The American Civil Liberties Union (ACLU) is a nonpartisan non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States."^[5] It works through litigation, lobbying, and community education. Founded in 1920 by Crystal Eastman, Roger Baldwin and Walter Nelles, the ACLU has over 500,000 members and has an annual budget over $100 million. Local affiliates of the ACLU are active in all 50 states and Puerto Rico. The ACLU provides legal assistance in cases in which it considers civil liberties to be at risk. Legal support from the ACLU can take the form of direct legal representation, or preparation of amicus curiae briefs expressing legal arguments (when another law firm is already providing representation).

When the ACLU was founded in 1920, its focus was on freedom of speech, primarily for anti-war protesters. During the 1920s, the ACLU expanded its scope to also include protecting the free speech rights of artists and striking workers, and working with the National Association for the Advancement of Colored People (NAACP) to combat racism. During the 1930s, the ACLU started to engage in work combating police misconduct and Native American rights. Most of the ACLU's cases came from the Communist party and the Jehovah's Witnesses. In 1940, ACLU leadership was caught up in the Red Scare, and voted to exclude Communists from its leadership positions. During World War II, the ACLU defended Japanese American citizens who were forcibly relocated to internment camps. During the Cold War, the ACLU headquarters was dominated by anti-communists, but many local affiliates defended members of the Communist Party.

By 1964, membership had risen to 80,000, and the ACLU was directly involved in a major expansion of civil liberties. In the 1960s, the ACLU continued its decades-long effort to enforce separation of church and state, and it also defended several anti-war activists during the Vietnam War who burnt draft cards or wore armbands. The ACLU was involved in the Miranda case, which addressed misconduct by police during interrogations; and in the New York Times case which established new protections for newspapers reporting on government activities. In the 1970s and 1980s, the ACLU ventured into new legal areas, defending homosexuals, students, prisoners, and the poor. In the twenty-first century, the ACLU has fought the teaching of creationism in public schools, and challenged some provisions of anti-terrorism legislation as infringing on civil liberties.

In addition to representing persons and organizations in lawsuits, the ACLU lobbies for policies that have been established by its board of directors. Current positions of the ACLU include: opposing the death penalty; supporting gay marriage and the right of gays to adopt; supporting birth control and abortion rights; eliminating discrimination against women, minorities, and gays; supporting the rights of prisoners and opposing torture; supporting the right of religious persons to practice their faiths without government interference; and opposing any government preference for religion over non-religion, or for particular faiths over others.

Organization[link]

Leadership[link]

Anthony D. Romero has been executive director since 2001.

The ACLU is led by an executive officer and a president (Anthony Romero and Susan Herman, respectively, in 2011). The executive officer acts as chairman of the ACLU's board of directors, and is responsible for fundraising and facilitating policy-setting. The president manages the day-to-day operations of the organization.^[6][7] The board of directors consists of 80 persons, including representatives from each state affiliate, as well as at-large delegates.

The leadership of the ACLU does not always agree on policy decisions: Differences of opinion within the ACLU leadership have sometimes grown into major debates. In 1937, an internal debate erupted over whether to defend Henry Ford's right to distribute anti-union literature.^[8] In 1939, a heated debate took place over whether to prohibit communists from serving in ACLU leadership roles.^[9] During the early 1950s the board was divided on whether to defend communists persecuted under McCarthyism.^[10] In 1968, a schism formed over whether to represent Dr. Spock's anti-war activism.^[11] In 1973, there was internal conflict over whether to call for the impeachment of Richard Nixon.^[12] In 2005, there was internal conflict about whether or not a gag rule should be imposed on ACLU employees to prevent publication of internal disputes.^[13]

Funding[link]

The ACLU consists of two separate non-profit organizations: the ACLU, and the ACLU Foundation. Both organizations engage in litigation, advocacy of civil rights, and education. The ACLU is a 501(c)(4) corporation which also engages in political lobbying, and donations to that component of the ACLU are not tax deductible. The ACLU Foundation is a 501(c)(3) non-profit corporation, which does not engage in lobbying, and donations to it are tax deductible.^[14]

In 2011, the ACLU and the ACLU Foundation had a combined income of $109 million, originating from grants (60%), membership donations (23%), and bequests (17%). Membership dues account for $25 million per year and are treated as donations; members choose the amount they pay annually, averaging $50 per member per year.^[15] In 2011, the combined expenses of the ACLU and ACLU Foundation were $106 million, spent on Programs (88%), management (7%), and fundraising (5%).^[16] The ACLU Foundation accounts for about 75% of the combined budget, and the ACLU about 25%.^[17]

The ACLU solicits donations to its charitable foundation. The ACLU is accredited by the Better Business Bureau, and the Charity Navigator has ranked the ACLU with a four-star rating.^[18][19] The local affiliates also solicit their own funding, and some receive funds from the national ACLU. The distribution and amount of funding for state affiliates varies from state to state. Smaller affiliates with fewer resources, such as that in Nebraska, receive subsidies from the national ACLU.

In October 2004, the ACLU rejected $1.5 million from both the Ford Foundation and Rockefeller Foundation because the Foundations had adopted language from the USA PATRIOT Act in their donation agreements, including a clause stipulating that none of the money would go to "underwriting terrorism or other unacceptable activities." The ACLU views this clause, both in Federal law and in the donors' agreements, as a threat to civil liberties, saying it is overly broad and ambiguous.^[20][21]

Due to the nature of its legal work, the ACLU is often involved in litigation against governmental bodies, which are generally protected from adverse monetary judgments: a town, state or federal agency may be required to change its laws or behave differently, but not to pay monetary damages except by an explicit statutory waiver. In some cases, the law permits plaintiffs who successfully sue government agencies to collect money damages or other monetary relief. In particular, the Civil Rights Attorney's Fees Award Act of 1976 leaves the government liable in some civil rights cases. Fee awards under this civil rights statute are considered "equitable relief" rather than damages, and government entities are not immune from equitable relief.^[22] Under laws such as this, the ACLU and its state affiliates sometimes share in monetary judgments against government agencies. In 2006, the Public Expressions of Religion Protection Act sought to prevent monetary judgments in the particular case of violations of church-state separation.^[23]

The ACLU has received court awarded fees from opponents, for example, the Georgia affiliate was awarded $150,000 in fees after suing a county demanding the removal of a Ten Commandments display from its courthouse;^[24] a second Ten Commandments case in the State, in a different county, led to a $74,462 judgment.^[25] The State of Tennessee was required to pay $50,000, the State of Alabama $175,000, and the State of Kentucky $121,500, in similar Ten Commandments cases.^[26][27]

State affiliates[link]

Howard Simon, executive director of the Florida affiliate, joins in a protest of the Guantanamo Bay detentions with Amnesty International.

Most of the organization’s workload is performed by the 53 local affiliates. There is an affiliate in each state and in Puerto Rico. California has three affiliates.^[28] The affiliates operate autonomously from the national organization: each affiliate has its own staff, executive director, board of directors, and budget. Each affiliate consists of two non-profit corporations: a 501(c)(3) corporation that does not perform lobbying, and a 501(c)(4) corporation which is entitled to lobby.

ACLU affiliates are the basic unit of the ACLU's organization and engage in litigation, lobbying, and public education. For example, in a twenty-month period beginning January 2004, the ACLU's New Jersey chapter was involved in fifty-one cases according to their annual report—thirty-five cases in state courts, and sixteen in federal court. They provided legal representation in thirty-three of those cases, and served as amicus in the remaining eighteen. They listed forty-four volunteer attorneys who assisted them in those cases.

Positions[link]

The ACLU's official position statements, as of January 2012, included the following policies:

• Affirmative action - The ACLU supports affirmative action.^[29]
• Birth control and abortion - The ACLU supports the right to abortion, as established in the Roe v. Wade decision. The ACLU believes that everyone should have affordable access to the full range of contraceptive options. The ACLU's Reproductive Freedom Project manages efforts related to reproductive rights.^[30]
• Criminal Law Reform - The ACLU seeks an end to excessively harsh sentences that it feels "stand in the way of a just and equal society". The ACLU's Criminal Law Reform Project focuses on this issue.^[31]
• Death Penalty - The ACLU is opposed to the death penalty in all circumstances. The ACLU's Capital Punishment Project focuses on this issue.^[32]
• Free Speech - The ACLU supports free speech, including the right to express unpopular ideas, such as flag desecration.^[33]
• Campaign funding - The ACLU believes that the current system is badly flawed, and supports a system based on public funding. The ACLU supports full transparency to identify donors.^[34]
• Gun control - The ACLU does not have a position on gun control. ACLU states that neither "the possession of guns nor the regulation of guns raises a civil liberties issue".^[35]
• HIV/AIDS - The policy of the ACLU is to "create a world in which discrimination based on HIV status has ended, people with HIV have control over their medical information and care, and where the government’s HIV policy promotes public health and respect and compassion for people living with HIV and AIDS." This effort is managed by the ACLU's AIDS Project.^[36]
• Human Rights - The ACLU's Human Rights project advocates (primarily in an international context) for children's rights, immigrants rights, and other international obligations.^[37]
• Immigrants' Rights - The ACLU supports civil liberties for immigrants to the United States.^[38]
• Lesbian, gay, bisexual and transgender rights - The ACLU's LGBT Rights Project supports equal rights for all gays and lesbians, and works to eliminate discrimination. The ACLU supports equal civil marriage and adoption rights for LGBT couples.^[39]
• National Security - The ACLU is opposed to compromising civil liberties in the name of national security. In this context, the ACLU has condemned government use of spying, indefinite detention without charge or trial, and government-sponsored torture. This effort is led by the ACLU's National Security Project.^[40]
• Prisoners' Rights - The ACLU's National Prison Project believes that incarceration should only be used as a last resort, and that prisons should focus on rehabilitation. The ACLU works to ensure that prisons treat prisoners in accordance with the Constitution and domestic law.^[41]
• Privacy and technology - The ACLU's Project on Speech, Privacy, and Technology promotes "responsible uses of technology that enhance privacy protection", and opposes uses "that undermine our freedoms and move us closer to a surveillance society".^[42]
• Racial Issues - The ACLU's Racial Justice Program combats racial discrimination in all aspects of society, including the educational system, justice system, and the application of the death penalty.^[43]
• Religion - The ACLU supports the right of religious persons to practice their faiths without government interference. The ACLU believes the government should neither prefer religion over non-religion, nor favor particular faiths over others. The ACLU is opposed to prayer in schools.^[44]
• Voting rights - The ACLU believes that impediments to voting should be eliminated, particularly if they disproportionately impact minority or poor citizens. The ACLU believes that misdemeanor convictions should not lead to a loss of voting rights. The ACLU's Voting Rights Project leads this effort.^[45]
• Women's rights - The ACLU works to eliminate discrimination against women in all realms. The ACLU encourages government to be proactive in stopping violence against women. These efforts are led by the ACLU's Women's' Rights project.^[46]

Support and opposition[link]

The ACLU is supported by a variety of persons and organizations. There were over 500,000 members in 2011, and the ACLU annually receives thousands of grants from hundreds of charitable foundations. Allies of the ACLU in legal actions include the National Association for the Advancement of Colored People, the American Jewish Congress, People For the American Way, the Electronic Frontier Foundation, Americans United for Separation of Church and State, and the National Organization for Women.

The ACLU has been criticized by liberals, such as when it excluded communists from its leadership ranks, when it defended Neo-Nazis, when it declined to defend Paul Robeson, or when it opposed the passage of the National Labor Relations Act.^[47][48] Conversely, the ACLU has been criticized by conservatives, such as when it argued against prayer in schools, or when it opposed the Patriot Act.^[49] The ACLU has supported conservative figures such as Rush Limbaugh, George Wallace, Henry Ford, and Oliver North; and it has supported liberal figures such as Dick Gregory, H. L. Mencken, Rockwell Kent, and Dr. Benjamin Spock.^{[11][50][51][52][53][54][55][56]}

A major source of criticism are legal cases in which the ACLU represents an individual or organization that promotes offensive or unpopular viewpoints, such as the Ku Klux Klan, Neo-Nazis, the Nation of Islam, the North American Man/Boy Love Association, or the Westboro Baptist Church. The ACLU responded to these criticisms by stating "It is easy to defend freedom of speech when the message is something many people find at least reasonable. But the defense of freedom of speech is most critical when the message is one most people find repulsive."^[57]

Early years[link]

CLB era[link]

Crystal Eastman was one of the co-founders of the CLB, the predecessor to the ACLU.

The predecessor to the ACLU was the National Civil Liberties Bureau (CLB).^[58] The CLB was founded by Crystal Eastman and Roger Baldwin in 1917.^[59] Supporters of the CLB generally fell into one of three groups: social reformers, Protestant clergy, and conservative lawyers.^[60] In 1918, Baldwin became the primary leader of the CLB, as Eastman succumbed to ill health.^[61]

The focus of the CLB was on freedom of speech, primarily anti-war speech, and on supporting conscientious objectors who wished to avoid serving in World War I.^[62] Three Supreme Court decisions in 1919 each upheld convictions outlawing certain kinds of anti-war speech. In 1919, Socialist party leader Charles Schenck's conviction for publishing anti-war literature was upheld by the Supreme Court.^[63] Then, in Debs v. United States, the court upheld the conviction of Eugene Debs. But five months later, justice Oliver Wendell Holmes wrote an important dissent in Abrams v. United States, in which he urged the court to treat freedom of speech as a fundamental right, which should only rarely be outlawed.^[64]

After taking over leadership of the CLB, Baldwin insisted that the organization be reorganized, and change its focus from litigation to direct action and public education.^[65] The CLB directors concurred, and on January 19, 1920, the ACLU was formed.^[65] Although there were a handful of other organizations in the United States at that time that focused on civil rights, such as the NAACP and Anti-Defamation League, the ACLU was the first that did not limit itself to a particular group of persons, or to a single theme.^[65]

During its first decades of its existence, Baldwin continued to be the leader of the ACLU. His charisma and energy attracted many supporters to ACLU leadership ranks.^[66] Baldwin was a very ascetic individual, who wore hand-me-down clothes, pinched pennies, and lived on a very small salary.^[67] The ACLU was directed by an executive committee, but the committee was not particularly democratic or egalitarian: since the ACLU was headquartered in New York, the executive committee was dominated by New Yorkers.^[68] Most ACLU funding came from philanthropies, such as the Garland Fund.^[67]

Free speech era[link]

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.^[69] 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.^[69] 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.^[70]

Norman Thomas was one of the early leaders of the ACLU.

ACLU leadership was divided on how to challenge the civil rights violations. One faction, including Baldwin, Arthur Garfield Hays and Norman Thomas, believed that direct, militant action was the best path.^[70] Hays was the first of many successful attorneys that relinquished their private practices to work for the ACLU.^[71] Another group, including Walter Nelles and Walter Pollak felt that lawsuits, taken to the Supreme Court, were the best way to achieve change.^[71] Both groups worked in tandem, but they equally worshiped the Bill of Rights and the US Constitution.^[71]

During the 1920s, the ACLU's primary focus was on freedom of speech in general, and speech within the labor movement particularly.^[72] 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.^[73]

In addition to labor, the ACLU also led efforts in non-labor arenas, for example, promoting free speech in public schools.^[74] The ACLU itself was banned from speaking in New York public schools in 1921.^[75] The ACLU, working with the NAACP, also supported racial discrimination cases.^[76] The ACLU defended free speech regardless of the opinions being espoused. 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.^[77] 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.^[78]

The Communist party of the United States was routinely harassed and oppressed by government officials, leading it to be the primary client of the ACLU.^[79] The Communists were very aggressive in their tactics, often engaging in illegal or unethical conduct, and this led to frequent conflicts between the Communists and the ACLU.^[79] Communist leaders often attacked the ACLU, particularly when the ACLU defended the free speech rights of conservatives.^[79] This uneasy relationship between the two groups continued for decades.^[79]

Scopes trial[link]

When 1925 arrived – five years after the ACLU was formed – the organization had virtually no success to show for its efforts.^[80] That changed in 1925, when the ACLU persuaded John T. Scopes to defy Tennessee's anti-evolution law in a court test. 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 but overturned the conviction on a technicality.^[81][82]

The Scopes trial was a phenomenal public relations success for the ACLU.^[83] The ACLU became well known across America, and the case led to the first endorsement of the ACLU by a major U.S. newspaper.^[84] 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.^[85]

Baldwin himself was involved an important 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 judgement 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.^[86]

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.^[87] 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.^[88]

First Victories[link]

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 Pollack, Morris Ernst, and other leaders felt that Supreme Court decisions were the best path to guarantee civil liberties.^[89] A series of Supreme Court decisions in the 1920s foretold of 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.^[90]

Free speech[link]

The ACLU defended H. L. Mencken when he was arrested for distributing banned literature.

Censorship was commonplace in the early 20th century. State laws and city ordinances routinely outlawed speech deemed to be obscene or offensive, and prohibited meetings or literature that promoted unions or labor organization.^[55] Starting in 1926, the ACLU began to expand its free speech activities to encompass censorship of art and literature.^[55] 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.^[55] 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.^[91] 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 distribution of sex education information, based on the premise that it was obscene and led to promiscuous behavior^[92] 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 main purpose was to "promote understanding".^[92]

The success prompted the ACLU to broaden their freedom of speech efforts beyond labor and political speech, to encompass movies, press, radio and literature.^[92] The ACLU formed the National Committee on Freedom from Censorship in 1931 to coordinate this effort.^[92] By the early 1930s, censorship in the United States was diminishing.^[91]

Two major victories in the 1930s cemented the ACLUs campaign to promote free speech. In Stromberg v. California, decided in 1931, the Supreme Court sided with the ACLU and affirmed the right of a communist party member to salute a communist flag. The result was the first time the Supreme Court used the Due Process Clause of the 14th amendment to subject states to the requirements of the first amendment.^[93] In Near v. Minnesota, also decided in 1931, the Supreme Court ruled that states may not exercise prior restraint and prevent a newspaper from publishing, simply because the newspaper had a reputation for being scandalous.^[94]

1930s[link]

The late 1930s saw the emergence of a new era of tolerance in the United States.^[95] National leaders hailed the Bill of Rights, particularly as it protected minorities, as the essence of democracy.^[95] The 1939 Supreme Court decision in Hague v. Committee for Industrial Organization affirmed the right of communists to promote their cause.^[95] Even conservative elements, such as the American Bar Association began to campaign for civil liberties, which were long considered to be the domain of left-leaning organizations. By 1940, the ACLU had achieved many of the goals it set in the 1920s, and many of its policies were the law of the land.^[95]

Expansion[link]

In 1929, after the Scopes and Dennett victories, Baldwin perceived that there was vast, untapped support for civil liberties in the United States.^[91] Baldwin proposed an expansion program for the ACLU, focusing on police brutality, Native American rights, African American rights, censorship in the arts, and international civil liberties.^[91] The board of directors approved Baldwin's expansion plan, except for the international efforts.^[96]

The ACLU played a major role in passing the 1932 Norris – La Guardia Act, a federal law which prohibited employers from preventing employees from joining unions, and stopped the practice of outlawing strikes, unions, and labor organizing activities with the use of injunctions.^[96] The ACLU also played a key role in initiating a nationwide effort to reduce misconduct (such as extracting false confessions) within police departments, by publishing the report Lawlessness in Law Enforcement in 1931, under the auspices of Herbert Hoover's Wickersham Commission.^[96] In 1934, the ACLU lobbied for the passage of the Indian Reorganization Act, which restored some autonomy to Native American tribes, and established penalties for kidnapping native American children.^[96]

Although the ACLU deferred to the NAACP for litigation promoting civil liberties for African Americans, the ACLU did engage in educational efforts, and published Black Justice in 1931, a report which documented institutional racism throughout the South, including lack of voting rights, segregation, and discrimination in the justice system.^[97] Funded by the Garland Fund, the ACLU also participated in producing the influential Margold Report, which outlined a strategy to fight for civil rights for blacks.^[98][99] The ACLU's plan was to demonstrate that the "separate but equal" policies governing the Southern discrimination were illegal because blacks were never, in fact, treated equally.^[98]

Depression era and the New Deal[link]

In 1932 – twelve years after the ACLU was founded – it had achieved significant success: the Supreme Court had embraced the free speech principles espoused by the ACLU, and the general public was becoming more supportive of civil rights in general.^[100] But the Great Depression brought new assaults on civil liberties: the year 1930 saw a large increase in the number of free speech prosecutions, a doubling of the number of lynchings, and all meetings of unemployed persons were banned in Philadelphia.^[101]

The Franklin D. Roosevelt administration proposed the New Deal to combat the depression. ACLU leaders were of mixed opinions about the New Deal, since many felt that it represented an increase in government intervention into personal affairs, and because the National Recovery Administration suspended anti-trust legislation.^[102] Roosevelt was not personally interested in civil rights, but did appoint many civil libertarians to key positions, including Interior Secretary Harold Ickes, a member of the ACLU.^[102][103]

The economic policies of the New Deal leaders were often aligned with ACLU goals, but social goals were not.^[103] In particular, movies were subject to a barrage of local ordinances banning screenings that were deemed immoral or obscene.^[104] Even public health films portraying pregnancy and birth were banned; as was Life magazine's April 11, 1938 issue which included photos of the birth process. The ACLU fought these bans, but did not prevail.^[105]

The Catholic Church attained increasing political influence in the 1930s, and used its influence to promote censorship of movies, and to discourage publication of birth control information. This conflict between the ACLU and the Catholic Church led to the resignation of the last Catholic priest from ACLU leadership in 1934; a Catholic priest would not be represented there again until the 1970s.^[106]

The ACLU took no official position on president Franklin Delano Roosevelt's 1937 court-packing plan, which threatened to increase the number of Supreme Court justices, unless the Supreme Court reversed its course and began approving New Deal legislation.^[107] The Supreme Court responded by making a major shift in policy, and no longer applied strict constitutional limits to government programs, and also began to take a more active role in protecting civil liberties.^[107]

The first decision that marked the court's new direction was De Jonge v. Oregon, in which a communist labor organizer was arrested for calling a meeting to discuss unionization.^[108] The ACLU attorney Osmond Fraenkel, working with International Labor Defense, defended De Jonge in 1937, and won a major victory when the Supreme Court ruled that "peaceable assembly for lawful discussion cannot be made a crime."^[109] The De Jong case marked the start of an era lasting for a dozen years, during which Roosevelt appointees (led by Hugo Black, William O. Douglas, and Frank Murphy) established a body of civil liberties law.^[108] In 1938, Justice Harlan F. Stone wrote the famous "footnote four" in United States v. Carolene Products Co. in which he suggested that state laws which impede civil liberties would – henceforth – require compelling justification.^[110]

Senator Robert F. Wagner proposed the National Labor Relations Act in 1935, which empowered workers to unionize. Ironically, the ACLU, after 15 years of fighting for workers rights, initially opposed the act (it later took no stand on the legislation) because some ACLU leaders feared the increased power the bill gave to the government.^[111] The newly formed National Labor Relations Board (NLRB) posed a dilemma for the ACLU, because in 1937 it issued an order to Henry Ford, prohibiting Ford from disseminating anti-union literature.^[8] Part of the ACLU leadership habitually took the side of labor, and that faction supported the NLRB's action.^[8] But part of the ACLU supported Ford's right to free speech.^[8] ACLU leader Arthur Garfield Hays proposed a compromise (supporting the auto workers union, yet also endorsing Ford's right to express personal opinions), but the schism highlighted a deeper divide that would become more prominent in the years to come.^[8]

The ACLU's support of the NRLB was a major development for the ACLU, because it marked the first time it accepted that a government agency could be responsible for upholding civil liberties.^[112] Until 1937, the ACLU felt that civil rights were best upheld by citizens and private organizations.^[112]

Some factions in the ACLU proposed new directions for the organization. In the late 1930s, some local affiliates proposed shifting their emphasis from civil liberties appellate actions, to becoming a legal aid society, centered on store front offices in low income neighborhoods. The ACLU directors rejected that proposal.^[113] Other ACLU members wanted the ACLU to shift focus into the political arena, and to be more willing to compromise their ideals in order to strike deals with politicians. This initiative was also rejected by the ACLU leadership.^[113]

Jehovah's Witnesses[link]

The ACLU's support of defendants with unpopular, sometimes extreme, viewpoints have produced many landmark court cases and established new civil liberties.^[110] One such defendant was the Jehovah's Witnesses, who were involved in a large number of Supreme Court cases.^[110][114] Cases that the ACLU supported included Lovell v. Griffin (which struck down a city ordinance required a permit before a person could distribute "literature of any kind"); Martin v. Struthers (struck down an ordinance prohibiting door-to-door canvassing); and Cantwell v. Connecticut (which reversed the conviction of a Witness that was reciting offensive speech on a street corner).^[115]

The most important cases involved statutes requiring flag salutes.^[115] The Jehovah's Witnesses felt that saluting a flag was contrary to their religious beliefs. Two children were convicted in 1938 of not saluting the flag.^[115] The ACLU supported their appeal to the Supreme Court, but the court affirmed the conviction, in 1940.^[116] But three years later, in West Virginia State Board of Education v. Barnette, the Supreme court reversed itself and wrote "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." To underscore its decision, the Supreme Court announced it on Flag Day.^[116][117]

Communism and totalitarianism[link]