Understanding the ACLU

October 6, 2007

The following op-ed, appearing in today’s edition of the North County Times, describes the balancing act the ACLU engages in when conflicting constitutional principles come into play. Examples focus on our privacy case in Vista and on competing cases at Poway High School to protect gay and lesbian students from harassment–in one, two students were continually and viciously harassed with no intervention by the school, and in the other, a student was disciplined for wearing a t-shirt with an anti-gay theme.

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Understanding the ACLU: Briefs filed in two recent North County cases defy organization’s stereotype

By: KEVIN M. KEENAN – Commentary
October 6, 2007

The ACLU claims it protects the Bill of Rights for everybody. But its detractors contend the ACLU is out to make money, favors some groups over others, and, worse, is pro-criminal, anti-Christian, anti-American, and, my favorite, communist.

It is easy to dismiss the more extreme criticisms. The ACLU represents all its clients free of charge and uses attorney fees to support its small legal staff (in San Diego, just one attorney). The ACLU has sued or filed legal briefs on behalf of the religious freedom of countless Christians, as well as conservatives Oliver North and Rush Limbaugh. The ACLU has advocated shoulder to shoulder not just with the Jena 6, but also such “communists” as the National Rifle Association and the U.S. Chamber of Commerce.

Recently, the ACLU filed an amicus brief in support of Republican U.S. Sen. Larry Craig’s attempt to have his guilty plea withdrawn. The ACLU argued that the police did not find that Craig intended to have public sex and the bathroom sting violated his right to speak to another person about sex —- a free speech right whether one is in a bar or a bathroom. If the police wanted to prevent public sex, they could have posted a sign and had a uniformed officer occasionally patrol the bathroom.

But even reasonable people are sometimes confused by the ACLU. It is an organization whose positions require you to scratch below the surface. Ironically, it is the ACLU cases and positions that at first glance seem contradictory that best explain the organization and its importance. Here are two recent, local examples.

Within a six-month period, the local ACLU filed friend-of-the-court briefs in two cases relating to how to protect gay and lesbian students from harassment at Poway High School. In one, we supported two LGBT students who were viciously harassed, sought help from school officials, but were rebuffed and left to fend for themselves. We argued that the school ignored ample and easily available material showing schools how to prevent harassment and support gay students, as well as evidence proving these methods were effective.

In the other case, the ACLU supported a student —- or rather the student’s free speech rights —- who wore an anti-gay T-shirt on a day devoted to LGBT tolerance. The ACLU argued that the T-shirt and situation did not amount to harassment. The shirt’s message was offensive, but it was not targeted at an individual or otherwise harmful enough to merit school censorship.

In other words, as an organization who views its true client in every case as the Constitution and Bill of Rights, the ACLU viewed one case as a matter of equal protection of the law (14th Amendment) for gay students, and the other as balancing equal protection with free speech (First Amendment).

Another head-scratcher for some has been our case seeking to stop Vista from disclosing the names, addresses and phone numbers of people forced to register with the city in order to hire day laborers. All our plaintiffs are private individuals, not business owners. We also did not dispute the city’s ability to disclose enforcement-related information, such as notice of citations, for which there is a legitimate public interest.

Our news media association allies were surprised, no doubt in part because we had, weeks earlier, toiled so hard alongside them to pass a law in Sacramento seeking to restore public access to police discipline records. Understandably, the news media’s first and only consideration is being able to get information. When the government is keeping that information, the ACLU agrees with the media associations 99 percent of the time.

But the ACLU also considers and protects people’s right to privacy. Disclosing private, personal information —- especially in a new identity-theft world —- of people forced to register to do something they have the right to do does not contribute to the monitoring of government or other public interests that motivate our important public disclosure laws.

The ACLU is the only organization that both defends people it disagrees with and defends all the rights embodied in the Constitution. Those qualities make the ACLU’s work sometimes more difficult to understand, but uniquely valuable to the preservation of democratic freedom in this great country.

Kevin M. Keenan is executive director of the American Civil Liberties Union of San Diego and Imperial Counties.

Link to North County Times Op-Ed