TECHNOS

February 9, 2012

TECHNOS QUARTERLY Winter 1998 Vol. 7 No. 4

Interview with Nadine Strossen

By Mardell Raney

In 1991, Nadine Strossen became the first woman to be named President of the American Civil Liberties Union, the nation's largest and oldest civil liberties organization. She is also Professor of Law at New York Law School and author of a monthly column for the e-zine Intellectual Capital. Strossen writes, lectures, and comments in the media extensively about constitutional law, civil liberties, and international human rights. Her book, Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights, was named by the New York Times a “notable book” of 1995. She was featured in the November 1998 issue of Vanity Fair as one of the 200 most influential women in the U.S.

Yours is the classic definition of civil rights, a “neutral position” that insists on defending the rights of all people, regardless of politics. Doesn't that sometimes make things difficult in terms of your political or public support?

It doesn't bother me personally, because the ACLU never supports the agenda of the particular organization which happens to be the victim of a civil liberties violation. We always defend the underlying principle that regardless of the idea or the agenda, those who are expressing it have the same right as every other person in this country to freedom of expression, freedom of association, and other fundamental civil liberties. So, for example, in what is probably the most notorious case the ACLU ever had, the Skokie case in Illinois in the late 1970s, people ask me, especially when they know that my father is a Holocaust survivor, “Wasn't it hard for you to stand up for that position and to defend the Nazis?” My answer is no, because I was never defending the Nazis. I was defending freedom of speech. My clients and the ACLU's clients were all the people in this country who are necessarily going to benefit from a robust concept of free speech, and who will suffer if we have an eviscerated concept of free speech that allows the government to pick and choose which ideas are acceptable and which are not. That group includes as many anti-Nazis as Nazis; in fact, I suspect many more, thank goodness.

Is it difficult to take unpopular stands on things that are controversial?

It's a challenge organizationally, which is why I think that the ACLU is always going to have a relatively small number of members. Many people are shocked to learn that our membership is about 300,000, because they have this sense of a much larger organization. Those numbers are dwarfed by the numbers of the members of the Christian Coalition or the National Rifle Association. But as relatively small as we are, we have a huge number of clients, because there are so many people who, if their own rights are violated, would never hesitate to pick up the phone and call us. They just don't like the fact that we also support other people's rights, which is why they won't join us.

Most people who are interested in public issues tend to have a partisan or ideological agenda; therefore we are an equal opportunity offender given that we are politically neutral and nonpartisan. We just call the shots as we see them in terms of underlying civil liberties principles. About 50 percent of the time we're going to offend liberals and 50 percent of the time we're going to offend conservatives. Those who are predisposed to hate the ACLU—of whom there are quite a few, as I discovered, thanks to the Internet!—will remember the cases that they dislike. But I have a good sense of humor, which is necessary. No matter who it is or what the agenda, I can cite important cases where we have come to the defense of civil liberties that were to the advantage of the causes that they hold dear.

An important education case was the 1996 ACLU victory in Bradford v. Maryland State Board of Education, which enforced the constitutional rights of Baltimore's poorest children. Have cases such as this led to further education policy changes?

For many years we have made it one of our priorities at the national level to use state constitutions (the U.S. Constitution is not available, thanks to some, I think, erroneous decisions by the United States Supreme Court) to challenge funding systems for public schools which discriminate on the basis of the property wealth within particular school districts. It's the worst of both worlds, because people who live in property-poor districts are actually taxed at a higher rate and still the amount of funding available for their children's schools is less than in the property-rich districts where they are paying at a lower rate. After we lost five to four in the United States Supreme Court (four Justices agreed with us that these school financing plans violate the U.S. Constitution's Equal Protection Clause), we did what was then quite innovative, which was to look to state courts and state constitutions to provide even stronger protection for what we see as very important equality of opportunity rights. Thanks to our nationwide network of affiliates, the national office was able to coordinate with particular affiliates to hand-pick jurisdictions with favorable state constitutional provisions, where state court judges were favorably disposed, and where strong factual cases could be made about the funding disparities and their adverse impact on educational opportunities. This project has been going on for about 15 years now, and we've been extremely successful in the courts. But, as with all such victories in the public education arena, starting with Brown v. Board of Education, it's one thing to win in the courts and another to have the legal victory translated into practical policy changes and reforms. In some states there have been significant reforms, but in others it's a constant struggle to enforce the legal victory.

Why do you think the Constitution and the Bill of Rights aren't more widely and rigorously taught in our schools nor understood by the public until you get to, for instance, your law class?

It is demonstrably true that the average adult member of the public literally does not know what the Bill of Rights is. That has been shown in many public opinion surveys. One I'm fond of quoting, since I'm a lawyer and a member of the American Bar Association, was done in 1991, the 200th anniversary of the Bill of Rights. On December 15, the exact anniversary, the ABA released the results of a survey which asked, “What is the Bill of Rights?” Fewer than one-third of all adult Americans answered correctly. When they were told what the Bill of Rights is, more than 50 percent immediately said, “Let's get rid of that.” So, unfortunately, the lack of understanding goes way beyond school. Part of the reason that I can take with such good humor the vilification and misunderstanding of the ACLU is because we have the honor of being the prime defender of the Bill of Rights, which is itself vilified and misunderstood in our country.

This problem does go back to our basic educational system, as you note. Our political system and Constitution are founded on two fundamental principles. One is the principle of democracy with a small “d,” that the majority rules. That's something every school kid learns from the beginning with student council elections and the like. Less well known is the countervailing principle of individual liberty. Our framers deliberately did not create a pure democracy. They recognized the danger of, to use James Madison's phrase, “a tyranny of the majority” and therefore created a government that could not usurp certain fundamental rights of individuals—no matter how strong the majority support for those measures. That basic fact about our Constitution is not learned by too many citizens. Therefore I'm constantly asked such questions as, “But doesn't the majority of town residents have the right to decide that they want to have a cross in the middle of their city hall?” That question reflects the notion that most decisions of public policy are made by the majority. But there is a big difference between most and all.

What has the ACLU done to educate citizens in this regard?

The ACLU has made it a real priority to seek funding and other kinds of support for education, and we've made enormous strides. We received a very generous planning grant from the Ford Foundation a few years ago to put together a top-notch group of education experts, reformers, and people affiliated with Scholastic, people in the schools—a wide-ranging group—to develop a proposal for a Bill of Rights curriculum that would be taught starting in grade school and would include training materials for teachers as well as students. It aims to teach the Bill of Rights not just passively, as in the civics class that I had in school, but also actively, as a vehicle to empower and inform students about their own rights and how to stand up for them, for example. The ACLU's Bill of Rights Education Program is still in development. We are currently exploring potential partnerships with education-based organizations.

How and where do we begin to develop an enlightened citizenry when so few of our citizens even bother to vote?

It's very frustrating and all interconnected. People don't vote because they're not informed about or interested in the issues. If you're not interested you're not going to follow the news, but how could you possibly develop an interest if you're not paying attention to it. I saw a distressing annual survey that's been done by a university in California for the last 30 years, where they compile a comprehensive nationwide database of all incoming college freshmen. One question that has been asked for 30 years is, “Do you think it is important to be aware of current events?” The survey results reported in December or January for the 1997 entering freshman class showed that only a percentage in the low 20s thought that it was important to be aware of public affairs. A similar percentage responded affirmatively to the question, “Do you ever discuss current events with your friends?” These were the lowest percentages that had been recorded since this survey began. Last week in my introductory lecture to my constitution law class, I began to say, as I always do, that whatever is in the newspaper headlines or the top of the news on TV is going to be a subject of constitutional law, that the cases that we study are the headline-making ones. Then I realized, these kids probably don't follow the news if the surveys are right. So I asked, “How many of you regularly keep up with the news?” I deliberately didn't say “read” because I know most of them probably are using TV. Less than 20 percent of the class responded. To solve this problem, you have to develop a lifelong habit of keeping up with the news. The teaching of young people has to start early and in a way that is interesting and relevant.

You've spoken frequently about issues of morality, integrity, and principles. But if morality and ethics are truly important and legitimate, why is there so much confusion about what can and cannot be taught in schools?

We certainly can and should teach about morals and ethics. Indeed, in law school we have a mandate to do that. In order for any law school to be accredited by the American Bar Association it has to teach professional responsibility, which is essentially ethics. I feel a real professional responsibility to get into issues of right and wrong. In my own class, we discuss not only what the constitutional law is but what it should be, which I think is very important both because of First Amendment kinds of concerns about freedom of thought and conscience, and because I consider it to be effective pedagogy as an educator. The most effective lesson is the one that students learn by being stimulated to think and to question for themselves.

Unfortunately, a lot of the prevailing confusion and misunderstanding in this area is caused by so-called “religious right” organizations, which have exaggerated what the Supreme Court has held cannot be done in the public schools in terms of religion. It's ironic because they're the ones who supposedly want more religion in the public schools; and yet they have so exaggerated the scope of the Supreme Court holdings that many school officials believe that they have to decrease the religious role. When I debated Pat Robertson, he literally said that the Supreme Court has engaged in a “religious cleansing” of the public schools. We've all heard that the Court has banned prayer and removed religion from the schools—total distortions. It's even more of a distortion and exaggeration to say that the Court has prohibited discussions or teaching about moral issues or morality in the schools. Nothing could be further from the truth. In the decisions in question the Court simply held that public schools—and I want to emphasize that, because private schools are free to indoctrinate whatever orthodoxy they want; that is their religious freedom right—since they are run by the government, public schools may not indoctrinate, preach, insist upon, or endorse a particular orthodoxy. The government is required to be neutral when it comes to religion. But the Supreme Court took pains in the very decisions where it first enforced these principles—which were cases involving government—written and teacher-led prayers and Bible verses in the classroom—to stress, “But of course we're not saying that you can't teach about religion and the important role that religion has played throughout history and in art and music.”

A couple of years ago, Bill Clinton gave an excellent speech on this topic that was very effective in deflecting and defusing the then-growing movement to amend the Constitution to allow government-sponsored prayer in the public schools. The ACLU deserves a lot of credit because this speech was based on guidelines that we had put together with a coalition of other civil liberties groups and a broad spectrum of religious denominations and groups including the Christian Legal Society and National Association of Evangelicals. We said, here is what the law is and here is what the Supreme Court has said you can and cannot do. Clinton issued these guidelines under the aegis of the Department of Education to the fifteen thousand public school districts around the country. Since then, there's been a lot more willingness for public schools to teach about religion and issues of morality without fear that they are violating the Constitution.

What do you think about the current fixation on public opinion polls as political determinants? What does this say about expediency and popularity versus genuine values, such as principles, courage, and character?

I see leadership and character as being synonymous. That's at the very core of the concept of civil liberties and human rights because all these notions share a respect for the individual. But it has to start with the individual having self-respect. That means a sense of integrity, which is an interesting word. Etymologically, it probably has something to do with wholeness and consistency. You have a sense of yourself that is not going to be swayed or influenced by the fact that you are espousing an unpopular position. The absence of this quality drives me crazy when it comes to the political system, where I see so few genuine leaders. Clinton is to me such a tragic figure because he is so gifted, and unfortunately I have to lump Hillary in there too. They both have so many talents and such brilliance and probably had some really commendable values. I have to say “probably” now because there is so much evidence that there's no value there other than “let's get elected” and “let's stay in office at all costs.” It is as if there is a big moral vacuum there where one becomes president only for the sake of remaining president and then remaining a president with high public opinion polls—not to advance a particular vision of justice or the public interest or even of your own sense of what's right and wrong.

I recently did an essay on Profiles in Courage, which I had read as a kid. President Kennedy was a great inspiration to me, and he remains so. Even with all of his personal foibles that have come to light, I still see a core of integrity and leadership there. When I recently went back and reread this book for the first time in decades, I was amazed that it stood the test of time so well. I found it so inspirational that we have had throughout our history and across the political spectrum people who have lived up to that concept of leadership and who earned the respect of their fellow citizens—even those who strongly disagreed with them. So I take polls with a grain of salt. Even if I thought they were a thousand percent accurate, I still would consider them completely irrelevant in determining what is right or wrong, moral or immoral, just or unjust. But aside from that, I think they also are just plain inaccurate and misleading when you see how a slight wording change can produce totally different results. Maybe I'm expressing a hope more than anything else, but it's a hope that comes from my gut sense of what animates my fellow citizens across ideological, age, religious, cultural, and all other barriers. I see a huge respect for people who have commitments to values and principles.

What are your thoughts on filtering and blocking Internet access as a way of protecting children? If controls are necessary, what criteria should be used and who should do it?

I think the basic starting point for any question about the Internet, as the Supreme Court has echoed, is that we should use the same approach for the Internet as we do for books and other traditional media. So many people get blinded or anxiety-ridden by this new high-tech form of communication. But the ACLU's position is that the First Amendment's approach worked for the print media back in the 18th century, when the First Amendment was ratified, and it has continued to work for movies, video, telephones, and—with some qualifications that we've opposed but that the Supreme Court has not yet invalidated—broadcast media. That should be our starting point. In Reno v. ACLU, the case that the Supreme Court decided a year ago, which I'm so proud of, the Court agreed unanimously with us. You use the same standards here that you do anywhere else. It ultimately comes down to the fact that in a free society, all mature individuals have to decide for themselves—and for their children—what to look at and what to avoid.

You've expressed some grave concerns about privacy issues, particularly the massive kind of invasion from computerized databases. How serious is this?

Increasingly this is one of those civil liberties issues where there seems to be a tremendous amount of public support and concern, at least on the part of those who are aware of the extent to which information that they think is private is not in fact private. All surveys indicate that huge percentages of the public believe that they should have the right to control information about themselves and who has access to it—and that if they do release that information for one purpose it should not be used for another purpose. They're shocked to learn that those principles are not enforced in any comprehensive privacy-protecting legal statute in this country, nor in the Constitution. The Constitution doesn't even apply to the private sector entities that are gathering this information for commercial and marketing purposes. From everything I have seen, there is no information that can't be obtained about anybody for a price unless that person is using only cash, doesn't disclose a social security number, and never engages in catalog, telephone, or online shopping. It is frighteningly easy to put together an intimate detailed profile of a person—from medical history to reading habits to travel patterns. There are very few legal protections against this.

The ACLU launched a campaign a few years ago called “Take Back Your Data”—“T-BYRD” is the acronym—that reflects the fact that our data is already out there in circulation. But it's not too late to impose controls on who has access to that data and how it can be used, and it's certainly not too late to impose prospective limitations on the accessibility of the most personal data. The ACLU played a very positive role here, because we brought public and political attention to something that had just sailed through Congress a couple of years ago as part of a technical amendment to another law. It gave the power to the federal government to essentially create cradle-to-grave medical profiles: a centralized computerized database of all of our medical history that would be available to a whole range of government officials. It took a long time to get anybody to pay attention to this, but we finally succeeded, both with the public and with legislators on both sides of the aisle in Congress. So T-BYRD is a public education campaign to make people understand the facts and the technological reality that their data is already out there, to make them aware of the legal reality that we don't have adequate legal protection now, and finally to urge them toward activism. We give people not only the information, but also a means to easily communicate their concerns to their own members of Congress by sending an email or fax directly from our online site.

You've said that public education has to be the ACLU's most important priority. Why this commitment?

Public education is the foundation, the essential bedrock for civil liberties. This isn't an original thought of mine. It's been said over and over again in statements that go back to James Madison. In an 1822 letter he said, “A popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps both. Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.” In our own century, most memorable to me is a quote by Judge Learned Hand, in a famous 1944 address called “The Spirit of Liberty”: “Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. . . .”

That is literally true. I can explain the reason as a straightforward civics lesson, reflecting constitutional law principles. First, our elected branches of government will simply do what the mass of the public wants, especially in this era of sound-bite, follow-the-poll, weathervane politics. So if the public says we want a crucifix in the middle of city hall and censorship of our computers in the library, we should have it. Then of course you're going to get politicians who follow the majority and purport to vote away individual rights. In theory, judges should uphold the Constitution and declare unconstitutional laws that violate the Bill of Rights. But sometimes judges themselves are driven by politics and reflect majority will, as we've seen more and more frequently. How many presidential elections have we had where the views of judges on constitutional issues become a major campaign issue? At the state level, judges are directly elected, so they're already being subjected to this kind of sound-bite buffeting. “Of course I'm going to sacrifice the constitutional rights of this individual criminal defendant because I want to get reelected.” Then you have presidents making a commitment to appoint judges who are going to take a very narrow view of constitutional rights. So the whole thing can go down the tubes unless ultimately you have a public that elects officials who will appoint judges who respect the Constitution and civil liberties.

Many of us have a serious fear that we will lose our civil liberties. What can we as ordinary individuals do to guard against this?

The person who cares enough to ask that question is by definition extraordinary. Somebody who cares enough even to go to the polls once every couple of years is extraordinary. So somebody who wants to be involved beyond that and have a more ongoing and direct impact is not an ordinary person. But there's a positive spin. The fact that so many people in this country are politically apathetic means that every individual who is not apathetic can have an amazing impact. Very small numbers of people can have incredible impact. For example, both our supporters and even more so our detractors constantly talk about how influential the ACLU is. Robert Bork's latest book described the ACLU—an organization of only 300,000 members—as essentially being responsible for all social and legal policy in recent history! But actually I've heard statistics from our grassroots organizers and lobbyists, both at the national level and around the country, that are absolutely mind-boggling. Against the background of general apathy, it takes such a tiny number of activists to make a difference.

Let me cite one example. Our Field Organizer in our Washington, D.C., legislative office met with top staff people of Senator Carol Moseley-Braun and asked how many communications their office would have to receive from constituents on a particular issue for them to focus on that issue—not necessarily to do what those people wanted but just to focus on that issue, to push it to the top of their agenda. We're talking about Illinois, a large state. How many communications would it take to have this kind of impact? Only ten! It's so shockingly easy.

That's a very empowering concept.

It is. So is the notion of technology, that you can go online. We also explain to people that a hierarchy of weight is given to different forms of communication, that an email is taken less seriously than a fax. So we make it possible for you to fax directly from your computer with a click of a button, and you can personalize the letter or not. I do that routinely. It only takes a couple of minutes, but I always get responses from my United States Senators. They're certainly not responding to me as president of the ACLU because I just send it on non-letterhead as a constituent. So the good news is that individuals can make a tremendous difference.

On your recent PBS Firing Line debate called “The ACLU Is Full of Baloney,” one discussion concerned sex education, which many people consider pornography. Given the dangers that young people face who lack sex education—and the opposition in some areas—what's going to happen on this issue?

I hope that true concern for children's well-being will prevail. It's indisputable that young people are engaging in sexual relations and therefore one wants to give them as much information as possible to minimize the health risks and the emotional and psychological risks. To tell them to just say no to sex is fine, but I think that common sense is necessary here. That means a recognition that kids are likely to be sexually active and we have to prepare them; yet they are often uncomfortable speaking to their parents about sex or vice versa. So if they are going to get that information, the school is a very good outlet and actually the Internet is a good outlet as well. A number of our clients in Reno v. ACLU were Web sites that put out safer sex information and other sexually oriented information for kids, recognizing that people say, “Oh, they should get that at home or in the church.” But too often that doesn't happen.

How did your interest in law come about? Were you always interested in civil rights and human rights issues?

My interest in law started the first minute I had exposure to law and legal issues as a 15-year-old high school student. I was a member of our debate team one year when our debate topic was a legal one. I fell in love with law then. We did research to prepare for our debate tournaments at the University of Minnesota's law library, and I was absolutely fascinated. But this was 1965 and it didn't occur to me that I could be a lawyer. I didn't know any lawyers and I'd certainly never heard of any female lawyers. So when I meet or read about women who were never deterred by the fact that they were the first or only one to enter a particular field, I am in awe of them. I didn't have that kind of imagination. As the only female member of our debate team, I remember saying to my male partners, “Law is so fascinating, you should go to law school. You should become lawyers.” It never occurred to me that that was a possibility for me.

What convinced you that law could be a career for you too?

As a transplanted New Yorker in Minnesota, my mother subscribed to the Sunday New York Times. In the mid-to-late 1960s, I remember reading that Harvard Law School had founded the first student legal aid bureau and thinking, “What a great idea, you can learn to be a lawyer and provide legal services to poor people.” And again, I said to my male debate partners, “You really should go to Harvard Law School and work for the legal aid bureau.” Again it never dawned on me that I could do that. But in fairness, Harvard had started admitting women only a short time before that. A few years later I went off to Harvard College, met women lawyers, and became very involved in the movement for reproductive freedom which was brewing then. The Supreme Court had not yet upheld it as a constitutional right and a Massachusetts doctor was being criminally prosecuted for having performed an abortion for therapeutic reasons. Suddenly I realized I could be a lawyer. I went on to Harvard Law School and worked for the legal aid bureau. As far back as I can remember, I've always had an innate sense of justice and injustice, fairness and unfairness, and it was just a matter of learning what tools were available educationally and organizationally to pursue those ideals.

What aspect of your career do you find most rewarding?

It gives me an opportunity to pursue and in many cases to implement the values that I hold most dear and most deep. The fact that I really can pursue my sense of justice, and try to correct and prevent injustices. I can't imagine any greater joy in life.

Who has had the greatest influence in your life?

I couldn't single out one individual, but I certainly give enormous credit to a couple of teachers I had early on—along with my parents. Aside from my parents, everybody else in my pantheon would be teachers. It's probably not a coincidence that I've become a teacher myself, given the important roles they played in my life.

I have to give enormous credit to my parents because they both were really stymied in their educational and career opportunities, and therefore were committed to opening up mine. From the time I was a small child, I have such strong memories of both of them stressing that education was a priority and that they were saving for college educations for me and my brother. I'll never forget my mother saying, “You know, I don't care if we eat nothing but potatoes, you are going to college.” My father always wanted to be a doctor, but he was a “half-Jew” in Hitler's Germany and was pulled out of medical school, then put into a concentration camp. Fortunately, he survived and came to this country, but he had to earn a living and also send money back to his surviving family members in Germany. So he focused on making money to support the family, but his heart was never in it. That's why the most satisfying thing about my work is not only that it supports me and gives me economic independence, which is very important, but far more important is that I love it so much. It's so fulfilling to me as a person.

Where do you think the ACLU is going from here?

I think it's going to be more of the same, because our challenges are going to be more of the same. Roger Baldwin, our principal founder, said, “No fight for civil liberties ever stays won.” We also use as a motto Thomas Jefferson's similar statement, “Eternal vigilance is the price of liberty.” It seems that the very same issues are constantly being recycled—sometimes in a slightly different factual context. As I said, all of the questions about censoring the Internet are precisely the same questions we've had to face with censoring movies, TV, and print media. Less than one decade after our complete victory sweep in the courts in the Skokie case, the same issue of censoring hate and racist speech resurfaced in the form of hate speech codes on college campuses. It's not surprising, because we're dealing with an eternal struggle between freedom versus order, majority power versus individual rights, liberty versus security. These are enduring, fundamental questions, and we'll have to continue playing the same role that we've played in the past, harnessing new developments such as the Internet to make ourselves more effective and, I hope, to improve the educational aspect of our endeavors.

Contact Strossen at nadinestrossen@intellectualcapital. com.

About the ACLU

The ACLU (www.aclu.org) is a nationwide, nonpartisan organization dedicated to defending and preserving the Bill of Rights for all individuals through litigation, legislation, and public education. Headquartered in New York City, the ACLU has more than 300 chapters nationwide and staffed offices in every state in the union.

Founded in 1920 by Roger Baldwin, Crystal Eastman, Albert DeSilver, Jane Addams, Felix Frankfurter, Helen Keller, and Arthur Garfield Hayes, the ACLU is governed by a National Board of Directors. Eighty percent of its budget directly supports litigation, legislation, and public education programs. With fund-raising costs of 12% and management/administration costs of only 8%, the ACLU ranks among the nation's best-run charitable organizations.