Sunday, August 14, 2011

Reading the ACLU Policy Guide (Pt. 1)

For international readers, the American Civil Liberties Union (ACLU) is a legal activist group which promotes individual civil rights, especially Constitutional rights. It's a polarizing organization; people tend to be ardent supporters or demonize it. As a member, I am closer to the first category, though I strongly disagree on some issues.

The official ACLU website is pretty good for finding articles on current events, but weak on detailed policy explanations. It turns out there is — or was — a Policy Guide of the American Civil Liberties Union which was published in loose-leaf format in 1966 with replacement pages sent out like software patches until 1995. At least, the copy I found locally started out as the full 1986 version and was dutifully 'patched' by librarians until 1995. I haven't been able to locate any references to later editions.

[Note: I have since contacted ACLU Nebraska and confirmed the Policy Guide stopped being updated in 1995. I was directed to the national and local websites for current policies, which would be fine if the information there were more detailed.]

In this series of posts, I will summarize and lightly comment on ACLU policies from the mid '90s. Keep in mind that some positions are bound to be outdated or differently presented today. Policy names and the names of policy sections are verbatim.

American Civil Liberties Union (1986-1995). Policy guide of the american civil liberties union. New York, New York: ACLU.

Policy Sections

Censorship [1-11]
The Mass Media [12-34a]
Free Speech for Government Officials and Personnel [35-40a]
Assembly and Public Protest [41-47]
Labor-Business [48-59a]

Academic Freedom [60-79]
Separation of Church and State [80-102]
Loyalty and Security [103-119]
Military Power [120-122]
[series on indefinite hold]


Policy 1 — Prior Restraint and Official Censorship

"Believing that pre-censorship is the most dangerous of all curtailments of the freedom of expression guaranteed by the First Amendment, the ACLU opposes any governmental restriction or punishment, prior to publication or exhibition, of any form of expression on grounds of obscenity."

Examples given include government censorship of films, books, magazines, and plays. Apparently, the "pre" in "pre-censorship" indicates any kind of system in which publication is forbidden by default unless the government approves. I can see how that would be even more restrictive than the government censoring something after the fact. So far as I know, this kind of thing isn't a problem nowdays.

Policy 2 — Mail Censorship

The ACLU opposes any censorship of private communication alleged to be "obscene or seditious," whether by the postal service or customs agents. Racial and religious hate speech are pointed out as examples of protected material.

This section talks about a couple of laws which allowed citizens to opt-out of "sexually oriented" mail, kind of like the Do Not Call registry today. Any such mail had to be labeled as such and the postal service would be responsible for not delivering it. The ACLU opposed these laws on the ground that they had the effect (intended or not) of restricting the freedoms of adults. People living in small towns, for example, might feel that they couldn't been seen accepting mail with the obscenity mark on it. "The Union holds that censorship instituted to protect children inevitably affects the freedom of adults to read and view what they please." It is a matter of parental rather than government responsibility to control what their children see or read.

Policy 3 — Private Pressure Groups

This one is a little strange. First, the rights to organize and protest for a cause are recognized, but then the policy says this "does not mean that the ACLU should refrain from objecting when the likely consequences of private pressure group activities would be inimical to civil liberties."

The charitable reading is that this policy isn't like the first two; it's not saying the government should be able to suppress speech when that speech is threatening civil liberties. Instead, this policy merely makes it clear that the ACLU recognizes the legal right to such speech while expressing a contrary opinion themselves. This is consistent with the "more speech, not less" approach to hate speech that the ACLU takes these days.

Policy 4 — Censorship of Obscenity, Pornography and Indecency

"The ACLU opposes any restraint on the right to create, publish or distribute materials to adults, or the right of adults to choose the materials they read or view, on the basis of obscenity, pornography or indecency."

This isn't from some particular support of pornography, but because the ACLU believes the general freedom of speech and the right to read are threatened by such exceptions. And, besides, there is no agreed-upon definition of obscenity.

The ACLU also opposes laws against distributing such material to minors, again citing the reasons that this inevitably turns out to restrict distribution to adults and that it's the responsibility of parents to control what their own children are exposed to.

Realizing we're not likely to see an end to obscenity laws soon, there is a list of seven guidelines intended to mitigate the harm to civil liberties from such laws. For example, definitions must be drawn narrowly, trials must be fair and without extra-judicial harassment, and — more controversially — those involved should not be "obligated to risk punishment by misjudging the age of a minor. Such persons should not be required to keep records of evidence submitted by minors; and should be entitled to rely reasonably on a minor's statement of age." I think the idea here is that people should not be subjected to special jeopardy who are making a good faith effort to follow the law. It would be similar to bars not being liable for selling alcohol to minors if the minor presented a genuine-looking fake ID. I don't know why a record-keeping requirement of photo IDs would be opposed, since that is an effective way to encourage due diligence.

There's a bit about being opposed to zoning laws against the sale of books, movies, etc. on account of content.

Crimes which are sometimes claimed to be caused or increased by pornography such as coerced sex and kidnapping can be "remedied" by better enforcement and strengthening of these laws. The ACLU supports laws protecting minors from "substantial physical harm" or "substantial and continuing emotional or psychological harm." Basically, they're against any harm coming to children because of involvement in the production of obscene material (or anytime else), and believe laws against this rather than laws against obscene material itself are the correct response. I suppose it would be like punishing people for murder, but not for possessing recordings of murders. A highly controversial position nonetheless.

Policy 5 — Comic Books

Comic books must have been the video games of the time, in terms of people blaming the medium for youth crime. This policy points out the lack of good evidence for a causal link between comics and crime, and condemns both government and industry censorship.

Policy 6 — Libel and Invasions of Privacy through Speech

The ACLU opposes any libel laws for speech about public officials relating to their public position, or about anyone relating to public concerns. They do allow for compensatory damages in other cases, but claim "[t]he award of punitive damages is inconsistent with First Amendment principles since they are intended not to compensate the plaintiff for any loss he or she has suffered, but to punish the defendant." In addition, the ACLU believes civil — as opposed to criminal — action is adequate for libel; they point out that a "disproportionate number of criminal libel prosecutions" involve persons involved in public office which is especially damaging to free speech.

Group libel laws, such as laws against defaming racial or religious groups, are opposed completely. "While the statements involved may well be offensive and hateful, still it is better that they be openly expressed and, therefore, open to challenge and debate."

And "truthful, embarrassing, private facts" don't justify legal action.

Policy 7 — Access to Government Information

While some government information "directly relevant to national security," personnel files, medical information, and closed door consideration of unpopular proposals are legitimately withheld from the public, the ACLU here complains that the government also has a habit of keeping information secret that is unclassified and lacks any other compelling reason for secrecy.

"The achievement of government of and by the people requires that the people know what the government is doing." For example, the people must be told immediately about military action both direct and by sponsorship, armed forces presence in foreign countries, economic assistance to foreign countries or insurgencies, and any diplomatic commitments involving these things. However, not about details of operations and weaponry, the details of intelligence gathering "so long as the types of techniques employed are made public," or military contingency plans (like the plan to quell Canada if it comes to that).

The ACLU supports an independent government agency whose job it is to responsibly review materials for declassification, over any objections from the group that originally classified it.

Policy 8 — Media Coverage of Military Hostilities

For democratic reasons, the ACLU believes members of the press should have unimpeded access to active combat zones and the military personnel therein, and to their own communication equipment to report what's going on to the public. I suspect this policy may be somewhat amended today with the real-time nature of global reporting which easily intrudes into the kind of details excepted in the previous policy.

Policy 9 — Census Questions

This policy is largely about the appropriateness and confidentiality of race/ethnicity questions on the census. The ACLU sees a conflict between the right to privacy and other rights served by finding out information about race and ethnicity. Frankly, I don't understand why the government needs to know racial statistics to protect any related rights.

Name and address may be mandated. Race/ethnicity as well, so long as this information is stored separately from name and address. All other questions should be voluntary, except that religious affiliation questions should never be asked even on a voluntary basis.

Policy 10 — Copyrights

Amusingly, the main concern here is about government employees copyrighting documents in an attempt to prevent dissemination. I'd love to hear the story behind that one.

Policy 11 — Anonymity and Disclosure

Anonymously published propaganda ought to be free from demands to reveal the source. A justifiable exception is when it concerns candidates for public office, since it's too easy for one campaign to crank out last-minute anonymous lies to sway an election. This doesn't allow time for the public to investigate the merit of such claims.

The ACLU supports (or rather, doesn't oppose) laws to reveal who is paying lobbyists. The justification again concerns the public's opportunity to evaluate information.

Political groups and private organizations may not be legally compelled to provide membership lists, as this detracts from the freedom of association.


  1. Prior restraint is a sneaky thing, and I don't think it's as noncontroversial as you think. I consider the Bush-era restriction on press photography of caskets returning from Afghanistan and Iraq to be a form of prior restraint, especially chilling since it was meant to influence public opinion on two wars.

  2. Now that you mention it, photography of government buildings, police, etc. is often restricted on a "no, unless we say so" basis. If not by legal restrictions, at least by bullying.