"Why aren't you, Bob?"

Being non-partisan, the ACLU stays out of elections, but that doesn't stop politicians from trying to drag us into them. Invoking our name seems to be quite popular with politicians this year.

Take for example the race between incumbent Congressman Rick Renzi (R-AZ) and his challenger Ellen Simon. Ellen Simon once served as president of the Cleveland, Ohio, chapter of the ACLU. Rick Renzi continually refers to her as "ACLU Ellen" in his materials (it's actually so over the top it's kind of funny). But the worst is a television ad he ran that says, according to an article in the Arizona Daily Sun, "Liberal Ellen Simon served as the president of the ACLU, a radical organization that defends hard-core criminals at the man/boy love association (North American Man/Boy Love Association), a national group that preys on our children."

There are so many things wrong with that statement it's hard to know where to start. But here goes:

1. The ACLU of Mass. took the NAMBLA case, and therefore Ellen Simon and the ACLU in Ohio had nothing to do with it.

2. She wasn't the president of the national ACLU, as implied, nor even of a state ACLU.

3. The ACLU only defended the free speech rights of NAMBLA, just as we would do for any group. This does not mean we support their views. We've defended the free speech rights of a range of groups, from peace groups to Nazis to anti-abortion protestors.

Congressman John Doolittle (R-CA) played a similar hand in his race against Charlie Brown. This is taken directly from Doolittle's release on his campaign website:

Roseville, Oct 11 - Congressman John T. Doolittle called on his challenger Charlie Brown to immediately resign his membership in the American Civil Liberties Union (ACLU), an organization which has actively defended pedophiles. Brown recently told a local newspaper that he was proud of his membership in the organization.

"It is astounding that anyone could defend a group dedicated to aiding and abetting pedophiles," said Doolittle. "Clearly, the values of the ACLU are not the values of parents or anyone else concerned with the wellbeing of children. Charlie Brown should be ashamed of his membership in such an organization."

The ACLU has argued in court on behalf of the North American Man/Boy Love Association (NAMBLA) whose website posted techniques designed to lure boys into having sex with men and supplied information on what an adult should do if caught. In fact, NAMBLA actually issued a publication entitled "The Survival Manual: The Man's Guide to Staying Alive in Man-Boy Sexual Relationships."

Truly unbelievable. I guess we've made some progress, though. It used to be just accusing someone of being a "card-carrying member of the ACLU" (a la George Bush Senior) enough. Now at least they have to connect the ACLU to pedophilia before using it to smear people.

Thankfully both Simon and Brown have defended their support of the ACLU, unlike Michael Dukakis. Of course I now have to quote Michael Douglas's great speech in The American President: "For the record, yes, I am a card-carrying member of the ACLU, but the more important question is 'Why aren't you, Bob?'"

Sara in Philly

The Story of Jane (continued?)

I recently came across a website called Emergency Kindness and thought I'd share it with you as my post for today. The website explains,

Emergency Kindness is run by a team of "Janes" spread throughout the country. EC [Emergency Contraception] is hard to get in America due to the widespread practice of doctors and pharmacists refusing to give the pill because it conflicts with their personal beliefs. If you are having trouble procuring EC, we will do everything in our power to get it to you before your 72 hours are up.

On the website, visitors can get alert "Janes" that they're in need of assistance getting EC and/or can sign up to be a "Jane."

Akin to the underground abortion service that emerged pre-Roe v. Wade, this service allows women in need of EC to privately reach out for help. The legality of this strategy for increasing access to EC, however, is yet to be determined by me and by the creator herself. She writes in her blog,

I've been reading up on reproductive rights cases and law in general lately, trying to make sure we're in the clear here. I cannot find a precedent for anything of this kind. I don't think I can be charged with drug dealing per se, because technically I have not touched any of the Plan B (and the Janes would not count as anything more than accessories anyway), and besides which Plan B isn't something like cocaine. It's not an abused substance. If it can be proved that any of our clients were under 18, any charges against me would have be phrased as "distributing contraceptives to a minor." And I have no idea how a case like that might hold up in court.

Neither do I.

Julie in Philly

Where we start from

We've been getting a lot of comments about the immigration issue, which the ACLU responds to generally as it does to most issues - in terms of the law, the Constitution, and individual rights. Equal rights for all people. We start from taking for granted the inherent equality of people, even though we see from our daily experience that not everyone is treated equally.

Stepping outside of my ACLU shoes and into a my postmodern galoshes, I want to ask a question that starts somewhere else. Rather than ask, "How do we make people equal under the law?", we might ask, "How do we make people?" -- that is, how do we think about what a person is in a legal framework?

When the concept of a social contract started to emerge, it took as a premise the equality of people. But at that time (1650-1800), who "counted" as a person? Enslaved Africans certainly weren't. Women didn't have the vote and had limited roles in public life. Not to mention Native Americans, who had been killed or run off their land when Europeans arrived to settle on the continent.

Over time, our society has been more or less promoting various groups of people to the status of "persons" under the law - after a lot of hard-fought battles by people claiming that recognition. And the legal realm is still a very important site for these battles and for gaining recognition.

But there are limits to mere recognition, and our current political system has its roots in a time when whiteness, middle class status, male gender, heterosexuality, and able-bodiedness shaped the definition of personhood - and the legal and political norms of society. Our laws - and the way they are interpreted and enacted - still contain the legacy of their history.

So while we try at the ACLU to make the law live up to its promise of equality, I - as a citizen of this country - struggle to understand the ways the law is limited. Is it possible to define ourselves by difference (immigrant, LGBT, African American, female), but still have equality? Hidden behind our "differences" is an assumed norm. What defines the norm, and why is it the norm?

These are questions we can ask that might push us to consider how the law limits our understanding of difference, at the same time that it offers opportunity to achieve a better quality of life for all people. And when the sticky issues of immigration rear their heads, it might be a good time to question the unspoken norms we all live with and that we each help to either protect or disrupt.


Jess in Philly
with thanks to Charles W. Mills (1998)

A Day with an Immigrant

Yesterday was a whirlwind here in Harrisburg. A few months ago, we started planning Power to the People! (P2P), a series of community forums in Harrisburg city. We planned them for the fourth Monday of the month in September, October, and November, and this month's forum was on immigrants' rights. We then planned another event at Widener School of Law in Harrisburg with our student chapter there on the same day with one person, Dr. Agapito Lopez, who has emerged as a spokesperson for the Latino community in Hazleton, speaking at both events.

Ironically, we found out a week or two ago that Hazleton Mayor Louis Barletta would be speaking on the same day in Harrisburg at the Pennsylvania Press Club, which opens its luncheons to the public, so we made a reservation and had lunch there. Mayor Barletta stuck to his talking points throughout the speech and the Q&A session, but particularly striking was his display of two collages of newspaper headlines and photos from the Standard-Speaker, Hazleton's daily fishwrap, blown up onto boards about 2' x 3'. Although Barletta continued to narrowly define his mission, to insist that there will not be racial profiling in enforcing the ordinance, and to swear that he welcomes documented immigrants to his town, the posters with their photos of young Latinos in handcuffs, some looking a bit disheveled, in white tank tops or a t-shirt that says "G Unit," blared another message altogether: "Beware of dark-skinned people. They are criminals."

(Not surprisingly, none of the headlines said, "Convicted." They all said, "charged," "arrested," etc., so in the eyes of the law, they were all innocent since they had not been proven guilty. But I guess it's old-fashioned to still believe in "innocent until proven guilty.")

But with all of this focus on Hazleton throughout the day, the most striking moment came during the evening P2P event when Ho-Thanh Nguyen of the Pennsylvania Immigrant and Refugee Women's Network spoke. Ho-Thanh started with a prepared script on the mission of PAIRWN, but then she veered into a personal story that appeared, based on her mannerisms, to be unprepared. Ho-Thanh told the audience about a recent experience of harassment. Her phone rang at 8:30 on a Saturday morning, and a woman on the other end launched into a tirade, telling her to go back to her country (Ho-Thanh came here from Vietnam in 1975) and calling Ho-Thanh a "parasite." For me, it was the most dramatic moment of the day, and you could hear a pin drop in the room.

This is why we push back against unjust public policy that kicks around the most vulnerable among us.

Andy in Harrisburg

The P2P event was taped by Pennsylvania Cable Network. Typically, PCN airs events within a few days, so check out their schedule by clicking here. They update it around the close of business each day. PCN is available on cable systems around the state and online at this link.

ACLU fights Internet censorship law - for the second time

Today marked the opening of a multi-week trial in the battle against Internet censorship with ACLU v. Gonzales. The case is being tried right here in Philadelphia.

You're forgiven if you can't remember this case, since it started as ACLU v. Reno, then ACLU v. Ashcroft, before getting its current name. The ACLU filed suit against the Child Online Protection Act (COPA), passed in 1998, the day it went into force. The ACLU challenged the law because it would impose draconian criminal sanctions, with penalties of up to $50,000 per day and up to six months imprisonment, for online material acknowledged as valuable for adults but judged "harmful to minors."

In 2004, the Supreme Court upheld the district court's decision to stop the enforcement of COPA. Because the Internet had changed dramatically in the five years since the district court gathered factual evidence, the Justices returned the case to the district court for a full trial on whether there are effective ways to keep children safe online that burden speech less than COPA's criminal penalties.

Our clients include Salon.com, Sexual Health Network, and the owner of UrbanDictionary.com, among others. Clients like Urban Dictionary, which allows people to post their own definitions of words, are particularly at risk from a law like this because they would be responsible for the content of what other people post. (I, of course, had to go look up the definitions of the ACLU!)

The trial is open to the public. It's in the Federal Courthouse at 6th & Market, 17th Floor, before Senior Judge Lowell A. Reed, Jr.

You can find more about the case here, including profiles of our clients and the long convoluted path this case has taken to get to this point.

Sara in Philly

Pennsylvania: Not Welcome Here?

The ACLU often claims that the American people are actually with us, by and large, on many of our issues. If the poll released today is to be believed, that claim does not hold true regarding the anti-immigrant ordinances mushrooming in Pennsylvania.

Pennsylvanians strongly support local laws that crack down on illegal immigrants, such as controversial ordinances recently enacted in Hazleton, Luzerne County, a new statewide poll shows.

Sixty-five percent of those polled support Hazleton's action -- designed to make the Eastern Pennsylvania community "the toughest place on illegal immigrants in America," according to its mayor -- and nearly two out of three (63 percent) say they would back similar laws in their communities, the survey conducted by Susquehanna Polling and Research found.

About 78 percent of Pittsburgh-area residents supported the law -- the strongest support of any region in the state.

The ACLU does not support illegal immigration. Our main beef with these resolutions is that they turn untrained individuals into immigration agents. There is no way that business and property owners are well trained enough to discern legal from illegal immigrants, or legal from fake documents, and so it will be easier for them to just discriminate against anyone they suspect of being foreign-born.

Another issue is the 'English-only' provisions in some of these ordinances that would prevent legal residents and United States citizens from obtaining important information from their government. It also prevents non-English speaking legal residents or citizens from effectively communicating with their elected officials, infringing on their First Amendment and equal protection rights.

Immigration is a complicated issue, and one that causes anxiety in the ACLU membership. We've called on some our members to speak against the resolution in places like Altoona, only to have them say "why would we want to do that?"

I'm curious about what folks think. Why is this issue so divisive? For those who oppose these ordinances, what are your ideas for changing the views of those who support them? Do you think people would be more likely to oppose them if they understood the full implications for legal as well as illegal residents? I understand that many people are frustrated by our broken immigration system, but how do we keep that frustration from boiling over into ugly and unconstitutional laws?

Lisa in Pittsburgh

Olbermann: "Beginning of the end of America"

More reaction to President Bush signing the Goodbye to American Values Act (I'm trying to come up with a new name each time I write), this time from Keith Olbermann:

For, on this first full day that the Military Commissions Act is in force, we now face what our ancestors faced, at other times of exaggerated crisis and melodramatic fear-mongering:

A government more dangerous to our liberty, than is the enemy it claims to protect us from.

Ten years ago when Olbermann was on SportsCenter and I was broadcasting minor league baseball in Hickory, North Carolina, I never could have imagined that the day would come that I'd be posting Olbermann's commentary on America's most basic constitutional principles on a blog for the ACLU of PA. But here we are, and I'd imagine that many of you never could have imagined that we would be where we are today, defending the mere existence of the Constitution.

Andy in the HBG

Bush signs "Torture and Throw Them into a Black Hole" Act

"This is how liberty dies -- with thunderous applause." --Senator Amidala (Natalie Portman), Star Wars: Episode III

Yesterday President Bush signed the un-American military commission bill, and the reactions are rolling in. From ACLU Executive Director Anthony Romero:

With his signature, President Bush enacts a law that is both unconstitutional and un-American. This president will be remembered as the one who undercut the hallmark of habeas in the name of the war on terror. Nothing separates America more from our enemies than our commitment to fairness and the rule of law, but the bill signed today is an historic break because it turns Guantanamo Bay and other U.S. facilities into legal no-man's-lands.

The president can now - with the approval of Congress - indefinitely hold people without charge, take away protections against horrific abuse, put people on trial based on hearsay evidence, authorize trials that can sentence people to death based on testimony literally beaten out of witnesses, and slam shut the courthouse door for habeas petitions. Nothing could be further from the American values we all hold in our hearts than the Military Commissions Act.

Meanwhile, this was in my inbox this morning from The Shalom Center:

In Philadelphia on September 18, 1789, a Mrs. Powel anxiously stood outside the Constitutional Convention. As Benjamin Franklin emerged from the last session, she asked him: "Well Doctor, what have we got, a republic or a monarchy?"

"A republic -- if you can keep it," said Franklin.

In Philadelphia today, October 17, 2006, in a cold and driving rain, on 24 hours notice, at noon on a workday, 44 people came to the Federal courthouse to mourn the signing of the Act to Legalize Torture and Suspend Habeas Corpus. We don't know yet whether it is also the Act to Suspend the Republic. It certainly puts the tools to do so in the hands of any President who chooses to use them.

Andy in Harrisburg

2006 National Member Conference: Just like being there...

...without the opportunity to salute Justice Scalia or dance with Tucker Carlson.

Be sure to check out the ACLU's webcasts of the 2006 Membership Conference, which is going on right now in D.C.

Andy in H-burg

Op-ed roll call

Here are several recent op-eds of note:

Philadelphia Daily News, Deborah Leavy: Arlen the Chameleon

What's tragic is that a man like Arlen Specter, smart enough to know better, with more power than he has ever had, seems to be so intent on keeping his job as chairman of the Judiciary Committee that he has forgotten to consider his legacy.

Sadly, it will be that he let the Constitution be torn to shreds.

Pittsburgh Post-Gazette, Tony Norman: When government snoops, all groups should be afraid

Americans of all political persuasions should be appalled that nonviolent citizens' groups are being monitored. Intolerance toward people of conscience is an indicator of the government's attitude toward the rest of us.

NY Times, Bob Herbert (subscription required): Why aren't we shocked?

In the widespread coverage that followed these crimes, very little was made of the fact that only girls were targeted. Imagine if a gunman had gone into a school, separated the kids up on the basis of race or religion, and then shot only the black kids. Or only the white kids. Or only the Jews.

There would have been thunderous outrage. The country would have first recoiled in horror, and then mobilized in an effort to eradicate that kind of murderous bigotry. There would have been calls for action and reflection. And the attack would have been seen for what it really was: a hate crime.

None of that occurred because these were just girls, and we have become so accustomed to living in a society saturated with misogyny that violence against females is more or less to be expected. Stories about the rape, murder and mutilation of women and girls are staples of the news, as familiar to us as weather forecasts. The startling aspect of the Pennsylvania attack was that this terrible thing happened at a school in Amish country, not that it happened to girls.

Usually when women's rights are referenced here at SF, it is in relation to reproductive freedom but fighting for gender equality is much broader. I would encourage you to check out national's Women's Rights Project as well as The ACLU Freedom Files episode on women's rights.

Andy in the HBG

A true American hero

Standing up for the rule of law can be a dangerous things these days. Earlier this week it was reported that Lt. Commander Charles Swift was passed over for a promotion in the Navy, and will now have to leave the service. Swift is a Judge Advocate General Corps (JAG) lawyer who won a landmark Supreme Court case this past June. The prestigious National Law Journal ranked Swift among the nation's top 100 lawyers.

With this kind of success, why was he denied a promotion? Because his client was Guantanamo detainee Salim Hamdan, and Swift had argued that President Bush's military commissions were unconstitutional and in violation of international law. Because of his zealous representation of his client, because he believes so strongly in his oath to defend the Constitution and the rule of law, he is losing the military career he loves deeply.

Lt. Commander Swift and the four other JAG Corps lawyers who worked on cases involving the Guantanamo Bay detainees are truly remarkable. They resisted the military's orders that they could only negotiate guilty pleas for their clients. Instead, they fought passionately in court and in the media for the right of their clients to have fair trials.

Swift's spoke eloquently on Hardball in June in response to those who say that these detainees are terrorists who don't deserve due process:

It's not whether they deserve it or not. It's how we conduct ourselves. It has to do where if we say that our opponent can cause us not to follow the rules anymore, then we've lost who we are. We're the good guys. We're the guys who follow the rule and the people we fight are the bad guys and we show that every day when we follow the rules, regardless of what they do. It's what sets us apart. It's what makes us great and in my mind, it's what makes us undefeatable, ultimately.

It's a shame that the Navy hasn't recognized that Lt. Commander Swift is one of the good guys.

Sara in Philly

Plan B Coming to a Pharmacy Near You!

On Friday, Amy (our Duvall Project intern) and I had the pleasure of attending an annual conference in NYC that brings together all the experts and advocates involved in increasing women's access to emergency contraception. Barr Laboratories/Duramed, the maker of emergency contraceptive Plan B, was even there to explain how exactly this medication will be made available in pharmacies as an over-the-counter product.

You may wonder, how on earth can these people talk about emergency contraception ALL DAY? Well, we did. And, we still have so much more to discuss, like how to address additional barriers to Plan B that may come up once Plan B is available over-the-counter (i.e. behind-the-counter) for individuals 18 and older. While there's so much to cover and I'm sure you all are as captivated with the topic of EC as I am, I thought I'd share some of what we talked about. I'm a fan of lists, so here we go:

1. Plan B is expected to be available in pharmacies by mid-November! If you are over 18 years old, you can buy it as long as you have a "government-issued" I.D. You must go to the pharmacy counter to ask for it and be prepared to pay between $30-50. This price may vary in each individual pharmacy or pharmacy chain. Young women under age 18 will still require a prescription to purchase Plan B. It is unclear, at this point, how much this unnecessary, unscientifically-based age restriction will affect a minors' ability to access EC.

2. It will be up to each state to determine whether or not their Medicaid program will continue to cover this "dual label" medication. This may greatly impact low-income women who cannot afford the hefty price for this medication out-of-pocket. As of 2005, Pennsylvania's Medicaid program only covered EC in cases of rape or incest. So, there may not be such a great change in this state--EC was and probably will still be inaccessible to low-income women unless they seek it out at a family planning clinic.

3. States may also try to impose their own regulations on Plan B, disregarding the FDA's recent decision for Plan B and requiring a prescription for all women (again). Plan B's availablity would vary from state to state. If this type of action occurred in Pennsylvania, women in New Jersey or Ohio might be able to buy EC over-the-counter but you couldn't.

It will be very interesting to see how all this unfolds. Advocates are working to anticipate and address these potential barriers and work with pharmacists to ensure that they are getting the education and support they need to make Plan B available to consumers.

Check out a newly improved website on EC and how to get it at not-2-late.com. One important thing to remember about EC is that it's only effective if you use it!

Julie in Philly

Jumping on - and off - the bandwagon

In a now unimaginative move, Bridgeport, PA - a little town of less than 5,000 residents (just under 90% white) next to Norristown in Montgomery County - recently passed a Hazleton-style anti-immigrant ordinance. It is ordained that English is the official common language within the .66 square mile area of the borough. And, as a business owner, you could be penalized for "aiding and abetting" undocumented immigrants through the sale of goods or services. Is this appealing to folks who are busy running businesses - playing the immigration cop of the community?

A few business folks a few miles to the north have suggested a different plan. With a proposed anti-immigrant ordinance rearing its head in Allentown, the local Hispanic Chamber of Commerce has suggested an ordinance that would declare the City of Allentown a "sanctuary city" that, among other things, "affirms the basic human rights and dignity of every human being." While sanctuary laws have seen some hot debate, it was refreshing to see a proposed alternative to the recent rash of anti-immigrant municipal activity.


Jess in Philly

Another signing statement rears its head

There are probably a few riders on the R8 train this morning wondering about the crazy girl muttering under her breath in disgust as she read the newspaper (my apologies to the poor guy in the trench coat who had to sit next to me, by the way. Although I suspect the regular riders are used to this behavior by now). The headline on the article that prompted my reaction? "Bush asserts power to edit privacy files; He reserved the right to alter data on Homeland Security’s activities." The law that Congress passed stated, according to the article, that "no one but the privacy officer could alter, delay or prohibit the mandatory annual report on Homeland Security Department activities that affect privacy, including complaints."

But Bush, in one of those now-infamous signing statements, said that he would interpret that section "in a manner consistent with the president's constitutional authority to supervise the unitary executive branch."

The position of Chief Privacy Officer (CPO) of the Dept. of Homeland Security is already a weak one. It was created in 2002 to serve as a watchdog over the agency to ensure that privacy was protected in the face of various anti-terror surveillance programs. However, they didn't give the officer subpoena power. She or he is essentially limited to begging for information.

Nonetheless, the president found it necessary to make sure he could serve as a filter between the CPO and Congress – despite the fact that Congress explicitly included in the law the requirement that no one aside from the CPO had the authority to edit the annual report on privacy.

Will Congress stand up to the president's blatant attempt to usurp its power? Sadly, I doubt it.

Sara in Philly

Mixed messages

While Attorney General Alberto Gonzales is advocating limits to judicial independence, the chair of the Senate Judiciary Committee, our own Sen. Arlen Specter, seems to be moving in the opposite direction.

On the recent passage of the detainee legislation, quoted in the Philadelphia Inquirer:

"The Constitution expressly says you can't suspend habeas corpus unless you have an invasion or a rebellion," Specter said.

"I did my best to get Congress to do the job, and when I couldn't get sufficient votes, the next alternative is the courts," he continued. "This is not going to stop somebody from filing a petition for writ of habeas corpus. They are going to file it. I think the District Court may disregard the statute and go ahead and hear it."

Read: Congress can't be trusted to pass decent legislation, so let's leave it to the courts to correct our mistakes.

Looks like Specter's keeping the job market open for "activist judges." I'm all in favor of judicial independence. But how can we trust Congress to hold the administration accountable for its abuses of power if they won't hold themselves accountable for enacting legislation that passes constitututional muster?


Jess in Philly

Gonzo tells courts to step off

These people know no bounds.

Attorney General Alberto Gonzales, who is defending President Bush's anti-terrorism tactics in multiple court battles, said Friday that federal judges should not substitute their personal views for the president's judgments in wartime.

Translation: "We know what we're doing is unconstitutional and un-American, and the last thing we want is to have the courts giving it close scrutiny. Congress isn't bothering to scrutinize what we're doing, so why should the courts?"

After seeing this, I went searching for the articles about a conference on judicial independence held last Saturday by former SCOTUS justice Sandra Day O'Connor and found this editorial from the Macon Telegraph:

Any American can probably cite some Supreme Court decision - whether handed down by a conservative or liberal majority - that outraged his or her sense of morality, order or political fitness. Some would refer to Roe v. Wade, others to the decision in 2000 which in effect handed the presidency to George W. Bush. There is always something not to like.

But to hate the judge and pull down the independent system he or she represents? Ours, after all, as O'Connor says, has been and must continue to be "a nation of laws, not men - or even women."

Far better to pray for the judges - and defend their independence. That's the American way.

On an unrelated topic, I completely agree with Gonzo on this:

Gonzales also said he thought more states should move away from having judges stand in partisan elections to keep their seats. Gonzales himself as a Texas Supreme Court justice "had to raise enough money to run print ads and place television spots around the state in order to retain my seat."

(FYI, my agreement with Gonzales on that issue is a personal opinion and not necessarily the view of the ACLU.)

Andy in the HBG