By Norman Dorsen ’53
The ALCU presidency is no rest cure. Within months after I became president in late 1976, we agreed to represent a small group of self-styled American “Nazis” who wanted to hold a rally, wearing Stormtrooper regalia, in Skokie, Illinois. Skokie was home to thousands of Jews, including several hundred survivors of Hitler’s death camps. Residents of Skokie fought fiercely, in the courts and the media, to stop the rally. The ACLU’s arguments prevailed, but the Nazis though free to march in Skokie, chose to hold a rally in Chicago instead.
Many in the media reviled the ACLU for its role in this incident. Thousands of members resigned in protest. Their exodus crippled ACLU finances, already weakened by a loss of members. Many people had joined after the ACLU became the first national organization to seek President Nixon’s impeachment in 1973 but left when they discovered that we were politically non-partisan and defended the rights of all Americans, left, right, or center. The declining ACLU resources led to layoffs and curtailment of programs, and to gloom, anxiety, and second-guessing.
Yet the Skokie case was one of the Union’s finest hours. Unless we want to dilute the First Amendment, controversial organizations cannot be prevented from demonstrating before unfriendly, even outraged, audiences, as the courts have repeatedly held—unanimously in the Skokie litigation. Happily, the vituperation did not last; even many of our initial adversaries eventually concluded that the ACLU was right. The Union’s membership, finances, and prestige grew as many Americans who did not know, or even care, about civil liberties recognized that it has stood on principle at great financial sacrifice. As a former ABA president, Whitney North Seymour once said, “Some of us have the option to pick and choose what liberties to defend. The ACLU has no such luxury. It must defend every foot, every inch of liberty in the United States.”
The second great public crisis of my presidency came about during George Bush’s first debate with Michael Dukakis during the 1988 presidential campaign. Bush accused him of being a card-carrying member of the ACLU and struck out at the organization, saying, “I oppose most of what [it] does.” Mr. Bush went on to condemn four ACLU positions, three of which he managed to get wrong. He said that the ACLU was trying to take the tax exemption away from the Catholic Church. There was indeed such an attempt, but not by the ACLU; the ACLU had in fact supported the Catholic Church on a procedural point in the case.
Mr. Bush said the ACLU opposed movie rating systems, observing that he wanted to keep his “ten-year-old granddaughter from going to an x-rated movie.” I can attest that the ACLU was not eager for any ten-year-old to attend x-rated movies. But the organization was and is concerned about the rating system being used as a means of censorship. The ACLU does not oppose all film rating systems; it opposes a particular system that has had pernicious effects on free expression.
Finally, Mr. Bush said that the ACLU supported repeal of the “kiddie porn” laws. In fact, the ACLU supports the criminalization of exploiting children through pornography. But it does oppose laws that interfere with the right of publishers to produce sex education and other respectable books without having to cope with spurious allegations about child porn.
In 1949, President Harry Truman said that the “integrity of the ACLU and of its workers in the field had never been, and I feel, never will be questioned.” In 1988 President Truman was proven wrong. I find it difficult to believe that George Bush was unaware of the remarkable contribution that the ACLU has made to American liberties. Dwight Eisenhower, John Kennedy, Douglas MacArthur, Earl Warren, and numerous police chiefs and former presidents of the ABA have praised the ACLU, not because they agree with all its actions—nobody does—but because they came to appreciate the valued place in our system of an organization that defends everybody’s constitutional rights.
A longer version of this article appeared in the June 1993 Harvard Law Bulletin, Pages 34-35.