Human Rights Organizations in Civil Society

by Philippa Strum, Professor of Political Science, City University of New York, Fellow, The Woodrow Wilson Center for International Research

In 1977, a self-styled American Nazi "party," consisting of about two dozen people in the midwestern city of Chicago, decided to demonstrate in the suburb of Skokie. Close to a third of Skokie's 70,000 residents were Jewish, and approximately 5,000 of them were survivors of Hitler's death camps or members of their families. The Catholic mayor of Skokie, impelled by the horror of the Holocaust survivors at the prospect of seeing Nazi uniforms complete with boots and swastikas in their city, decided that the Nazis would not be welcome in Skokie and quickly had the local government enact ordinances designed to keep them out.

When the Nazi group turned to the American Civil Liberties Union (ACLU) for legal representation with the claim that the statutes violated its members' right to free speech, the ACLU took the case to court. The ACLU's Executive Director was a Jewish World War II refugee from Germany. The local ACLU lawyer who handled the case was Jewish. But the ACLU found the case to be an easy one, in terms of American law and the ACLU's principles: the First Amendment to the Constitution guarantees freedom of speech, and the Supreme Court had long since interpreted free speech to include the right to demonstrate peacefully. The ACLU won the case. 1 

Interestingly, the outrage of the citizens of Skokie at the Nazi party, coupled with the widespread national support expressed for their position, frightened the Nazis into foregoing the proposed demonstration. Instead, they held their demonstration in Chicago, where they had to be protected by the police from the anger of about two thousand counter-demonstrators.

The case was "easy" for the ACLU's staff and its layperson directors but not for some ACLU members. Approximately 30,000 people, or 15% of the ACLU's members, resigned from the organization. Chicago is in the state of Illinois, and the American Civil Liberties Union of Illinois is the local state-based affiliate of the national organization. The affiliate lost almost a third of its annual income, which meant, among other things, that 5 of its 13-person staff lost their jobs. 2 

Twenty years later, in May 1997, the United States Supreme Court decided the case of Reno v. ACLU. The ACLU had sued the American government, challenging the 1996 federal Communications Decency Act that banned from the Internet any "indecent" communication that could be seen by children. The effect of the Act was to prohibit adults as well as children from posting such material as information on contraception or medical data on sexually transmitted diseases. The ACLU won before the United States Supreme Court. 3  The organization was criticized by right-wingers for attacking "family values" and the shaky morality of Internet-surfing children. But the case was just as "easy," in terms of ACLU principles, as Skokie had been, and few if any members resigned over it.

To the ACLU, the cases were similar--except that the second case, which involved explaining the informational function of the Internet to judges unfamiliar with new communications technology, required more preparation, more exhibits, and more expense. But both revolved around the core civil liberties principle of free speech, and the ACLU sees its function as defending those principles. 4 

My assignment today was to describe the ACLU, as well as international human rights organizations such as Amnesty International and Human Rights Watch. A detailed examination of a number of organizations is impossible in the time allotted to me, and so, in an attempt to examine one model of a national human rights group, I will concentrate on the ACLU. 5  Its interpretation of human rights principles reflects the particularized American experience 6  but it shares a belief with human rights organizations all over the world that the defense of human rights principles by non-government organizations is a necessity for democracy and for civil society. 7 

The premises underlying what follows are fourfold:

The first, relying on the Jeffersonian interpretation of John Locke, is that governments are the creation of human beings who have inalienable rights. Locke's thesis was of course based on a reaction against the philosophy of divine rights of kings and the idea that government was acting legitimately when it limited rights to those it considered desirable.

The second is that rights cannot be guarded adequately in the absence of the rule of law. That implies a relationship between democracy and an independent judiciary that will defend human rights in the face of the other branches of government or of majorities disinclined to honor the rights of individuals and minorities. In this formulation, democracy is defined not merely as rule by the majority, but, equally importantly, as the formal protection of the rights of individuals.

The third premise is that rights will not be properly safeguarded if the responsibility for doing so is left entirely to the government. This point should be emphasized, as it suggests that human rights organizations may be as important to a democratic polis as is a popularly elected government or the enumeration of rights as part of a nation's basic legal documents.

Fourth, any rights-protective organization appropriate to a country or region, as well as its interpretation of rights, must grow organically out of the history and culture of that country or region. In this sense no national or regional organization can be a model for another. An organization such as the ACLU can provide a thought-provoking example of organizational techniques, methods of public education and mobilization, and so on, but it has been and continues to be successful within the American framework precisely because it has cut its cloth to fit the pattern of the American constitutional system. A subsidiary premise is that an organization must grow with its country or region and that its structure and agenda at any given historical moment will reflect changing phenomena such as technological growth, urbanization and modernization, and demography. Its agenda will be fueled by basic principles but the problems to which those principles will apply will be in fairly constant flux.

A word should be added about world-wide organizations such as the United Nations Commission on Human Rights and Refugees, Amnesty International, and Human Rights Watch (the parent of Helsinki Watch as well as other regional and subject-specific Watches such as the Women's Rights Project). Amnesty initially focused its attention on "prisoners of conscience"--political prisoners--and the generating of citizen pressure from around the world for their release. 8  Like Human Rights Watch, whose name describes its mission of gathering and publicizing information, assuming that publicity may be the only currently feasible cure for human rights violations around the world, it issues periodic reports on specific violations as well as annual accounts of its activities. 9  The U.N. Commission is primarily a fact-finding and reporting agency. The U.N. High Commissioner for Refugees has been successful in raising the world's consciousness about the human rights violations implicit in the situation of refugees, and the impossibility of rectifying that situation without the efforts of the world community. This last point is important because it introduces into discussion the idea that human rights must be enforced as well as articulated, the question of the responsibility of all nations for the minimization of human rights violations, and the possible tension between the concept of human rights and that of sovereignty. Sovereignty is also implicated by the idea that human rights are universal; that is, they transcend political systems and cultures. The universality of human rights has proved problematic to governments around the world. Universality is, however, the organizing principle for all international human rights organizations.

Philosopher Michael Walzer has written that civil society is linked to the liberal spirit of tolerant pluralism. 10  The ACLU safeguards the right to pluralism, whether it is the pluralism inherent in the expression of unpopular ideas or in racial equality or the demands by women, gays, lesbians, and the elderly for meaningful equality. The focus of the ACLU's efforts has been the government: preventing the government from acting in a manner designed to deprive people in the United States--whether citizens, permanent residents, or visitors--of full enjoyment of their human rights as those rights are enunciated in the Constitution and subsequent statutes. 11  One might note that the ACLU's insistence that the Bill of Rights appended to the American Constitution applies to all people subject to action by the American government implies that it too accepts the idea that human rights transcend matters of citizenship.

In fact, it can be argued that the ACLU reflects the Lockean-Jeffersonian philosophy in what might be called its schizophrenic attitude toward government. On the one hand, as Thomas Hobbes insisted, life would be "nasty, brutish and short" if governments did not exist to keep individuals from harming each other. 12  Because government is an entity created by the people, it is something positive--something desirable. On the other hand, the American concept of government is negative. James Madison wrote that "if men were angels, no government would be necessary," 13  and the Constitution reflects the belief that government is necessary because of flaws in human beings. The belief had its genesis in part in Puritan theology, which emphasized the baseness of human nature, and in Thomas Jefferson's incorporation of Lockean thought into his own political theory. Jefferson favored a central government with severely and explicitly limited powers because of his assumption that people are not to be trusted once they acquire power. As Lord Acton said, "Power tends to corrupt and absolute power corrupts absolutely." The American government therefore is based on the decentralization and limiting of power: first between the national government and the states, and then, within the national government, through the division of powers among the presidency, the House of Representatives, the Senate, and the judiciary. Jefferson fought for less federal power and greater local power because the affected public was much better able to keep its ever-watchful eye on the governmental bodies that were geographically closest to it. The Constitution's framers thus viewed government as an evil that was necessary--but still an evil. The corruption worked by power would inevitably cause the government to ignore the limited mandate given to it by the people. The mandate was to perform the few tasks that had to be undertaken formally and communally, not to expand governmental power into areas of personal liberty and autonomy. The government was needed to protect liberties, and yet liberty had to be protected from the government. Americans today remain profoundly suspicious of government, even as they clamor for it to solve social and economic problems. The question for the writers of the Constitution was, how does one watch the watchdog?

The answer, as suggested earlier, was a multiplicity of governments and divided power. It was an insufficient answer, as was evident in the subordination of people of color and of all women, and in the federal attempts to repress dissent that were seen as early as the Alien and Sedition Acts of 1798. 14  There were early rights-specific non-governmental organizations in the United States, most obviously in the groups that emerged on behalf of abolition of slavery and the rights of women. But there was no voluntary association devoted to the protection of all rights.

The ACLU was created in 1920. Its genesis lay in efforts to protect dissenters, and particularly pacifists and other opponents of American involvement in World War I, from government prosecution. The view of the Constitution as the expression of the will of the people, along with the strong independent judiciary proclaimed most dramatically by Chief Justice John Marshall in 1803, 15  led the ACLU to the litigation strategy for which it is best known. But public education was and is an equal goal and technique: mobilization of Americans interested in safeguarding their liberties.The ACLU's agenda gradually came to encompass the entire Bill of Rights: the rights not merely to speak, publish and assemble, but to practice one's religion, to be guaranteed a fair trial, to be free of unwarranted governmental searches and seizures, and to be treated equally by the government. The ACLU took both liberty and equality as its mandate. Today the organization is deeply involved in efforts to achieve racial and gender equality, to keep the state out of religion and religion out of the government, to protect privacy, to safeguard the rights of prisoners and so on.

As was noted earlier, human rights organizations must grow organically out of the societies in which they seek to protect democracy. The ACLU is an American organization and its structure reflects American beliefs and political institutions. But a few details about the organization may be useful in other civil societies.

The ACLU has 250,000 members, who are automatically enrolled in both the national organization and in the "affiliate" in their geographic area. Reflecting the federal structure of the United States, affiliates are primarily statewide organizations, each with its own staff and budget. 16  Together, the ACLU's national headquarters in New York City and its office in Washington, D.C. have a staff of 105. This includes 30 attorneys. The organization takes approximately 6,000 cases each year, including cases handled by the national office and by affiliates in both local and federal courts.

The majority of the cases are the work not of staff but of volunteers. Each ACLU entity has a formal or informal group of volunteer legal advisers who decide which cases to take. Situations involving possible litigation may be brought to the ACLU's attention by the individuals affected or by lawyers, or by the publicity given to new laws antithetical to civil liberties. The ACLU usually contacts attorneys with expertise in the area to be litigated and asks if they will volunteer their services. They receive no remuneration -- unless, of course, the case is one that they win and in which they are awarded legal costs by the courts. That is a very small minority of cases. The ACLU could not exist without the tradition of pro bono lawyers volunteering their time and skills in cases taken "for the public interest." They of course work closely with the legal staff, members of which sometimes argue cases themselves. The staff also submits amicus curiae ("friend of the court") briefs in cases considered to be particularly important to policy in a specific subject area or to the development of constitutional doctrine. The national organization has a reputation as an outstanding litigator before the nation's. It is certainly a frequent litigator there, arguing more cases and submitting more amicus curiae briefs than any party other than the federal government itself.

Funding is always a problem for human rights organizations. The ACLU does not accept government money. Its financial resources come from member contributions and grants from private foundations. In the early 1970s, Ruth Bader Ginsburg, then a law professor and member of the Board of Directors, 17  put together a group of lawyers to work on cases seeking gender equality. What became the Women's Rights Project was funded in large part by the Ford Foundation, which wanted to contribute money specifically for that issue. Recognizing that permitting large donors to specify the civil liberty which they wished to help safeguard was an effective fund-raising technique, the organization gradually created a dozen other projects, such as the Worker Rights Project, the Gay and Lesbian Rights Project, the Prison Project, and the Arts Censorship Project. The projects, consisting primarily of lawyers, report to the ACLU's Legal Director.

Litigation is important but so is lobbying, as it is sometimes easier to keep a law from being enacted, or to work with legislators to make it rights-protective, than it is to litigate a case about it. That is the primary reason for the ACLU's office in Washington. Its success rate depends very much upon the political climate and the political configuration of Congress and the executive branch. During the Reagan era the ACLU was credited with beating back attempts to enact the president's "social agenda": statutes that would have ended busing of schoolchildren for purposes of racial integration, curbed the right to abortion, and allowed public schools to impose religious rituals on students. Success may also depend upon the ACLU's ability to coalesce with other organizations around particular issues, so that the ACLU may make common cause one day with an organization that it soon will be fighting in court on a different matter. The insistently non-partisan organization reports each congressional session's votes on civil liberties matters, sending a "civil liberties report card" to members across the country and, more recently, posting it on the organization's World Wide Web page.

The ACLU, as well as American civil society in general, benefits from the portion of the United States tax code that makes donations to non-profit organizations tax deductible. Private foundations also have tax deductible status, and there are tens of thousands of small family foundations in the United States in addition to those that are larger and better known. As lobbying organizations do not enjoy tax deductible status, the ACLU has two arms: the ACLU itself, which undertakes lobbying and does not have tax deductible status, and the ACLU Foundation, which litigates and educates and to which contributions are tax deductible. In addition, the ACLU and other pro bono groups have lobbied with mixed success for the granting of lawyers' fees by courts hearing civil liberties cases.

In 1987, recognizing that litigation and lobbying have their limits and that, ultimately, civil liberties can be ensured only if the electorate is aware of their necessity, the national organization created a Public Education Department (PED). It has a staff of ten that publishes briefing papers on issues such as racial equality or drug testing of employees or reproductive freedom; a newsletter; press releases; reports such as surveys on popular attitudes toward privacy; and, in the age of the VCR (video cassette recorder), short tapes addressing civil liberties issues. The Department recently published a small card, informing citizens of their rights, which they can use when approached by the police. There was sufficient demand for the card to be made available on the ACLU's web page. The PED occasionally organizes conferences on civil liberties subjects, and works closely with the affiliates to produce the kinds of material useful to them.

It should be noted that in a sense all of the ACLU's work involves civic education. The fact that certain policies are being litigated in the name of civil liberties is itself educational, whether the case is won or lost. Lobbying can be perceived as the attempt to educate lawmakers. Fund-raising letters and other efforts to increase resources have an educational effect.

The pro bono tradition, a necessary part of civil society, 18  exists among non-lawyers as well. The national organization and every affiliate has a board of directors, all of whom are volunteers. Many are lawyers; many are non-lawyer academics. Current national directors come from the fields of political science, education, psychology, public health, and business, as well as law. 19  The ACLU also benefits from the significant informal interlocking of public interest organizations, which draw on many of the same personnel. ACLU staffers may come from, or go to work for, groups like Human Rights Watch or the National Association for the Advancement of Colored People (NAACP). Similarly, lay directors frequently serve Human Rights Watch, Amnesty International, and so on in capacities such as volunteer fact-finders.

While the ACLU is involved in all civil liberties issues, it views free speech as the first among all rights. Justice Louis Dembitz Brandeis, one of the nation's great exponents of free speech, wrote in 1920,

The right of a citizen of the United States to take part, for his own or the country's benefit, in the making of federal laws and in the conduct of the Government, necessarily includes the right to speak or write about them; to endeavor to make his own opinion concerning laws existing or contemplated prevail; and, to this end, to teach the truth as he sees it...Full and free exercise of this right by the citizen is ordinarily also his duty; for its exercise is more important to the Nation than it is to himself. 20 
Brandeis was arguing the instrumental view of free speech, which is that it is a necessary condition of democracy. 21  Democracy is enactment of the will of the people. How can "the people" know what their will is unless they have access to all ideas? How can the enlightened electorate implicit in the democratic ideal be achieved without uncensored access to information and ideas? There is no one truth in a democratic society, beyond the sovereignty of the people. The people's chances of finding truth are tied to their knowledge of all truths. The right to speak, therefore, is really the right to hear, and the right to a free press is in reality the people's right of access to as many ideas as others may choose to publish. As democracy encompasses equality, with all members of the polity being treated equally in their access to the policy-making process, and as each person therefore has a right to speak his or her truth, the government cannot be permitted to decide which "truths" are legitimate. This, Brandeis added in 1927, is the basic premise of American democracy:
Those who won our independence believed...that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law--the arguments of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed. 22 
This is why the ACLU represented the neo-Nazi party in Skokie and argued successfully that all ideas should be permitted on the Internet. It is difficult to believe that any ACLU member, much less any ACLU leader, is anything but contemptuous of fascism, for fascism is the antithesis of civil liberties. But the ACLU operates on the principle that the government must not be allowed to pick and choose among ideas, to legitimate some and criminalize others. The ideas likely to be regarded as most heinous by government are those in opposition to its policies. The government, in other words, cannot be trusted with the power to interfere with the free flow of ideas vital to a democracy.

For the ACLU, there is no dichotomy between free speech and equality. The organization has wrestled with the problem posed by attempts in the United States, particularly on the nation's university campuses, to enact codes that would disallow racist or sexist speech. The justification offered for the codes was that hate speech directed at members of historically discriminated-against groups may be sufficiently traumatic to interfere with their ability to learn. The ACLU's Board of Directors, integrated in both race and gender, voted unanimously to follow a policy protective of free speech. African-Americans on the Board noted that if state governments had been able to stop speech offensive to the majority, the civil rights movement of the 1950s and 1960s would not have resulted in desegregation. Women, as well as gay men and lesbians, reflected that their drives for equality and legislation protecting their rights would not have been possible without free speech. An American legal scholar who supports speech codes points to "words that wound" 23  and the damaging psychological effect of some speech. That, the ACLU would respond, is part of the price of democracy. The social problems reflected in "hate speech" are not addressed by driving the speech underground. The ACLU's executive director continually points to racism as the United States' greatest problem. The solution, as he says, is not censorship, but education: the open exploration of the context in which racist and sexist speech is uttered, and the education of Americans about the horrors of racism and sexism. 24 

Human rights, a term that has come into common parlance only since World War II and the United Nation's adoption of the Universal Declaration of Human Rights in 1948, remains somewhat undefined. The incomplete nature of the Declaration is clear from the numerous international human rights documents, such as the International Convention on the Elimination of All Forms of Racial Discrimination (1965), the International Covenant on Civil and Political Rights (1966), and the International Covenant on Social and Economic Rights (1966), that have been generated by the United Nations since 1948. One of the major debates in the human rights community is about cultural diversity. Is it violative of human rights for a particular society to interpret them in the light of its own traditions and culture? What if one country's laws, as well as international instruments, prohibit hate speech but the laws of another permit it in the name of free speech? That, of course, is the dilemma for international human rights standards implicit in the Skokie case. American constitutional law accepts almost no limitations on the right to speech. Almost all other nations view hate speech as impermissible. Each polity and each human rights organization must argue that matter for itself. As we have seen, there are sharp differences about it even within the United States. There would be no cause for a group like the ACLU to challenge government policy as violative of the Constitution if there were unanimity in the United States about the meaning of human rights, 25  and that lack of unanimity exists within the legal and scholarly communities as well as within the public at large. 26  International human rights groups are divided on the question of whether there are group rights such as a right to self-determination. Again, national human rights organizations must work within the framework of domestic law -- but they might also challenge those laws on human rights grounds. Recognition of the legitimacy of nation-states implies acceptance of different laws in different countries. We might ask ourselves whether, as Vaclav Havel has stated, we are now part of a "global civilization," 27  and whether nation-states constitute a limitation on meaningful universal human rights standards.

The varying agendas adopted by human rights organizations will grow out of the remedies for human rights violations available within specific nations or regions, the particular kind of public and organizational pressure likely to succeed within the entity, the existence or lack of independent courts or ombudsmen, the extent to which both the elite 28  and the general public are knowledgeable about human rights (which is where civic education comes in), the availability of resources for human rights work, and so on. The factors common to all successful human rights organizations, in addition to their adherence to the principle that human rights supersede governments, are their independence from government, their use of volunteer labor, and the constant threat from government and by majorities which is a fact of life both for the organizations and their paid and unpaid workers. The ubiquity of voluntary associations that de Tocqueville saw as one of the unique features of American public life is no longer a phenomenon only in the United States. The role of human rights organizations is, in part, to support and legitimate the activities of other voluntary associations, thereby helping to make possible what we today call civil society.

The author's thanks go to Professors Michael Kahan, Jill Norgren and Melvin I. Urofsky for their thoughtful comments on a first draft.

1. Village of Skokie v. National Socialist Party of America, 366 N.E.2d 347 (1977); National Socialist Party of America v. Skokie, 432 U.S. 43 (1977); Collin v. Smith, 447 F.Supp. 676 (N.D. Illinois, 1978); Collin v. Smith, 578 F.2d 1197 (1978); National Socialist Party v. Skokie, 373 N.E.2d 21 (1978).

2. The most complete discussion of the matter was written by the ACLU's Executive Director: Aryeh Neier, Defending My Enemy: American Nazis, the Skokie Case, and the Risks of Freedom (New York: E.P. Dutton, 1979). Donald A. Downs took an adversarial position based on the potential psychological harm to survivors in Nazis in Skokie: Freedom, Community and the 1st Amendment (Notre Dame, Indiana: University of Notre Dame Press, 1985).

3. Reno v. ACLU, 117 S.Ct. 2329 (1997).

4. There is an extensive literature on the ACLU. See Samuel Walker, The ACLU: An Annotated Bibliography (New York: Garland Publishing, 1992).

5. This writer has been on the ACLU's national Board of Directors since 1979 and on the Board's Executive Committee since 1984.

6. The history is told in sympathetic terms by Samuel Walker, In Defense of American Liberties: A History of the ACLU (New York: Oxford University Press, 1990).

7. The overlap between the ideals of democratic citizenship and the values of civil society has been noted by a variety of scholars. See, e.g., Jurgen Habermas, The Structural Transformation of the Public Sphere (Cambridge: MIT Press, 1989).

8. Amnesty International has roughly 5,000 local groups around the world, offices in 46 countries, and 250 researchers who collect information about human rights violations. See Marie Staunton et al, The Amnesty International Handbook (Claremont, California: Hunter House, 1991); also see Jonathan Power, Amnesty International, the Human Rights Story (New York: McGraw Hill, 1981) and annual reports by the organization.

9. See, for example, the following reports (selected at random): China: No One is Safe (London, Amnesty International, 1996), Human Rights are Women's Rights (London: 1995), Turkey: Human Rights Defenders at Risk (New York, Amnesty International, 1994), United Kingdom: Political Killings in Northern Ireland (New York, 1994). Amnesty was started in 1961 by a British lawyer shocked at the imprisonment for seven years of two Portuguese students who had raised a toast to freedom in public.
Human Rights Watch began as Helsinki Watch in 1978 at the request of groups in Moscow, Warsaw and Prague that had been set up to monitor compliance with the Helsinki accords. It gradually expanded, adding areas of the world to its mission, until it emerged in 1987 in its current form. Working closely with national human rights organizations, it publishes reports that are country and subject-specific, such as Children of Bulgaria: Police Violence and Arbitrary Confinement (1996), Prison Conditions in Japan (1995), Human Rights Violations in the U.S.: a Report on U.S. Compliance with the International Covenant on Civil and Political Rights (1993), The Human Rights Crisis in Kashmir: A Pattern of Impunity (1993); and surveys of one area of human rights, such as The Human Rights Watch Global Report on Women's Human Rights (1995); The Human Rights Watch Global Report on Prisons (1993).

10. Walzer, "The Idea of Civil Society," Dissent, Spring 1991, pp. 292-304.

11. Given the existence of large private institutions such as corporations that can be as rights-invasive as any government, the ACLU also finds itself attempting to influence governmental policy designed to put such institutions into compliance with human rights standards and then litigating to ensure enforcement. The ACLU lobbied on behalf of legislation for gender equality, for example, and sued to have it respected by corporations. See International Union v. Johnson Controls, 499 U.S.187(1991), which relied on the Pregnancy Discrimination Act pushed through Congress by the ACLU and women's organizations. The Women's Rights Project of the ACLU was largely responsible for the Supreme Court's recognition of gender equality as a constitutional right. See Reed v. Reed, 404 U.S. 71 (1971) and subsequent cases.

12. Hobbes, Leviathan

13. Federalist Papers #51.

14. The Sedition Acts criminalized "false, scandalous and malicious writing or writings against the government of the United States," Congress, or the president, intended to defame them or weaken their authority.

15. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

16. The smallest affiliate has one staff member; the largest, thirty; the average is about four or five. The national office has an annual budget of $20,000,000, while affiliate budgets range from tens of thousands of dollars to the very few with budgets of a million, all depending on the number of members within the state. A complicated formula that governs the sharing of revenues between the national organization and the affiliates is aimed in part at ensuring that no affiliate has too little money to staff an office or to carry out civil rights activities.

17. Ginsburg gave up her ACLU affiliation when she was appointed to a federal appellate court and then as a justice of the Supreme Court.

18. Amnesty is dependent on letter-writing campaigns by volunteers. So is Human Rights Watch. Its staff of 100 relies on fact-finding missions undertaken under its direction by volunteers.

19. Affiliate boards are elected by local members. Each affiliate in turn elects one representative to the national board of directors, which also has thirty "at large" representatives elected by all the boards of directors--a total of some 80 people, about 65 of whom can be expected to attend each of the year's four long week-end meetings. The "at large" members are elected in three "classes," ten each year, to ensure continuity. Elections usually are for three year terms but may vary with the affiliate. The national board elects an executive committee which meets for a day-long session ten times a year and has meetings by conference telephone call when the need arises.
The existence of affiliates is a recognition that effective organizations must be attuned to local systems and values. Policies adopted by the national board of directors are largely accepted as binding by affiliates. Some affiliates may adopt policies on new issues before the national board does so; others may disagree with national policies. It is sometimes puzzling to find the national organization on one side of an issue and an affiliate on the other, and that is a rare occurrence. It does happen, however, when national policy differs from affiliate policy on a matter such as whether state government funding of religious after-school clubs is required when the government funds other after-school clubs or whether that kind of funding violates the clause in the Bill of Rights that prohibits government from "establishing religion."

20. Gilbert v. Minnesota, 254 U.S. 325 (1920) (dissenting).

21. The instrumentalist approach does not preclude the idea that free speech is also necessary to development and the psychological well-being of the individual, as some theorists argue and as Brandeis himself thought to be the case. See Philippa Strum, Brandeis: Justice for the People (Cambridge: Harvard University Press, 1984), pp. 314-315, and Vincent Blasi, "The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney v. California," 29 William and Mary Law Review 653 (Summer 1988).

22. Whitney v. California, 274 U.S. 357, 373 (1927) (concurring).

23. Richard Delgado, "Words that Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling," 17 Harvard Civil Rights-Civil Liberties Law Review 133 (1982). Also see Mari J. Matsuda et al., Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Boulder: Westview Press, 1993.

24. Ira Glasser, plenary address, ACLU Biennial Conference, June 1993.

25. As scholar Rodney A. Smolla notes, "The conflict felt by most Americans is that we hate hate speech as much as we love free speech. "Free Speech in an Open Society" (New York: Knopf, 1992), p. 168.

26. The controversy has generated an enormous amount of literature in the United States. A sampling of the work arguing that hate speech should be punished can be found in the Delgado article and Matsuda et al. book cited above, as well as Laura J. Lederer and Richard Delgado, eds., The Price We Pay: The Case Against Racist Speech, Hate Propaganda, and Pornography (New York: Hill And Wang), 1995 and Charles Lawrence, "If He Hollers Let Him Go: Regulating Racist Speech on Camps," 1990 Duke Law Journal 431 (1990). Works on the other side of the argument include Henry Louis Gates, Jr. et al., Speaking of Race, Speaking of Sex: Hate Speech, Civil Rights, and Civil Liberties (New York: New York University Press, 1994); Nadine Strossen, "Regulating Racist Speech on Campus: A Modest Proposal?," 1990 Duke Law Journal 484 (1990) and Samuel Walker, Hate Speech: The History of an American Controversy (University of Nebraska Press, 1994); There are interesting discussions of the issue Lee C. Bollinger, The Tolerant Society (New York: Oxford University Press, 1986); Smolla, op. cit., ch. 6; and Gara LaMarche, Speech & Equality: Do We Really Have to Choose? (New York: New York University Press, 1996), Part Two.

27. Vaclav Havel, "Address at Harvard University" (Prague: Office of the President, June 8, 1995), p. 12.

28. Theda Sjopcol notes the importance of "well-educated and economically better-off citizens" who have been "key founders, leaders, and sustaining members of voluntary associations" in the United States. Theda Sjopcol, "Unravelling From Above," The American Prospect no. 25 (March-April 1996):20-25.

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