A.C.L.U. -- Not All That Civil

By Richard N. Ostling

The American Civil Liberties Union is ever ready for a legal squabble, and sometimes the most intriguing ones occur among its own 300,000 members. Lately they have been split over free speech and hate speech, sexual harassment and the Rodney King beating, the same arguments that have divided other Americans. One essential conflict is between strict libertarians, for whom individual rights are as sacred as Moses' tablets, and new-breed egalitarians who favor minority and feminist causes and are more willing to see civil liberties give ground in the name of justice and equality.

After last year's acquittal in state court of the four policemen who beat Rodney King, A.C.L.U. president Nadine Strossen joined calls for a second prosecution under federal law. That represented a break with an A.C.L.U. position adopted in 1990 that repeat prosecution by different jurisdictions for the same act amounted to double jeopardy, which is unconstitutional. Last summer the national board suspended that position and considered supporting the second trial of the policemen. Then, at an argumentative meeting this month, the board voted 37-29 to reinstate the 1990 policy. All eight African- American board members at the meeting backed the losing side. "Rodney King could be my son," said Gwen Thomas, chair of the Colorado Civil Rights Commission.

First Amendment absolutists lost, however, when the organization adopted a position in January on the hate-crime case being argued this week before the Supreme Court. The A.C.L.U. is siding with the state of Wisconsin's view that it is constitutional for courts to impose heavier penalties when an action that is already a crime, like assault, is motivated by bigotry. In a rare step, the Ohio chapter of the A.C.L.U. has filed a Supreme Court brief that opposes the national organization and argues that such laws are an inadmissible limitation on free speech. And while the national organization in 1990 came out against speech codes that punish bigoted remarks on college / campuses, the board voted after heated debate this month to revise its position that workplace speech could be regarded as sexual harassment only when it was directed at an individual and had "definable consequences" on such things as promotion. The new definition covers offensive language that is aimed at no one in particular -- like a bulletin-board sign that says A WOMAN'S PLACE IS IN THE KITCHEN -- and merely leaves hurt feelings.

Insiders disagree on whether the shifting views are fostered by the A.C.L.U.'s in-house affirmative-action plan that requires the board, formerly dominated by white males, to be at least 50% female and 20% minority. Whatever the reason, old soldiers like Harvard law professor Alan Dershowitz and columnist Nat Hentoff, both onetime A.C.L.U. board members, see a serious threat to single-minded support of individual liberty. Dershowitz asserts that "the A.C.L.U. is a very different organization today." To him, the key tenet of the A.C.L.U. faith is support for free-speech rights for "causes that you despise." Without that, "all you are is a political activist."

The consensus that appears to be emerging within the A.C.L.U. is typified by board member and gay activist Tom Stoddard, who says the absolutists are seeking "otherworldly vindication of one constitutional right without recognizing that all rights have value and can be reconciled." To him, both equality and liberty must be weighed and many rights enshrined. "Pure consistency is never possible in an organization that addresses so many rights simultaneously," says Stoddard. To the embattled Old Guard, however, purity and consistency were precisely what the A.C.L.U. was once all about.

With reporting by Ketanji O. Brown/New York and Julie Johnson/Washington