American’s Civil Liberties

THE OPEN MIND
Host: Richard D. Heffner
Guest: Nadine Strossen
Title: America’s Civil Liberties
VTR: 5/5/95

I’m Richard Heffner, your host on The Open Mind, and the first to concede that it’s just not fashionable these days to embrace the “L” word, “L” for “Liberal,” or to pay one’s respects to the American Civil Liberties Union. I do both happily, however. Indeed, back many, many years ago, I served for a while on the National Board of Directors of the ACLU. So, those are my credentials, so to speak, and my possible conflict of interest disclaimer as I introduce as today’s Open Mind guest for the second of two programs, Nadine Strossen, law professor, president of the ACLU and author of Scribner’s new Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights. I suggest that now we continue with what we started last time.

Nadine, at the very end of the program, you were referring to the president’s, Bill Clinton’s comments about deploring the hate speech on radio that we have had to deal with in recent years, but no talk of censorship.

STROSSEN: Exactly. I think he was responsibly exercising his free speech rights and making it very clear that he was not advocating censorship, but was, in fact, advocating counter speech. Now, having said that, and also to dispute your implication that the ACLU is a liberal organization, we certainly criticize much else that Clinton has said, specifically with respect to counter terrorism. Indeed, even before the Oklahoma city bombing, the Clinton administration had proposed an omnibus counter terrorism act that would indeed severely violate fundamental First Amendment liberties and treat people as being guilty by association because of their support for certain political causes, for example. So Clinton does not have a perfect record on freedom of speech, by any stretch of the imagination.

HEFFNER: Now, how far would you or would the ACLU go or be willing for the nation to go in protecting itself? Self protection, you would grant, is as much a part of our constitutional heritage as the First Amendment to the Constitution.

STROSSEN: Certainly. And as Justice Robert Jackson said, “The Constitution is not a suicide pact.” And in my first program with you, I said that speech, and indeed other liberty, can be restricted if, but only if, one can show a clear and present danger of actual or imminent harm. And I think it’s very striking that top officials within the FBI and the Justice Department have themselves been saying we do not need any further authority above and beyond what we already have. We do have enough law enforcement power both to prevent and to deter terrorism. I think the World Trade Center bombing in New York is a very good example of that, where the perpetrators were promptly apprehended, prosecuted, and have now been put away for very long terms under existing law enforcement authority.
HEFFNER: Nadine, one of the points that, one of the many points that are being made now is that it’s one thing to apprehend, try, convict, if you will, and put away perpetrators, but that we need to defend ourselves and that we have not very successfully, given the Trade Center and given Oklahoma, we have not very successfully defended ourselves. How many pictures do we need to see of children destroyed, their lives snuffed out, before we take action before the event occurs?

STROSSEN: Well, as I said in the last program, and it certainly bears repeating, any crime is too much crime, any violence against a child or an adult is too much violence. Unfortunately, given human nature and human society, at least at the present stage of civilization, I don’t think anybody would aspire to eliminating all crime. That is absolutely impossible. And I think all of us recognize that we do not want to take extreme measures to cut back on the number of crimes somewhat because we would be suffering restrictions on our freedom and our privacy that would be intolerable.

HEFFNER: Well, look, let’s stick to this question of terrorism. You respond to the president’s request for more authority by saying, “We have enough …

STROSSEN: Yes, exactly.

HEFFNER: …at hand. We can apprehend these people after the deed. We can put them away.” The question …

STROSSEN: But we can apprehend them in advance. The authority that the FBI currently has, Dick – and I want to be very precise about this – is they do not have to wait for actual, consummated criminal or terroristic activity in order to investigate. To the contrary. They have very broad investigative authority that is triggered any time there is a reasonable indication of planning of illegal or violent activity. And under that authority, who knows how many potential terroristic acts have been deterred? It’s something that we can’t measure. But why many in the FBI and law enforcement themselves say, “We already have all the authority we need.” Many of them say, as do police officers and people in law enforcement at all levels, “We have enough power; we need more resources.” And we certainly do not oppose that part of the president’s initiative that would provide more personnel and other resources so that the FBI can exercise the investigative authority they already have.

In a free society, the crucial element, though, is that there be some evidence of at least planning or conspiracy to commit an illegal or a violent act. Once we eliminate any requirement of evidence of that kind of activity, then the government would be investigating on the basis of something else. And the something else in our history, unfortunately, including recent history, has always been political beliefs, ethnic origin, racial background. And we simply cannot, in a free society, put people under suspicion, make them guilty by association because of their beliefs or because of the group to which they belong. There has to be some evidence of wrongdoing.

HEFFNER: Well, then, how close does the ACLU come, in philosophy, in attitude, in fear, to those who have been saying, “We live under the domination of a hostile, leviathan government”? And these are the people who seemingly have at least contributed to the terrorism that we’re facing now. How close is your position to that position?

STROSSEN: The ACLU is a non-partisan and non-ideological organization …

HEFFNER: No, I understand.

STROSSEN: … for precisely the reason that there, no matter what group you are, no matter what individual, who you are as an individual, we will agree with you on some issues and disagree on others. So, with respect to those who condemn, for example, the government’s conduct with respect to the Waco situation, we agree in part. We issued a report at the time that condemned the excessive use of violence and the violation of Fourth Amendment rights in that context. Where I think we part company with those that you are describing, Dick, is we are not opposed to all government regulation whatsoever. To the contrary. The ACLU has advocated certain laws where we think the government can advance human rights. For example, we have lobbied in favor of every Civil Rights bill, every anti-discrimination bill. So that sets us apart, I think, from some of those extreme anti-governmental advocates. For us, we say it all depends how the government is using its power. It can use it to advance human rights; it can use it to threaten and destroy human rights. So we take it on an issue-by-issue basis.

HEFFNER: Let me go back for a moment to your statement that the government has enough authority, the FBI does have enough legislative sanction, legal sanction, to do what is necessary to protect us. Does that mean that the ACLU will protect the FBI in its use of the power it has now, that you will be pleased to see the bureau use the power, the investigative power it has now?

STROSSEN: Well, in fact – and I think this is a very important point to make – the ACLU has long believed that the FBI already has too much power. We criticized the guidelines when they were issued in the 1980’s under the … Or, I guess earlier than the 1980’s by the Ford administration, and then weakened in the 1980’s under the Reagan administration. And our view that already undermines the degree of evidence that is needed to justify an investigation below what we think should be there. So we certainly oppose any further loosening of that authority.

HEFFNER: How credible, then, does the ACLU’s position become if, given the World Trade Center, and given Oklahoma City, you protested against and are uneasy with the powers that the bureau has already? How credible does your position become on the matter of extending the powers and abilities for investigation that the president has asked for?

STROSSEN: Well, I really don’t understand what one has to do with the other in the sense that I don’t think any, even the most totalitarian society has not been able to completely eliminate crime or to completely eliminate terrorism. So I think it’s a false tradeoff between civil liberties and terrorism or a lack of safety. Thomas Jefferson made a statement more than 200 years ago which I’m very fond of quoting. And I think it was sadly prophetic. He said, “Any society that would trade a little liberty for a little security will deserve neither and lose both.” People are understandably desperate, furious, anxious about such crimes as exist in ordinary society, let alone the terrible tragedy that we saw in Oklahoma City. And in grasping for some kind of quick fix solution, we’ll always be ready to say, “Oh, if only we didn’t have so much liberty, maybe that would do something about the problem.” In truth, though, if you take a cold, careful, calculated analysis, that is a false tradeoff. We are not going to be able to solve the problem of terrorism, to eliminate it altogether, even if we gave up all of our liberties.

HEFFNER: Let’s go back to the Preamble to the Constitution and its provision for the general welfare and the national security …

STROSSEN: And to secure …

HEFFNER: … and the good society …

STROSSEN: And to secure the blessings of liberty to ourselves …

HEFFNER: May I point out that securing the blessings of liberty came as a result of securing the general welfare and the national security, “So that we can secure the blessings of liberty to ourselves and our posterity, and the one derived from the other.” So, we can quote the Constitution and Thomas Jefferson, et cetera. Let’s deal with what Americans themselves are thinking about now. I’m intrigued with the degree to which you may consider yourselves out of step with the way most Americans have reacted to the threats of the last two, three, four, five years. How do you consider yourselves? In step? Out of step?

STROSSEN: Actually, in step with those who have thought seriously about problems of crime and violence in general. And, to me, terrorism is just, you know, one extreme, dramatic example of criminal and violent conduct. There’s been an interesting coalescence within the last five years, Dick. Those who are involved in the criminal justice system – and I’m not talking just about defense attorneys and civil libertarians, but I’m also talking about police officers, prison commissioners, corrections officials, prosecutors – have agreed that we, as a society, are putting too much faith in the criminal justice system and not enough resources and not enough attention to what used to be called, in a liberal phrase, “root causes of crime.” There is now a very effective coalition called the Coalition for an Effective Crime Policy that includes all of these law enforcement officials who are saying the criminal justice system is never alone going to be able to solve the crime problem. We have to deal with prevention, and we have to deal with rehabilitation. We cannot do it simply through punishment. Even execution, even life imprisonment is not going to solve the problem.

HEFFNER: Nadine, let me go back to the question, because I think it’s too significant – not because I raise it, but I think it’s too significant – I’m not talking about the community of learned individuals, I’m not talking about that community of persons who, as you said, have thought very seriously and long and hard about this.

STROSSEN: Okay, but may I just underscore one thing, Dick?

HEFFNER: Sure.

STROSSEN: I mean, now you’re going to probably be drawing a dichotomy between people who haven’t thought hard about an issue and people who have thought hard about an issue, and I’d be happy to address that. But I do want to underscore that this is not a matter of those who are law enforcement, on the one hand, versus defenders of people accused, the rights of people accused of crime, on the other hand.

HEFFNER: No, I understand.

STROSSEN: Across that spectrum there is a consensus that our criminal justice policy is misguided and ineffective and a waste of money, as well as violating civil liberties.

HEFFNER: Don’t misunderstand me. I accept that in the terms in which you put it. I understand that. The question I ask is to what degree this position of this larger, learned community, which includes the ACLU, which includes people who are thoughtful in the criminal justice system itself, and not just defense attorneys.

STROSSEN: Right.

HEFFNER: To what extent, I repeat, are you out of step with Americans generally?

STROSSEN: Apparently not very much. There was a survey that was done about a year ago by the National Law Journal, and they had done a similar survey five years before. And I was delighted to see, when they asked people, “Are you willing to give up your rights in order to deal with the crime problem?” First of all, the first question was, “Are you …

HEFFNER: What a question, Nadine.

STROSSEN: No, but it was much more refined than that. Well, because these are the questions that we’re hearing now with respect to terrorism.

HEFFNER: No, no, no, no, no. No, we’re not. We’re not hearing the question, “To what extent will you give up your rights.” We are hearing that we want to protect ourselves, and here’s Bill A and Bill B, et cetera.

STROSSEN: Well, I don’t want to quibble over the exact way that the words are …

HEFFNER: Okay. Fair enough.

STROSSEN: … because I understand that there’s a science to this. But the point was, and those who conducted the survey – which was Penn & Schoenen Associates, and they’ve got a good reputation for asking questions in a way that will yield meaningful answers – they were surprised at the extent to which large percentages of the public – they weren’t surprised at the extent to which a very, very large percentage said, “Not only are we concerned about crime; we’re panicked about crime.” But having said that, they said, “We do not want to cut back on Constitutional protections for people accused of crime. We do not want to cut back on the Miranda warnings or on the exclusionary rule. We do not think there should be restrictions on violence on the media.” And I was very pleasantly surprised, because I had the stereotypical view that I think your question reflected, which is that the average person would be willing to make a tradeoff, at least between other people’s rights and safety, and perhaps between even his or her own rights and safety. And that survey, which I was very impressed by, suggested that that is not, in fact, the case.

HEFFNER: Are these the same people who wouldn’t sign a petition that was really the Declaration of Independence?

STROSSEN: (Laughter) Exactly. Or the Bill of Rights. Yeah.

HEFFNER: Right? So …

STROSSEN: You know, there are surveys and there are surveys. I understand that there can be a great deal of variation depending how you ask the question.

HEFFNER: What I was really thinking of was the last election. I was really thinking of the degree to which the notion that our entire approach to crime is skewed by a do-good attitude, and the degree to which people said, “Cut the social programs that have been designed, whether they have to do with kids playing basketball at night or otherwise, cut the programs that the people who are thinking about the root causes of crime identify as ameliorative.” Now, you’re saying you’re not out of step.

STROSSEN: Yeah.

HEFFNER: But it seems to me that you are out of step with a nation that doesn’t want to think in terms of root causes.

STROSSEN: I think the nation does want to think in terms of economics. And just speaking from my own experience of, you know, constantly doing debates and public presentations to not sympathetic audiences on these issues, I find very strong interest in the cost effective argument. I like to say to people: It is not cost effective to spend on the average of $30,000 per year per inmate – and in New York City, it’s $60,000 per year per inmate – to keep somebody in prison when more than 50 percent of people who are now going into all levels of prison are going in for non-violent drug offenses. Many of them are first time offenders. They are not getting drug treatment in prison. And guess what they are getting there? They’re getting drugs there. Meanwhile, because of all these tough, so called tough mandatory minimum laws that require non-violent drug offenders to be imprisoned for long periods of time, many of our prison systems are having to let out violent offenders, people who have committed rape and assault and robbery and other violent crimes. Now, that kind of pragmatic argument is one that I receive a lot of sympathy from.

HEFFNER: Then why did your side lose in the last election, lose so overwhelmingly?

STROSSEN: Well, our side … you know, my side being …

HEFFNER: I know you’re not political.

STROSSEN: … people making this kind of argument were completely absent from the last election. There was no distinction that I could tell between Democrats or Republicans, liberals or conservatives on the crime issue. Yes, we saw Mario Cuomo still continued to oppose the death penalty, and perhaps that’s why he lost the election. But he was trying to sound tough on crime just as was Pataki. And Clinton certainly talked the same line as did the Republicans. I think there has been a failure at the political level. The rhetoric there seems to be, they don’t want to lead popular opinion, they try to, they’re pandering, I think, to people’s worst fears, and not listening to experts in the law enforcement community.

HEFFNER: Do you think that speech can ever present …

STROSSEN: I defend their right to do that, of course. (Laughter)

HEFFNER: Do you think that speech can ever present a clear and present danger?

STROSSEN: Yes.

HEFFNER: Except for the crying “Fire!” in a crowded theater when there is none?

STROSSEN: Yes, yes. And both of my books, the book on pornography and the book on hate speech, do recognize that in certain contexts with a certain intent and a certain effect, words alone can be harassing, they can be coercive, they can be intimidating, they can be threatening. And all of that kind of expression is illegal and should be prevented and punished. To give one example, you know, sexual harassment in the workplace. If you have a supervisor who is saying, “I’m not going to give you a promotion unless you sleep with me,” or who is constantly making sexist and demeaning jokes in your presence, that is something that is violating, not only clear and present danger, it is actually violating your right to equality of opportunity in the workplace.

HEFFNER: You begin to sound like Katherine McKinnon.

STROSSEN: Oh, not at all. She says that any sexual expression or any expression with any sexual connotation is automatically sexual harassment. I absolutely reject that. And in fact, the ACLU successfully defended the right of firefighters in Los Angeles to read sexually explicit magazines on the job as long as they were not using them in a way that was threatening or harassing or, you know, targeting fellow employees, or I should say sister employees who objected.

HEFFNER: So you do draw the line, just as the rest of us do.

STROSSEN: I do not draw it on the basis of content alone. I say you have to look at the overall context. I would never say because expression contains certain sexual elements it is automatically unprotected. I would say sexual as well as nonsexual expression can be used in such a way that it is harassing. I could show you my book. And if I were repeatedly assaulting you with it in a way that you didn’t want to see it, that would be harassment. (Laughter)

HEFFNER: My goodness, you couldn’t. You couldn’t do that, but you could tell me in About Defending Pornography, in just the few minutes that we have left – and I hope sometime we can go on to the question of speaking of race and speaking of sex, or always speaking – whether you can tell me why, as you state, the high court has always – and this comes back to something we talked about in our previous program – the high court seemingly has, when it comes to sexual matters, taken a position that is antithetical to your own.

STROSSEN: Over strong dissents, I have to emphasize. So there have
always …

HEFFNER: But with the majority.

STROSSEN: Yes, but a narrow majority. I think, you know, sociologists or anthropologists would be in a good position to answer this, Dick, because I think it has to do with Americans’ attitudes toward sex, as seeing it as being inherently dangerous, inherently suspicious, inherently evil, even if they are not able to point to a particular danger the way the Supreme Court has insisted on with respect to every other kind of expression. I think this probably has to do with our puritanical roots as a society which are reflected in our legal institutions.

HEFFNER: And as a court?

STROSSEN: Yeah. I mean, the …
HEFFNER: Because we’re talking about the high court now.

STROSSEN: Exactly. We’re talking about five members of the high court who use a double standard with respect to sexual expression from what they use to other expression without being able to give a specific reason.

HEFFNER: Well, what we’re doing is talking about a majority.

STROSSEN: Right.

HEFFNER: And we’re talking about a proper respect for the opinions of mankind, meaning for the majority of mankind, for the majority of Americans.

STROSSEN: Well, except the whole notion of freedom of speech is that no majority, no matter how large, should be able to take it away from any minority, no matter how small.

HEFFNER: But that isn’t quite true, because you, yourself, have cited the instances where …

STROSSEN: If one can show a clear and present danger. And in the obscenity cases, the court has allowed restriction of speech just because it is about sex, without insisting on a clear and present danger. Why is it that they have that double standard? And I just say it’s because sex has always been viewed as being inherently dangerous in our society. And that, as I say, is a matter for cultural anthropologists rather than for lawyers to explain.

HEFFNER: You say, “For lawyers to explain.” Where do you think we’re going, in the minute we have left, where are we going?

STROSSEN: Thank you. I do think that there is a very good chance that the current United States Supreme Court will visit the whole question of obscenity and sexually explicit expression. It has not done so in a concerted way since 1973. And we have a very broad ideological spectrum, ranging from the liberals to Antonin Scalia on the right, and the court suggesting that it’s time that we revisit our obscenity doctrine consistent with the notion that the government should never punish speech because of its content. And yet that’s what the whole doctrine of obscenity rests on: because of the sexual content alone, we’re going to treat this speech differently. So I would not be surprised if the court reexamined it, and if we got everybody from Stevens on the left to Scalia on the right to give stronger protection to sexual expression.

HEFFNER: That’s a wait and see question.

Thank you so much for joining me again, Nadine Strossen.

STROSSEN: My pleasure.
HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. And if you’d like to share your thoughts about our intriguing guest, our program today, please write: The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150. For transcripts send $2 in check or money order.

Meanwhile, as another old friend used to say, “Good night and good luck.”