The history of the American Civil Liberties Union (ACLU) began in 1917, with the founding of the National Civil Liberties Bureau.
Early years CLB era
The ACLU developed from the National Civil Liberties Bureau (CLB), co-founded in 1917 during World War I by Crystal Eastman, an attorney activist, and Roger Nash Baldwin.Walker, pp. 17, 20. The focus of the CLB was on freedom of speech, primarily anti-war speech, and on supporting conscientious objectors who did not want to serve in World War I.Walker, pp. 23–24, 30.
Three United States Supreme Court decisions in 1919 each upheld convictions under laws against certain anti-war speech. In 1919, the Court upheld the conviction of Socialist Party leader Charles Schenck for publishing anti-war literature.Walker, p. 26. In Debs v. United States, the court upheld the conviction of Eugene Debs. While the Court upheld a conviction a third time in Abrams v. United States, Justice Oliver Wendell Holmes wrote an important dissent which has gradually been absorbed as an American principle: he urged the court to treat freedom of speech as a fundamental right, which should rarely be restricted.Walker, p. 27.
In 1918, Crystal Eastman resigned from the organization due to health issues.Walker, p. 30. After assuming sole leadership of the CLB, Baldwin insisted that the organization be reorganized. He wanted to change its focus from litigation to direct action and public education.Walker, p. 47.
The CLB directors concurred, and on January 19, 1920, they formed an organization under a new name, the American Civil Liberties Union. Although a handful of other organizations in the United States at that time focused on civil rights, such as the National Association for the Advancement of Colored People (NAACP) and Anti-Defamation League (ADL), the ACLU was the first that did not represent a particular group of persons or a single theme. Like the CLB, the NAACP pursued litigation to work on civil rights, including efforts to overturn the disfranchisement of African Americans in the South that had taken place since the turn of the century.
During the first decades of the ACLU, Baldwin continued as its leader. His charisma and energy attracted many supporters to the ACLU board and leadership ranks.Walker, p. 66. Baldwin was ascetic, wearing hand-me-down clothes, pinching pennies, and living on a minimal salary.Walker, p. 70. The ACLU was directed by an executive committee and was not particularly democratic or egalitarian. New Yorkers dominated the ACLU's headquarters.Walker, p. 67. Most ACLU funding came from philanthropies, such as the Garland Fund.
Free speech era In the 1920s, government censorship was commonplace. Magazines were routinely confiscated under the anti-obscenity Comstock laws; permits for labor rallies were often denied; and virtually all anti-war or anti-government literature was outlawed.Walker, pp. 51–52. Right-wing conservatives wielded vast amounts of power, and activists that promoted unionization, socialism, or government reform were often denounced as un-American or unpatriotic. In one typical instance in 1923, author Upton Sinclair was arrested for trying to read the First Amendment during an Industrial Workers of the World rally.Walker, p. 52.
ACLU leadership was divided on how to challenge civil rights violations. One faction, including Baldwin, Arthur Garfield Hays, and Norman Thomas, believed that direct, militant action was the best path. Hays was the first of many successful attorneys that relinquished their private practices to work for the ACLU.Walker, p. 53. Another group, including Walter Nelles and Walter Pollak, felt that lawsuits taken to the Supreme Court were the best way to achieve change.
During the 1920s, the ACLU's primary focus was on freedom of speech in general and speech within the labor movement particularly.Walker, p. 55 Because most of the ACLU's efforts were associated with the labor movement, the ACLU itself came under heavy attack from conservative groups, such as the American Legion, the National Civic Federation, and Industrial Defense Association and the Allied Patriotic Societies.Walker, p. 57.
In addition to labor, the ACLU also led efforts in non-labor arenas, for example, promoting free speech in public schools.Walker, p, 58. The ACLU was banned from speaking in New York public schools in 1921.Walker, p. 59. The ACLU, working with the NAACP, also supported racial discrimination cases.Walker, p. 60. The ACLU defended free speech regardless of espoused opinions. For example, the reactionary, anti-Catholic, anti-black Ku Klux Klan (KKK) was a frequent target of ACLU efforts, but the ACLU defended the KKK's right to hold meetings in 1923.Walker, p. 61. There were some civil rights that the ACLU did not make an effort to defend in the 1920s, including censorship of the arts, government search and seizure issues, right to privacy, or wiretapping.Walker, p. 68.
Government officials routinely hounded the Communist Party USA, leading it to be the primary client of the ACLU.Walker, p. 63. At the same time, the Communists were very aggressive in their tactics, often engaging in illegal conduct such as denying their party membership under oath. This led to frequent conflicts between the Communists and ACLU. Communist leaders sometimes attacked the ACLU, particularly when the ACLU defended the free speech rights of conservatives, whereas Communists tried to disrupt speeches by critics of the USSR. This uneasy relationship between the two groups continued for decades.
Public schools Scopes trial When 1925 arrived five years after the ACLU was formed the organization had virtually no success to show for its efforts.Walker, p. 71. That changed in 1925, when the ACLU persuaded John T. Scopes to defy Tennessee's anti-evolution law in The State of Tennessee v. John Thomas Scopes. Clarence Darrow, a member of the ACLU National Committee, headed Scopes' legal team. The prosecution, led by William Jennings Bryan, contended that the Bible should be interpreted literally in teaching creationism in school. The ACLU lost the case, and Scopes was fined $100. The Tennessee Supreme Court later upheld the law. Still, it overturned the conviction on a technicality.University of Missouri-Kansas City School of Law, "Tennessee v. John Scopes: The 'Monkey Trial' (1925)" , Famous Trials in American History, last updated April 25, 2005 (last visited January 7, 2008).
The Scopes trial was a phenomenal public relations success for the ACLU.Walker, p. 73. The ACLU became well known across America, and the case led to the first endorsement of the ACLU by a major US newspaper.Walker, p. 75. The newspaper was the St. Louis Post Dispatch. The ACLU continued to fight for the separation of church and state in schoolrooms, decade after decade, including the 1982 case McLean v. Arkansas and the 2005 case Kitzmiller v. Dover Area School District.Berkman, Michael (2010), Evolution, Creationism, and the Battle to Control America's Classrooms, Cambridge University Press, pp. 100–01.
Baldwin was involved in a significant free speech victory of the 1920s after he was arrested for attempting to speak at a rally of striking mill workers in New Jersey. Although the decision was limited to the state of New Jersey, the appeals court's judgment in 1928 declared that constitutional guarantees of free speech must be given "liberal and comprehensive construction", and it marked a major turning point in the civil rights movement, signaling the shift of judicial opinion in favor of civil rights.Walker, pp. 78–79. The case was in New Jersey, State v. Butterworth. Decision quoted by Walker.
The most important ACLU case of the 1920s was Gitlow v. New York, in which Benjamin Gitlow was arrested for violating a state law against inciting anarchy and violence when he distributed literature promoting communism.Walker, p. 79. Although the Supreme Court did not overturn Gitlow's conviction, it adopted the ACLU's stance (later termed the incorporation doctrine) that the First Amendment freedom of speech applied to state laws, as well as federal laws.Walker, p. 80.
Pierce v. Society of Sisters
After the First World War, many native-born Americans had a revival of concerns about the assimilation of immigrants and worries about "foreign" values. Numerous states drafted laws designed to use schools to promote a common American culture, and in 1922, the voters of Oregon passed the Oregon Compulsory Education Act. The law was primarily aimed at eliminating parochial schools, including Catholic schools. It was promoted by groups such as the Knights of Pythias, the Federation of Patriotic Societies, the Oregon Good Government League, the Orange Order, and the Ku Klux Klan.
The Oregon Compulsory Education Act required almost all children in Oregon between eight and sixteen years of age to attend public school by 1926. Associate Director Roger Nash Baldwin, a personal friend of Luke E. Hart, the then–Supreme Advocate and future Supreme Knight of the Knights of Columbus, offered to join forces with the Knights to challenge the law. The Knights of Columbus pledged an immediate $10,000 to fight the law and any additional funds necessary to defeat it.
The case became known as Pierce v. Society of Sisters, a United States Supreme Court decision that significantly expanded coverage of the Due Process Clause in the Fourteenth Amendment. In a unanimous decision, the court held that the act was unconstitutional and that parents, not the state, had the authority to educate children as they thought best. It upheld the religious freedom of parents to educate their children in religious schools.
Early strategy Leaders of the ACLU were divided on the best tactics to use to promote civil liberties. Felix Frankfurter felt that legislation was the best long-term solution because the Supreme Court could not (and in his opinion should not) mandate liberal interpretations of the Bill of Rights. But Walter Pollak, Morris Ernst, and other leaders felt that Supreme Court decisions were the best path to guarantee civil liberties.Walker, p. 81 A series of Supreme Court decisions in the 1920s foretold a changing national atmosphere; anti-radical emotions were diminishing, and there was a growing willingness to protect freedom of speech and assembly via court decisions.Walker, p. 82. The cases included Gitlow (1925), Whitney (1927), Powell (1932), and Patterson (1935).
Free speech expansion
Censorship was commonplace in the early 20th century. State laws and city ordinances routinely outlawed speech deemed obscene or offensive and prohibited meetings or literature promoting unions or labor organizations.Walker, p. 82. Starting in 1926, the ACLU expanded its free speech activities to encompass censorship of art and literature. In that year, H. L. Mencken deliberately broke Boston law by distributing copies of his banned American Mercury magazine; the ACLU defended him and won an acquittal. The ACLU went on to win additional victories, including the landmark case United States v. One Book Called Ulysses in 1933, which reversed a ban by the Customs Department against the book Ulysses by James Joyce.Walker, p. 86. The ACLU only achieved mixed results in the early years, and it was not until 1966 that the Supreme Court finally clarified the obscenity laws in the Roth v. United States and Memoirs v. Massachusetts cases.
The Comstock laws banned the distribution of sex education information based on the premise that it was obscene and led to promiscuous behavior.Walker, p. 85. Mary Ware Dennett was fined $300 in 1928 for distributing a pamphlet containing sex education material. The ACLU, led by Morris Ernst, appealed her conviction and won a reversal, in which judge Learned Hand ruled that the pamphlet's primary purpose was to "promote understanding".