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On Human Frailty and Public Interest Law

Worst Instincts: Cowardice, Conformity, and the ACLU, by Wendy Kaminer (Beacon Press, 2009).

(May 1, 2009) - In 2004, the New York Times published the first in a series of articles detailing bitter feuds within the national ACLU. The headlines tell the story:

12/18/04: “ACLU’s Search for Data on Donors Stirs Privacy Fears”

1/21/05: “ACLU Will Consider Disciplining Two Officials”

6/5/05: “Concerns Arise at ACLU Over Document Shredding”

5/24/06: “ACLU May Block Criticism by Its Board”

6/18/06: “ACLU Board Members Debate Limits on Their Own Speech”

6/19/06: “ACLU Warned on Plan to Limit Members’ Speech”

7/12/06: “ACLU Withdraws Proposals to Limit Public Criticism by Board”

9/26/06: “Supporters of ACLU Call for the Ouster of its Leaders”

These articles reported that a handful of ACLU board members had been raising pointed questions about the actions of the organization’s new executive director, Anthony Romero. Among the accusations:

That the ACLU was data-mining information about its contributors, in violation of the group’s principles and possibly of New York law governing charitable organizations.

That Romero failed to report to the board on a settlement with the state attorney general on the data-mining issue within the time required by the settlement agreement.

That the ACLU agreed to check its employees against the government's notoriously inaccurate terrorism watch lists, as a condition of remaining in a program allowing federal workers to make salary deductions to charitable organizations.

That Romero falsely told the board that lawyers had advised him that he didn't really have to check the watch lists.

Depending on one’s point of view, these were either major departures from the ACLU’s core principles or minor errors that any new executive might make, and that were more than outweighed by Romero’s considerable talents, particularly in fundraising. But the conflict went deeper: some viewed the dissident board members’ conversations with reporters from the Times and elsewhere as deplorable violations of fiduciary responsibility. The writer Wendy Kaminer, who was at the center of this storm, clearly thought the opposite – that her fiduciary responsibility, not to mention her principles, forced her to go public after most of the board had circled the wagons in defense of Romero.
Although a number of Kaminer’s fellow board members agreed with her and her major ally, Michael Meyers, that the leadership’s irregularities and departures from civil liberties principle were serious, they ultimately lost their battle to unseat Romero. Kaminer has now written a book documenting and reflecting on what happened.

It is far from a grudge book or a simple insider tale of hypocrisy in the high echelons of public interest law. Although Worst Instincts reflects the author’s understandable desire to set out a clear record of what happened and what was at stake, Kaminer is also a canny and thoughtful observer of human and institutional behavior. Her opening chapter insightfully reflects on the herd instinct and the pressures for conformity that sometimes prevent even dedicated individuals like those who comprise the ACLU’s national board from standing up for principle when faced with the risk of ostracism from the group.

What the book lacks is a balanced reflection on the frailties of human nature and the inevitable deviations from moral purity that befall even the most high-minded organizations. Kaminer seems to acknowledge that she is uncompromising in her expectations. (She jokes at one point that although she can be difficult, her colleague Mike Meyers “makes me look like Mary Tyler Moore.”) Her narrative casts Romero and his supporters in a dismal light, but she is mistaken to assume that his predecessor, Ira Glasser, reigned at the ACLU for 23 years without also encountering questions about his management style.

Perhaps it is in the nature of executive directors to attract “yes men” and women who will confound loyalty to the boss with loyalty to the organization, and will sometimes put both above loyalty to core principles. It was during the Glasser era that the ACLU became significantly more centralized: as the national office acquired more control over contributions, the state affiliates felt the loss of independence, and some bridled against it. Centralization, and the difficult balance between the priorities of funders and the demands of civil liberties, did not begin with Romero – and I am sure they are not unique to the ACLU. (I was an attorney in the ACLU national office from 1991-98, and before that, at the Massachusetts affiliate.)

During Glasser’s watch, the ACLU’s premier project, on reproductive freedom, staged a dramatic surprise departure from the organization because of dissatisfaction with programmatic and financial policies. Although some board members questioned Glasser about this, he deftly diverted any serious inquiry into underlying internal problems. The ACLU under Glasser was not the paragon of openness and lively board oversight that Kaminer imagines.

Kaminer raises profound and difficult questions about organizational integrity, politics, and personal loyalty. Peer pressures, herd mentality, and deviation from principle exist everywhere, but they are certainly more striking in nonprofit organizations that are dedicated to advancing justice, fairness, and openness. Were the compromises with civil liberties principles and basic honesty as dire as Kaminer and Meyers thought? On balance, was it worthwhile to “go public,” at whatever cost to the organization’s image or fundraising? Were they right to conclude that the ACLU had been so hopelessly corrupted that only an open airing of their concerns would save it?

Whatever the answer to these questions, the reaction of some ACLU people to Kaminer’s and Meyer’s muckraking was, in her telling, gratuitously insulting, and at least one institutional response contributed mightily to the public embarrassment. A proposal to limit board members’ communications with the media, as detailed by the New York Times in the spring of 2006 (see the headlines quoted above) was one of the politically dumber proposals to be considered by a group whose primary cause is freedom of speech.

Putting aside that gaffe, what can one conclude from Kaminer’s chronicle? Yes, there is human weakness, arrogance, and clannishness in all organizations, perhaps particularly at the top. At the ACLU, though, it is the affiliates, grounded in their local communities, that do the vital, sometimes astounding day-to-day work that is the heart and soul of the organization’s mission. It was the Massachusetts affiliate in 1968 that saw the civil liberties issues in the government’s prosecution of Dr. Benjamin Spock and four other prominent activists for advocating resistance to the war in Vietnam, when the national organization wanted to steer clear of the case. It was California ACLUers who insisted on representing Fred Korematsu in his challenge to the government's internment of Japanese-Americans during World War II; the national office didn’t want to get involved. It was the national ACLU board that caved in to anti-communist witch hunting when it ousted one of its founders, Elizabeth Gurley Flynn, for her Communist Party membership – i.e., for her expression and beliefs.

Yet the ACLU is a great institution, and American civil liberties would be in a significantly more perilous state without it. Which doesn't mean that it can't do better. One can only hope that the ACLU’s members and leaders will take Kaminer’s book to heart instead of dismissing it – and her – with ad hominem attacks, as they sometimes did during the course of the battles she recounts.

Marjorie Heins

The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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