Life, Liberty, and the ACLU: An Interview with Nadine Strossen

Nadine Strossen, president of the American Civil Liberties Union, on rights in the age of P.C.

Since its founding in 1920, the American Civil Liberties Union has arguably been both the highest-profile and the most controversial legal organization in the country. From its early involvement with such well-known defendants as John Scopes and the Scottsboro Boys to its more recent support of free-speech rights for Nazis and opposition to the death penalty, the ACLU has had a major impact on how constitutional rights and civil liberties are discussed and debated. Not surprisingly, the group is also a lightning rod for contrary opinions. While supporters applaud an organization committed to the preservation of civil liberties, critics decry a group increasingly dedicated to left-liberal politics.

The 1991 election of Nadine Strossen as president of the ACLU was widely interpreted as an attempt to return to the group's traditional emphasis on civil liberties such as freedom of speech and freedom of the press as opposed to its involvement with modish issues such as comparable worth and government aid to the homeless. Strossen is a graduate of Harvard Law School and a professor of constitutional law at New York University Law School. As a founding member of the National Coalition Against Censorship's Working Group on Women, she has been a leading supporter of free speech; her book Defending Pornography: Free Speech and the Fight for Women's Rights (Scribner), which will be published in October, articulates a feminist case against pro-censorship feminists.

"[The ACLU's] motto has not changed from 'Etemal vigilance is the price of liberty,'" says Strossen. While few libertarians would find fault with that Jeffersonian aphorism, it is clear that the ACLU's definition of liberty differs dramatically from that of most classical liberals. In the following interview with Contributing Editor Cathy Young, Strossen discusses those differences and articulates the logic behind them.

Reason: What are your priorities as president of the ACLU?

Nadine Strossen: My priority is to be a prorninent, visible spokesperson for civil liberties. Recent events have revealed that civil liberties are never going to be secure unless there is public understanding and support for them. The Supreme Court issues decisions that are protective of rights that are not supported by at least substantial minorities of the population. Politicians run against the Court, and you get something like the Reagan and Bush presidencies stacking the Court and seriously endangering some of our most fundamental rights.

Take two examples where there actually was a great deal of success in eroding rights: reproductive freedom and separation of church and state. Despite the fact that overturning Roe v. Wade and school-prayer decisions were major agenda items for the Reagan and Bush administrations, they did not literally succeed in accomplishing those goals. But reproductive freedom has shrunk, in terms of the regulations the court has allowed states to impose. As a practical matter, that makes abortions very difficult to obtain for many women in this country.

And, although the court did not overturn its school-prayer decisions, it has weakened the standard it uses to review religious incursions into governmental involvement with religion. So we are now fighting off a wave of legislative efforts to get prayer into schools in various indirect ways, the likes of which I hadn't imagined I'd ever see again in my lifetime. By last count, we have eight states and the District of Columbia that have passed laws mandating everything from a moment of silence to a prayer.

The most unique and important function that we serve is to be around all over the country to respond to these blatant violations of rights. We have to be sure that the people are going to support basic principles so that demagogues cannot be elected running against the Bill of Rights and the Supreme Court when it supports the Bill of Rights. For that reason, I think public education has to be the organization's most important priority.

Reason: Are there areas in which exercising one fundamental right precludes exercising others? What do you make of the argument, for example, that hate-speech codes represent an attempt to balance guarantees of free speech with guarantees of equal protection?

Strossen: That is the same argument that's made by folks who seek to restrict what they define as "pornography"—that word is always in quotation marks. It's common to say that we have to choose between freedom of speech or equality, that if you really care about equality you can't possibly be devoted to the First Amendment. I absolutely reject that as a philosophical matter and as a practical matter in the hate-speech context. And in other contexts, I think it's insulting to women, racial minorities—to anybody—to say that we have to choose between freedom of speech and equal opportunity.

I think there may be particular situations at the margins where rights might come into conflict. There may be situations where there's a tension between free exercise of religion on the one hand and non-establishment of religion on the other hand. But in the vast, vast, vast majority of cases, I think those rights are mutually reinforcing. It's that understanding that has led the ACLU from its beginning to attempt to consistently defend all fundamental rights for all people precisely because they are indivisible. If the government is given the power to threaten one right for one person, it can and will use that power to erode other rights for other people.

Reason: So why doesn't the ACLU challenge gun-control laws on Second Amendment grounds?

Strossen: We reexamine our positions when people come forward with new arguments. On the gun issue, I instituted a reexamination a few years ago in response to a number of things, but the most important one was an article by Sanford Levinson at University of Texas Law School that summarized a wave of new historical scholarship. Levinson's argument was that in the 18th century context, a well-regulated militia meant nothing other than people in the privacy of their homes.

So we looked into the historical scholarship there and ended up not being persuaded. The plain language of the Second Amendment in no way, shape, or form, can be construed, I think, as giving an absolute right to unregulated gun ownership. It says, "A well-regulated militia being necessary to the security of a free state, the right to bear arms shall not be infringed." Certainly, when you have the notion of "well-regulated" right in the constitutional language itself, it seems to defy any argument that regulation is inconsistent with the amendment.

Putting all that aside, I don't want to dwell on constitutional analysis, because our view has never been that civil liberties are necessarily coextensive with constitutional rights. Conversely, I guess the fact that something is mentioned in the Constitution doesn't necessarily mean that it is a fundamental civil liberty. So the question becomes, What is the civil-liberties argument of those who would say we should be opposing all gun control? What it comes down to is the very strong belief that having a gun in your home is something that can ultimately fend off the power of a tyrannical government. I find that really unpersuasive in the 20th-century context. Maybe it made sense in the 18th century. I would hope that's the kind of thing we do through words rather than through guns and that, to me, is the function that the First Amendment serves, not the Second Amendment.

Reason: Would you support a total ban on gun ownership?

Strossen: We might very well oppose that. I would think that our present policy would not foreclose opposing that the way we oppose many other kinds of prohibition, such as drug prohibition.

Reason: The issue of trading off rights also comes up in sexual-harassment laws. What's the official ACLU policy on sexual harassment?

Strossen: We have a policy that, along the lines of the Supreme Court's decision last fall, is pretty open-ended. You have to look at all the facts and circumstances in any particular case. We rejected the female employee's position [in Harris v. Forklift Systems] that sexual harassment should extend to anything she considered to be offensive at work. That clearly would allow for restriction of free speech and, unlike market liberals, we believe that employees in private workplaces do have fundamental rights that should be subject to restraint only if necessary to perform the job. We also rejected the employer's argument, which was that to show sexual harassment, you have to show some tangible psychological injury, which is more of a showing than is required in any other anti-discrimination context. We thought that went too far.

In between those two poles, we have to decide on a case-by-case basis. The most contentious case we've had so far, and I really like the way we came out, was the Jacksonville shipyards case. We wrote a brief opposing the court's order to the employer that all sexually suggestive images of women be banned from the workplace. We argued that—to the extent it's not a specifically sexual image that a woman finds offensive and that it's not deliberately thrust in her face repeatedly and directly targeted in a harassing fashion—male or female employees should be free to look at sexual images during their free time. It's a hard argument to make given the case law, which is that there are no free-speech rights in the private workplace. I think it unlikely that the court will accept our suggested remedies.

Reason: What about the conflict between privacy or property rights and speech rights? For example, are owners of private shopping malls obligated to allow people to distribute literature on their property?

Strossen: Our view is that there are certain fundamental individual rights which may not be intruded upon or violated. When ou Constitution was written, the state was the only entity in society that had sufficient power to deprive individuals of fundamental rights. Now we have corporate concerns with far more power over people's lives than the state ever had in the 18th century. The market-liberal response is that if the individual doesn't like what their employer is doing—for example, saying that you cannot smoke at your home—then the individual goes off and gets another job. Our view is that's unrealistic.

And if people are not going to have fundamental freedoms at work, then they are not going to have them for all practical purposes, because that's where they're spending the vast majority of their time. Obviously, if you're talking about a mom-and-pop shop, or if you re talking about an owner-occupied housing unit, then vou have to recognize that there are significant personal rights involved, personal rights that are bound up with property rights. So we are striking a balance that would not allow lack of regulation in what we see to be the service of the individual rights.

Reason: So your position is that owners of shopping malls have to permit the distribution of materials?

Strossen: Yes. They can disassociate themselves from the message so they don't seem to be endorsing it. They can have disclaimer signs. They can have counter-speech if they want. Individual stores do not have to serve as a forum. But the common area in the mall, which is the functional equivalent of a sidewalk outside the traditional store or a town square, should serve as a public forum. That's its function. Around the country, most of the human traffic and the opportunity for exchanging ideas is in shopping centers or sidewalks outside shopping centers.

This is one of those cases where rights come into tension with each other. There are some hard cases. At our last national board meeting, one of our board members brought up another example. He pointed out that there are more and more retirement-type villages that are essentiallv completely self-contained communities. These people never go outside and the only way to communicate with them is to get inside to the common areas, to the mailbox areas. Yet there are very strong prohibitions against that.

Now you're talking about somebody's private dwelling. It seems that the counter concern to free speech is much more significant. But what if you re talking about political speech and getting information distributed about candidates or information that people can't afford to mail? In each particular situation you have to make a careful evaluation.

Reason: What about cases where a landlord has moral objections to certain activities that tenants may engage in at the rental property?

Strossen: We would oppose regulation that would intrude on an owner-occupied dwelling; it's just being consistent with the right to privacy. Then you get harder questions when you say, Well, suppose it s large enough so that it's not really a private dwelling. Some lines are going to be seemingly arbitrary. From our position, if you are not saying absolutely no regulation, then we have to draw the line at some point.

There are constantly going to be some difficult issues if you have a fidelity to all rights and don't automatically exalt one above the other. We are constantly drawing balances, even within the First Amendment itself.

Reason: What is the ACLU's position on the idea of extending the Fairness Doctrine to all media, including print? Should people be ensured of venues in which to express their views?

Strossen: We have historically supported the Fairness Doctrine, although I've dissented from that position, as have other prominent people within the ACLU. Our basis for supporting it was so narrow and so historically contingent that I really have my doubts as to whether even the Fairness Doctrine itself would be reaffirmed if the ACLU National Board took another look at it. It was based on the notions of spectrum scarcity and of government having conveyed a public trust, if you will, to the broadcasters. Both facts have changed substantially. We have never taken that position with respect to any other media and certainly have never taken it with respect to print media.

In Turner Broadcasting v. FCC we have some of these issues. I think it's going to be one of the most important First Amendment decisions from the Supreme Court for many years. It will force the court to address the extent to which the cable industry should be dealt with more like the print media, which is not subjected to governmentally imposed access requirements, or the extent to which cable will be treated more like TV and radio, with their Fairness Doctrine-type constraints.

To the extent that you can show in particular communities that the cable company is given a government monopoly and nobody can come in there and compete, it is absolutely fair to impose common carriage-type requirements on them. [A "common carrier," such as a phone company, must provide service to all legitimate customers and cannot make editorial decisions about their speech.] I don't think they can use a government-bestowed monopoly to engage in content-based or viewpoint-based distinctions as to who can use their medium any more than a telephone company can. We also recognize that cable companies do serve as publishers themselves. They create programming, so we argue for a modified common-carriage approach. That's the same approach we take to the whole National Information Infrastructure. You have to be sure that it is an open highway for all comers to exercise their voices, so long as it is the only game in town. It cannot serve as a bottleneck preventing diverse speech. But beyond that, you have to let it exercise its own First Amendment rights.

Our hope is that the NII will shape up in such a way that a lot of these questions will become moot. There is a technological capability to have universal two-way interactive networks of communications so that the old shibboleth—"We have freedom of the press for everybody who can afford a printing press"—will no longer be true, because everybody will in some sense own a printing press. So our major emphasis in this area now is working in Congress for legislation in setting up this information superhighway. We want to be sure that the technological and economic decisions that are made at this point will create that kind of interactive universal network.

Reason: Hasn't the ACLU neglected property rights? Should there be a fundamental distinction between civil liberties, such as speech or religion, and property ownership?

Strossen: Well, there certainly isn't any distinction in my mind. And there certainly isn't any distinction in terms of ACLU policy. People have rights. Property doesn't have rights. Some of the rights people have are closely associated with property. The Due Process Clause says government cannot deprive people of life, liberty, or property without due process of law. We certainly have many cases involving that privilege.

The Supreme Court really hasn't done too much in this area, so the examples that I can think of go back a long way. They were cases in the 1960s that involved government jobs or government benefits in which the courts analyzed the benefit as property. We have never taken the position, despite repeated requests from certain elements within the organization, that you should have a fundamental right to "property," that the government should guarantee an income or guarantee a house. However, we have always taken the position that, if the government chooses to distribute certain benefits, it may not do so in a way that violates fundamental rights, including depriving you of the property that the government has chosen to give you, without certain procedural protections.

Reason: Does the ACLU support enforcement of the Takings Clause?

Strossen: I don't think that we would have any problem supporting a meaningful interpretation of the Takings Clause. I think it's very dangerous to read certain language out of the Constitution. If the Court can do it from one portion of the Constitution, it can do it for other portions. Therefore, I'm very philosophically supportive of the efforts to put real meaning back into the Takings Clause and to overturn the Slaughterhouse cases which, of course, completely read the Privileges and Immunities Clause out of the Constitution. [In an 1873 decision, the Court narrowly interpreted this clause of the 14th Amendment and allowed the states broad regulatory powers.]

Reason: The ACLU has come down in favor of hate-crime laws and enhanced-penalty statutes. Where do you draw the line so that people are not penalized for their views or ideas?

Strossen: The ACLU policy is rather subtle and calls for an evaluation of each particular law and each particular application of each law. We rejected the position taken by people I know and respect that all such laws will in effect constitute thought crimes. As an organization that has long supported anti-discrimination laws, we thought that laws could be framed and enforced in such a way that they would simply be penalizing intentional discrimination in choosing a crime victim, much the way anti-discrimination laws take something which is not even illegal in the first place—refusing to hire, refusing to rent to somebody—and make it against the law if you have a certain intent. Our reasoning was, if you can do that with something that's not independently illegal, can't you take something that's already a crime and make it a more severe crime?

The potential for abuse is very great. Our policy is that we will not oppose such laws if there is a very tight causal nexus to the evidence of intentional discriminatory selection of a victim and that it is proved beyond a reasonable doubt. The one case where we concluded that the standard was satisfied was the U.S. Supreme Court case Wisconsin v. Mitchell, which was decided in 1993.

The Wisconsin law was very narrowly drafted as these things go. Unlike other laws we have opposed, it did talk about intentional selection of the victim on the basis of discrimination. The particular evidence in the Wisconsin case involved a statement that the defendant made literally in the process of inciting a crime. I think that speech would have been independently punishable as intentional incitement.

What's distressing is that the Court's opinion, which was unanimous, didn't go into any of the potential dangers to free speech. It didn't emphasize the particularly tight nexus in that case between speech and the crime, or the narrow wording of the Wisconsin statute. I think it really opens the door to all kinds of abuses. I strongly suspect that we will be in a position of opposing most applications of most such laws.

Reason: The ACLU has opposed school vouchers on church-state grounds. How did you arrive at that position?

Strossen: We have a policy of opposing vouchers that goes back many, many years. The old policy deals with the issue of whether vouchers can be used to finance parochial schools. Vouchers were initially opposed because it was our perception that they were proposed as a ruse to get around Supreme Court decisions prohibiting direct governmental funding of parochial schools. The [voucher plan voted down in California last year], for instance, was structured in such a way that religious schools were clearly exclusive beneficiaries in the sense that the amount of money was set at such a level that the only tuition that it could possibly pay for was parochial school. That violates fundamental First Amendment principles.

Reason: What is the distinction between taking a Pell grant and going to a Catholic university and taking a voucher and going to a parochial school?

Strossen:The Pell grant is clearly constitutional because it's the government giving money directly to individuals in a nondiscriminatory way in terms of how they are going to use it and the ideology or belief that they reflect in their individual choices. I think the Supreme Court would look at the mechanics of who gets the money and, in a lot of voucher programs, the money goes directly to the schools, not to the parents. Some of them present a problem even at the superficial level.

You have to ask, just as you always do in separation-of-church-and-state cases, what is the purpose of the program, and what is the effect of the program? If you can show that the purpose is not to neutrally help all individuals pursue education and you can predict that it will have the effect of singling out parochial schools and helping them, that's very different from the intent and the fact of helping individuals. These are not bright-line distinctions. You have to evaluate all the facts and circumstances whenever you get into separation of church and state.

The California plan also had some other problems, as I recall. The vouchers could be used for schools that were engaging in racial and gender discrimination [actually, the California initiative explicitly excluded schools practicing racial discrimination], and the ACLU also has a problem with that. I wrote the brief for our Bob Jones University case, in which we argued that the government could not subsidize racially discriminatory schools, even indirectly through the tax system. The way the California program was set up, it could do that, for gender discriminatory ones,too. But you can say, well, to some extent, there are always some government subsidies, right? They all get fire protection.

Reason: Don't people use federal money to go to all-female colleges?

Strossen: Exactly. Again, one has to look at the degree of involvement, the degree of subsidization.

Reason: If someone devised a school-voucher plan that was reasonably neutral, in which the money went to individuals and there was no overwhelming bias to parochial schools, do you think the ACLU would support such a plan?

Strossen: I can't imagine an affirmative civil liberties basis for supporting it. The question would be, Are there continuing civil-liberty objections to it? If we got to a situation that was not as egregious as what we saw in California recently, we would have to take a hard look at it. But my own view is that we would not per se exclude programs that included parochial schools any more than we per se oppose Pell grants.

Reason: You mentioned earlier the idea of an employer banning his employees from smoking. Are you concerned by the movement toward a prohibition on smoking?

Strossen: Absolutely. The form that those regulations often take is employers prohibiting their employees from smoking not only in the workplace but even at home. Our view is that what you do in your own time and in your own space, if it' s not directly undermining your efficiency as a worker, it's your business, not your employer's.

We certainly wouldn't object to passing on in a fair way extra costs that are incurred as a result of personal choices, but that's a very different thing from absolutely prohibiting it and denying a person that choice. We have been lobbying for laws and we've been successful. More than half the states now have laws that prohibit employers from regulating what employees do in their own time. Some of the laws are targeted specifically at smoking. Others are written more broadly and basically say, as long as it's their own place and their own time, they can do what they want.

Reason: Do you think regulations of smoking in public are similarly troubling?

Strossen: If you gave me a specific example, I could answer that. Our policy on regulation of smoking calls for a fact-specific analysis that reasonable regulations are designed to protect somebody from second-hand smoke. I think [an outright ban] could conceivably raise a civil-liberties problem. It's a bit of a stretch. You would have to say, well, a restaurant is a public accommodation, which means that they have to be open to all comers, which they still are. They are just saying that, while you're there, you can't engage in this particular behavior which does have demonstrably adverse consequences. It seems to me that if you're going to make the argument that it was violating some fundamental right of the smoker, you have to in some way play up the fact that smoking is an addiction, that you're discriminating against this disabled person.

I do see [smoking prohibition] as kind of hysterical and a misguided response from a public-health point of view. I think it is a policy that would increase smoking, particularly among the young where we want their education to discourage them from undertaking health risks. It's ironic, because smoking is such a great example of where consumption has gone down dramatically through education because of the absence of prohibition.

Reason: How does the ACLU pick specific cases in which to become involved?

Strossen: I think one of the criteria for our work is that by definition it has to be reactive. The government is doing something; we're reacting against it. We also have to have the tools to do something constructive. If something is clearly a loser, then we're not going to take the case. We're not going to waste the resources. The irony is that most of our cases are completely uncontroversial within the ranks of civil libertarians. They're attempts to enforce rights that even the Supreme Court would say are clear rights. But it's one thing for the Supreme Court to say it, and it's another thing for the local police chief to recognize it, the local school board to know about it, the local town council to honor it.