Tag Archives: ACLU

The ACLU, Chuck E. Cheese and The Trump Administration

I cried reading the New York Times last Sunday.

It was an article titled “Can the ACLU become the NRA of the left?”

I spent six years as Executive Director of Indiana’s ACLU affiliate, and took a great deal of pride in the organization’s nonpolitical bona fides. (As the only Republican Executive Director at the time, I was particularly supportive of that nonpartisanship.) The Times article focused upon the organization’s determined, effective–and very political– opposition to Trump.

If Trump didn’t pose an obvious and existential threat to civil liberties, democracy and the rule of law, I would be distressed.

It was the description of a family separation case that made me cry.

Nearly a year ago, fearing for their lives, Ms. L. and her daughter, S., who was 6 at the time, fled their small village in the Democratic Republic of Congo. A group of nuns gave them money and food and helped them flee the country. For the next several months, they slept outside most nights or sometimes on the floors of empty buildings they had been pointed to along their route north toward the United States. They cleaned themselves as much as possible in public restrooms. They scavenged for discarded food from restaurants. When they finally presented themselves at the crossing in San Diego, Ms. L. saw the American flag and told her daughter they were going to be O.K.: “We have arrived.”

This was on Nov. 1, 2017 — months before the government denied it was separating children from their families, then said it was only families who were caught crossing the border illegally, then announced it was all part of a zero-tolerance policy. Ms. L. entered legally at the port of entry at San Diego. In broken Spanish she had picked up along the way, she told the border agents she was seeking asylum in the United States. The Border Patrol referred her to ICE, and after four days in temporary housing, ICE agents met with her and S. and asked the girl to go with a guard into another room. Once she was gone, they handcuffed Ms. L., who hadn’t committed a crime. She listened to her daughter beyond the door, screaming and pleading with the guards not to take her away. S. was transported immediately to a facility for unaccompanied minors in Chicago. Ms. L. was detained in California with roughly 1,500 other detainees.

Two weeks later, on Nov. 17, an asylum officer conducted what ICE calls a “credible-fear screening” and determined that Ms. L.’s story met the “credibility threshold,” which would normally mean she could enter the country legally and live with her daughter in a shelter while she awaited a full asylum hearing. Instead, months went by, mother and daughter 2,000 miles apart, each in a place where no one else spoke their native Lingala. Ms. L. and S. spoke five or six times by phone, but the conversations were torturous for Ms. L., with S. sobbing on the phone and telling her mother how scared she was and her mother having no idea if she would ever see her again. “Chicago meant nothing to her,” Gelernt told me. “It might as well have been on the moon.”

In late January, Ms. L. appeared before an immigration judge without an attorney present. She hadn’t seen S. for nearly three months and was consumed with worry and despair. After questioning her, the judge ordered Ms. L. to be removed from the United States. Confused by what was being asked of her, she waived her right to contest her removal. When she returned to the detention center and recounted what happened, another detainee asked, “What have you done?” and explained that she was going to be sent to Congo. Ms. L. begged her fellow detainee to write a letter to the judge on her behalf. “Please don’t send me back,” she said. “I will be killed there.”

The Times article has much more detail–and I hope everyone will read all of it. The  ACLU represented the mother.

Here’s the paragraph that made me cry:

The next night, after I left, they were reunited in the shelter. I’ve spoken with Gelernt several times about the moment of their reunion, what he called the most emotional thing he’d experienced in 25 years of doing immigration work. Ms. L. stood near him waiting for her daughter on a worn marble staircase just inside the shelter’s front door. When the door swung open, she crouched and stretched her arms wide. S. stepped through the doorway and saw her, and the most beautiful smile spread over the girl’s face, Gelernt said. She toppled forward, and Ms. L. gathered her in her arms and fell back onto the marble stairs. The look on her face as she held her daughter was almost too emotional to witness. For the next minute they lay there, clinging to each other and rocking from side to side. The only sound in the hall was a low, rhythmic moan, punctuated by S.’s higher-pitched cry.

A federal court gave the administration thirty days to reunite parents with the 2000+ children it holds. The administration wants more time–because they can’t figure out who belongs with whom.

Which brings me to Chuck E. Cheese.

Chuck E. Cheese was after my parenting time, but my son and daughter-in-law assure me that the chain–which evidently makes its money from children’s parties–has a simple security protocol (“Kid check“) that ensures parents will leave with the children they brought.

Chuck E. Cheese can do what the incompetent Trump administration can’t.

It’s a meme for our time.

Free Speech Conundrums

A friend of mine–a very thoughtful observer of American life and culture–asked for my opinion of the ACLU’s reported decision not to represent Charlottesville protestors alleging violation of their free speech rights if the “speakers” were armed at the time.

I haven’t seen a detailed statement to that effect, but based upon what I know, I agree with it.

When I teach the free speech clause, I tell students it requires distinguishing between speech—defined as the transmission of an idea—and action. The government cannot prohibit or punish the articulation of a message; it can, however, justifiably prohibit or punish harmful actions.

It isn’t always easy to draw the line, to identify when a message or idea becomes something else.

I illustrate the dilemma by giving students a number of “scenarios” requiring that they  decide whether something was speech or intimidation, speech or fraud, speech or harassment, speech or the first step in commission of a crime ( the RICO arguments).

Assume that a 6’4″ muscular body builder tells a hundred pound 5’1″ woman “If you don’t let me [fill in the blank], I’ll beat you so badly you’ll be unrecognizable.” Assume, also, that he does nothing more–doesn’t lunge toward her, or otherwise make menacing moves–has he simply exercised his constitutionally-protected freedom of speech? Or is he guilty of threat and intimidation?

What’s the difference between a labor union picketing a store by marching on the sidewalk with placards, and anti-choice activists coming into a residential neighborhood with bullhorns and screaming from 2:00 a.m. to 7:00 a.m night after night in front of the home of the Director of Planned Parenthood? (True story.)

Can we draw a distinction between the speaker who says “I think we need to overthrow the government, and this is why,” and the one who tells a group of angry citizens “I’ve got the rifles outside in my truck! Everyone who’s with me come and get one and we’ll march on City Hall right now!”

As they used to say on Sesame Street, one of these things is not like the other. And by and large, the courts have understood the differences.

So I agree with the ACLU’s decision. (I am surprised; it seemingly breaks a long tradition of ACLU First Amendment absolutism.) In the real world, racist speech by an armed and confrontational White Supremacist crosses the line from protected expression to  criminal intimidation.

Permit me to offer an (admittedly imperfect) analogy: the ACLU supported the Supreme Court’s decision in Citizens United. I tend to be a free speech purist, and in the abstract, I agreed with the reasoning. But in the real world, that decision gives the rich and powerful permission to corrupt the political process and drown out the speech of others. I agree with former Indiana Supreme Court Justice Ted Boehm, who once told me that the original legal error, in his opinion, was Buckley v. Valeo’s equation of money with speech. I also agree with former Representative Lee Hamilton, who has said that the Supreme Court doesn’t need more Justices who graduated from Harvard Law; it needs more Justices who’ve run for County Sheriff.

The First Amendment protects the exchange of ideas, no matter how pernicious or hurtful or offensive. However, it does not protect actions that government can properly forbid, merely because those actions are accompanied by–or accomplished through–the spoken word.

It isn’t always easy to tell the difference, and we may not all agree on where the line should be drawn, but we have to draw it.

Truly Torn

Oh, Mike Pence! Sometimes you do confound me! Apparently, you’ve accidentally done something good!

According to a recent report in The Indiana Lawyer, 

Under the administration of Gov. Mike Pence, legal fees paid to the American Civil Liberties Union of Indiana have soared beyond $1.4 million and may approach $2 million, according to an Indiana Lawyer analysis. The $1.4 million total does not include fees that have been or will be paid in the current fiscal year ending June 30 or other legal fees ACLU claims are owed by the state. The fees represent the state’s payment of legal bills to parties who prevail in federal court on claims that government action violated their constitutionally protected civil rights.

Regular readers of this blog will remember that I spent six years (1992-98) as the Executive Director of Indiana’s ACLU. Those were rewarding years in so many ways–I learned so much and met so many wonderful people; it was so gratifying to be part of an organization that defended individual liberties…..

But I must admit that the most vivid memory I took with me when I left the ACLU for academic life was the constant pressure of fundraising. We had wonderful lawyers and dedicated clerical staff, and we all worked for a pittance–but I had to raise that pittance. The ACLU only has two sources of income: charitable gifts (fundraising) and legal fees.

And legal fees aren’t a given. The organization only gets legal fees when it wins a lawsuit and the law allows such recovery. Even when the organization is successful and the case is a fee-generating one, it can take years of litigation–first, the case itself, then a fight over fees…

So I really, honestly do want to thank Governor Pence for his largesse to Indiana’s ACLU. I mean, $2 million dollars is a windfall! It should allow the ACLU some much-needed “breathing room,” some assurance that it will “be there”–in a position to protect LGBT Hoosiers from discrimination, reproductive rights from theocratic lawmakers, public school students from government-imposed prayer, law-abiding citizens against official overreach…Well, you all get the idea.

Here’s another idea: Each time Indiana’s constitutionally clueless Governor and AG lose another case to the ACLU, let’s all send the ACLU a few extra dollars to celebrate. Because after November, I have a feeling this bonanza may dry up….and Jane Henegar, the wonderful current Executive Director, will have to resume her begging.

Send a few bucks to Indiana’s ACLU in “honor” of Governor Pence.

Constitution Day–And Other Public Service Announcements

September 17th is Constitution Day.

Bet you didn’t know that, because it hasn’t gotten very much attention. In 2004, Congress passed a law requiring that any school receiving federal funds of any kind provide educational programming on the significance of the signing of the Constitution.

Public school systems also have an obligation to mark the day, but many of them evidently struggle to find appropriate speakers and/or materials.

Fear not! The ACLU to the rescue!

The ACLU of Indiana will send trained volunteers into classrooms in central Indiana. (If you are an educator who wants to have this programming in your classroom this year, you can sign up on the organization’s website.) You can also download all sorts of helpful things–the Constitution, study guides and other materials, a classroom PowerPoint presentation and a wide variety of online resources, including games, curriculum, and videos.

As the website says, nothing is more important to our democracy than improving civic literacy. So spread the word.

Okay–so you aren’t a teacher, and you don’t need help marking Constitution Day.

If you live Indianapolis and feel the need to know more about the city and how it works before November’s municipal elections, have we got a deal for you!

The Center for Civic Literacy, the League of Women Voters, the Indianapolis Chamber of Commerce, the Urban League, the Indianapolis Bar Foundation, the Greater Indianapolis Progress Committee, the Indianapolis Neighborhood Resource Center, NUVO, WFYI, and several other civic organizations are working with the Indianapolis Public Library to sponsor three forums to be held at Central Library. They’re free and open to the public. You can learn more–and register to attend one or all of them– here.

Have you always wondered what a municipal corporation is? How the City-County Council works? Who pays taxes and who doesn’t? What our most pressing problems are? Where we see our City in 2020? Come find the answers to these questions and many others! Forums will be held on September 21st, October 6th and October 20th.

The series is called “Electing Our Future: What You Need to Know about Indianapolis Government In Order to Cast an Informed Vote.”

No politics, no spin, just basic information that will help you evaluate the priorities and capacities of the candidates for Mayor and Council who are asking for your vote.

See you there!

 

Libertarian/Civil Libertarian

Later today, I’ll be speaking to the state Libertarian convention about the ACLU. Here’s the speech I plan to deliver–another longer-than-average read, tendered with my apologies! (After this, I fully expect to return to my much shorter “regularly scheduled broadcasting”…)

____________________________________________________

I think that one of the reasons I was asked to speak today is that—at one time or another—I have been a member of all three political parties: Republican, Libertarian and now Democratic. It really isn’t because I can’t make up my mind. I like to think it’s because I reject an approach to political identity that seems all too common among political partisans: pick a team (sort of like a sports team) and stay loyal to that team no matter what. Get your news exclusively from Fox or MSNBC, read only the blogs that pander to your “team,” ignore information that doesn’t fit nicely with your chosen identity, and of course, vote accordingly.

My changing affiliations do reflect some changes in my personal understanding of policy issues, but they are much more the result of dramatic changes in my original party—the Republican party—over my adult life. As I like to say, I didn’t leave the GOP—the party left me.

That said, no matter what my partisan affiliation, I have always been a civil libertarian—a card-carrying member of the ACLU—and I have always been an advocate of fiscally responsible government. Those positions used to be consistent with Republican philosophy and that was why I originally joined the GOP. I would argue that Republicans can no longer credibly argue that they stand for the principle of limited government.

In 1980, when I left my position as Corporation Counsel in the Hudnut Administration to run for Congress against Andy Jacobs, Jr., I was pro-choice and pro-gay rights (at least, as gay rights were understood back then), and I won a five-way Republican primary. When I lost the general election, most local pundits said I lost because I was much too conservative.

Think about that for a minute.

By 1992, when I became Executive Director of the Indiana  affiliate of the ACLU, the GOP had already undergone considerable change. That was the year that Bill Hudnut was booed on the floor of the Republican National Convention because he was prochoice—the same year Pat Buchanan made a convention speech that people quipped sounded better in the original German.

When the ACLU announced that it had hired me, NUVO, Indianapolis’ alternative newspaper, ran a huge red headline proclaiming “ICLU taken over by card-carrying Republican!” One member resigned: he said my political affiliation was inconsistent with civil liberties and the Board was insane to hire me.

I had been a “card-carrying” member of the ACLU since 1967 and a politically active Republican since 1964, and up to that point, I’d considered the two affiliations entirely consistent. In fact, I finally wrote a book because I got tired of people asking me “What’s a Republican doing at the ACLU?” It’s still in print, but today the title seems quaint: “What’s a Nice Republican Girl Like Me Doing at the ACLU?”

Now, I should clarify that I was a Goldwater Republican.  Back then, Goldwater Republicans believed that government power is easily misused, and thus must be carefully monitored and limited. They weren’t anarchists; they recognized that government is a necessary mechanism through which citizens establish order and provide for the common welfare. But it was a recognition that concentrated power, even in the hands of the most benign and well-meaning functionaries (maybe especially in such hands) is a potential threat to individual freedom.

If liberty is something we actually value—rather than something to which we pay dutiful lip-service—prudence requires that we limit the ability of the state to interfere with our personal or economic behaviors—that we limit laws to those that are truly necessary.  People of good will can argue about what is necessary, where to impose those limits and where to draw those lines, but restraining the power of government to invade either one’s boardroom or bedroom used to be the Republican message.

Exactly the same logic impelled my membership in the ACLU. If free markets are good for our economic health, surely markets for ideas are equally desirable. Furthermore, liberty isn’t divisible—a government that can dictate my reading material or religious beliefs or my associations can just as easily deprive me of the use of my property, and vice versa. How secure are any of our rights—political or economic—against a government that can decide who gets rights and who doesn’t?’ The issue is the same: the power of the state.

I spent a substantial portion of my tenure at the ACLU explaining the organization to people who had a very distorted image of who we were, people who simply didn’t understand what we did.  In the process, I discovered that very few people–even politically active, aware people–know what civil liberties are. Fewer have read the Bill of Rights, let alone the Federalist and anti-Federalist arguments that accompanied its adoption. American ignorance of our own history and legal system is one of the unremarked scandals of our educational system, and it’s the reason I have recently established the Center for Civic Literacy at IUPUI.

During my six years at the ACLU, I found that there are three major misconceptions about the organization. The first involves what I call “endorsement confusion.” For some reason, people have a real problem separating the defense of someone’s rights from an endorsement of the way he or she is exercising those rights. So if we say the KKK has a right to use the public streets just like everyone else, we are accused of agreeing with the KKK.

That’s nuts. The ACLU can defend your right to choose the books you read without approving of the books you choose, or oppose police brutality without being pro-criminal.

The issue for civil libertarians is who decides? Not what decision is made, but who has the power to make it. In a free country, people will make lots of decisions I don’t like. Some of those decisions will be harmful, or even dangerous. But the alternative is to allow government to make them—which can be a far more dangerous proposition.

The second misunderstanding comes from those who believe that the Bill of Rights is some sort of free-floating protection against all unfairness in society. They don’t understand that the Bill of Rights restrains only government, and that no matter how obnoxious or evil Walmart or Chik-Fil-A may get, they aren’t violating your civil liberties. Only the government can do that.

The most troubling misunderstanding is also the most fundamental: people really do believe that the United States is a majoritarian democracy. When I spoke to high school classes, I would typically begin by saying “This is America, so the majority rules, right?” And virtually every time, all the hands would shoot up and all the heads would nod. Then I would ask  “So you can vote to make me an Episcopalian, right?” That would generate confusion; they knew enough to know that they couldn’t vote to make me join a particular church, but they really didn’t know why. The “why,” of course, is the Bill of Rights, which limits what government can do even if a majority authorizes it.  So we don’t take votes to decide what prayer you can say, what book you can read, what groups you will associate with.

The entire purpose of the Bill of Rights was to remove certain matters from the reach of popular opinion—what the founders called the “tyranny of the majority.” Of course, the majority generally doesn’t deny rights to attractive and popular people, so the ACLU ends up representing some fairly unpleasant people.

Contrary to popular opinion, very few ACLU staff are politically active Democrats. Virtually all of them celebrate the non-partisan nature of the organization. Most of them agree with the director of a western affiliate who began all his speeches by asserting that the ACLU is a conservative organization because its mission is to conserve the values of the Constitution and the Bill of Rights.

When I joined the GOP, back in the Ice Age, and for the 35 years I actively worked for the party, traditional Republicans (and I stress traditional) and core civil libertarians really agreed on most such issues, although neither seemed to recognize that.

Both believed in limiting the power that the state may exercise over the individual. Both supported the concept that majority rule must be subject to the restraints of law; that certain rights are too fundamental to be subject to the whims of voters, or to popular passions. And both believed that rights are individual; that is, that government has the obligation to treat each of us as an individual and not as a member of a group.

Over the years, the GOP abandoned those principles in favor of a majoritarian culture war, and I left the GOP. I made a brief stop with the Libertarian Party before deciding that I support a more robust role for government than you do.

When I was Executive Director of the Indiana ACLU, I often made a point that libertarians frequently make: the political spectrum is not a straight line, with “liberals” on the left and “conservatives” on the right. It’s a circle, where the far left and far right touch.  And the only thing extremists on both ends are arguing about is whose agenda government should impose on the rest of us.

We live in a complex and interdependent world, and I have come to understand that there often is no reasonable substitute for collective action. (My libertarianism has much more in common with Friedrich Hayek than it does with Ayn Rand.) Markets are wonderful, but there are areas in which markets do not and cannot work. There are things governments simply have to do.

But Republicans, Democrats and Libertarians should all be civil libertarians. Whatever one’s position about government’s role in the economy, whatever tax or economic policies you support, we should all agree about the importance of defending individual liberties. We should all resist government’s efforts to prescribe our beliefs, censor our speech or surveill our behaviors without probable cause.

We should all be card-carrying members of the ACLU.

Thank you.