might easily stand for Controversial. Although the ACLU's role as a major institution in U.S. law is indisputable, its effect on the law and on the lives of citizens is frequently in dispute. Political debate over the group yields very little middle ground and a great amount of passionate disagreement. Supporters agree with its self-styled epithet, "the guardian of liberty." To them, the ACLU is often all that stands between freedom and tyranny. Opponents think the organization is simply a liberal establishment bent on imposing its views on society. They fault its reading of the law, despise its methods, and rue its results. At the heart of this debate is a fascinating ironic question: how does an organization that fights for the very foundations of the nation's commitment to liberty inspire so much conflict?

Even from the start, the idea of a group devoted to defending liberty (the right of each person to be free from the despotism of governments or majorities) made some observers angry. In 1917, members of the Civil Liberties Bureau, which was soon renamed the ACLU, got this welcome from the New York Times editorial page: "Jails Are Waiting for Them." Although WORLD WAR I was a period of governmental heavy-handedness, the Times proved to be both right and wrong. In the next three-quarters of a century, the ACLU became a vastly powerful force in shaping law, and it won many more enemies than friends. By the 1988 presidential election, candidate GEORGE H. W. BUSH could make political hay in campaign speeches by attacking the ACLU as "the criminal's lobby." Other critics said the ACLU was anti-God, anti-American, anti-life, and so on. In the end, no jails held ACLU members (at least not for long), but no small number of people would have liked to lock them away.

The case against the ACLU is actually many cases. Every time the organization goes into court, it naturally has to displease someone; litigation is hardly about making friends. Although the organization has one mandate, the abstract ideal of freedom, it must oppose the will of specific individuals if this mandate is to be carried out. Take, for example, one of the ACLU's civil liberties battles: religious freedom. For some, religious freedom means the First Amendment's guarantee that "Congress shall make no law respecting an establishment of religion"; in other words, that people will be free from government-imposed religious worship. For many others, religious freedom implies just the opposite FIRST AMENDMENT assurance, that Congress shall not prohibit the free exercise of religion. In a 1962 court battle, the ACLU won a point for the former, an end to prayer in public schools, a victory that polls indicate was unwanted and unsupported by most U.S. citizens (ENGEL V. VITALE, 370 U.S. 421, 82 S. Ct. 1261, 8 L. Ed. 2d 601). Equally stymied by ACLU activism are people who want to display Christian crèches on government property at Christmastime. They have their holiday hopes dashed every time the ACLU wins a court order blocking such a display on First Amendment grounds. Each victory for the organization in such cases may be another disaster in local public relations.

In response, scorn heaped on the ACLU seldom fails to question its motives. The ACLU's "yuletide work" was attacked by the conservative commentator John Leo in an essay in the Washington Times entitled "Crushing the Public Crèche:" "While others frolic, the grinches of the ACLU tirelessly trudge out each year on yet another crèche patrol, snatching Nativity scenes from public parks and rubbing out religious symbols." Leo's point is shared by many conservatives: the government, far from remaining neutral in religious matters, is actually engaging in hostility toward religion, at the behest of ACLU "zealots." In this view, the defense of an abstract principle has taken hold of the senses of its defenders; they have become inflexible absolutists. The conservative attorney and author Bruce Fein took this complaint much further, discovering something insidious: "A partial sketch of the ACLU's vision of America reveals a contempt for individual responsibility, economic justice and prosperity and moral decency." Fein meant that the ACLU defends WELFARE.

Ascribing suspicious aims to the ACLU moves the debate into a more complicated area. The ACLU is not opposed simply because it has fought to block government-sanctioned religious displays, causing local upset and anger.

Similarly, it is not opposed merely because it defends the rights of some of society's most unpopular groups, Nazis, for example. The deeper issue is civil liberties themselves. Here we have a new question: why does an organization that fights for the very foundations of the nation's commitment to liberty even have to exist?

The ACLU's answer is rather simple. Civil liberties, it argues, exist only when everyone enjoys them. In other words, there is no such thing as freedom for some without freedom for all, including those individuals whom the majority may hate or whom the government seeks to silence. Loren Siegel, ACLU director of public education, wrote that the United States

was founded upon not one, but two great principles. The first, democracy, is the more familiar: The majority rules. The second principle, liberty, is not as well understood. Even in our democracy, the majority's rule is not unlimited. There are certain individual rights and liberties, enshrined in the BILL OF RIGHTS, that are protected from the "tyranny of the majority." Just because there are more whites than blacks in this country does not, for example, mean that whites can vote to take the vote away from blacks. And just because there are more heterosexuals than homosexuals should not mean that the majority can discriminate with impunity against the minority.

But civil liberties "are not self-enforcing," Siegel adds. Moreover, NADINE STROSSEN, ACLU president, points out that victories in civil liberties need to be continually re-won. It is not the habit of enemies to grant their opponents the same constitutional rights that they themselves enjoy; plainly, it is the habit of enemies to ignore, restrict, or even crush those rights. Not by accident, the government or a majority of voters can do this; the weak and the few cannot. Thus, the ACLU's commitment is precisely to those whose purchase on freedom is slim—not because the ACLU is necessarily in favor of their cause, but because it is in favor of upholding their rights.

That argument sounds nice on paper, opponents say, but it is neither practical nor sensible at all times in real life. Indeed, they ask, what about the majority—why must it suffer to please the few in its midst who cause trouble, such as criminals? This is the point that Bush wanted to make with his famous "criminal's lobby" blast: the civil liberties of criminals should not be upheld at the expense of the civil liberties of law-abiding citizens. Bush, like other critics, turned this charge into a broader indictment of the ACLU: in his 1988 campaign for the presidency, he accused Democratic presidential candidate Michael Dukakis of being a "card-carrying member of the ACLU." The term card-carrying resonates in U.S. political history; it comes from the era of anti-Communist witch hunts and implies anti-Americanism. Ira Glasser, the ACLU's executive director at the time, indignantly replied to Bush in the Boston Globe: "The vice president feels it is politically expedient to beat up on us, and if the only way that he can carry it off is by engaging in McCarthyism and distorting our record, then he is willing to do it."

Despite the conservative claim that the ACLU is a liberal group, the political left also has taken shots at it. In the 1980s and 1990s, some feminists opposed the ACLU's absolute defense of free speech. These critics were particularly distressed by the organization's support of the speech rights of pornographers. Others on the left, notably academics, resent the ACLU's opposition to so-called hate-speech codes that COLLEGES AND UNIVERSITIES have imposed on campuses to protect members of minorities from others' abusive expression. Such issues have caused dissent even among the ranks of the ACLU itself, leading some to argue that the organization should emphasize CIVIL RIGHTS over civil liberties, that is, jettison its traditional mission in order to focus more specifically on the rights of women and racial minorities. In the ACLU's 1992–93 ANNUAL REPORT, Strossen dismissed this argument. Liberty and equality, she wrote, are not mutually exclusive. "How can individual liberty be secure if some individuals are denied their rights because they belong to certain societal groups? How, on the other hand, can equality for all groups be secure if that equality does not include the exercise of individual liberty?"

Critics contend, however, that making individual rights paramount can produce results that clash with community values. They note that the ACLU has fought the implementation of the Children's Internet Protection Act, including a provision that requires public libraries receiving federal technology funds to install filters on their computers or risk losing aid. With the First Amendment seemingly protecting most forms of Internet PORNOGRAPHY, the act seeks to prevent access on public library computers, so as to prevent children from seeing disturbing images as they walk by. The act even permits adults to ask the librarians to turn off the filters. Nevertheless, the ACLU persuaded a federal court in 2002 that the law violated the First Amendment. Critics of the ACLU cite this as just one more example of blind devotion to an absolutist view of free expression.

In the aftermath of the SEPTEMBER 11TH ATTACKS of 2001, the ACLU has exposed itself to more criticism over its objections to new federal laws and orders. It objected to proposed provisions of the USA PATRIOT ACT in October 2001, at a time when very few voices were raised about protecting the right to privacy and preventing the government from gaining more POLICE POWERS. It has also challenged the indefinite detention of ALIENS who are suspected of terrorist activities and ties.

The ACLU promises to remain on the forefront of the debate over the scope of the Bill of Rights and the desire of citizens to be protected by their government. The WAR ON TERRORISM that began in September 2001 was expected to generate many legal challenges by the ACLU as the federal government asserted new found powers to monitor, investigate, and detain suspected terrorists. It was expected that the ACLU would continue to find itself isolated at times as it battled for its vision of a free society.


Schulhofer, Stephen J. 2002. The Enemy Within: Intelligence Gathering, Law Enforcement, and Civil Liberties in the Wake of September 11. New York: Twentieth Century Fund.

Strossen, Nadine. 2001. Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights. New York: New York Univ. Press.

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: Air weapon to Approximation of lawsAmerican Civil Liberties Union - Whose Civil Liberties, Anyway? The Aclu And Its Critics, Further Readings