Another in an ongoing series where we ask ACLU friends and volunteers: there are many reasons to support the ACLU--what's your reason? This week we hear from one of our excellent summer interns, Ilan Acherman.
But a Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost forever. -- John Adams, letter to Abigail Adams, July 17, 1775
I have always been a proud civil libertarian. Whether I was born with such a mindset or whether it was my parent’s insistence on reason rather than impulse, my civil libertarian roots are deeply grounded. I also know how easily those liberties we now hold can be lost and how easily freedoms are eroded—not by evil men, but by those too weak or too lazy to think before acting on emotion. It is easy to react, easy to be angry, easy to say it is ‘them’ against ‘us.’ But it takes strength to stop and think, just for a moment, to see past the smoke of current events and take the long view.
What happens when ‘them’ becomes ‘us,’ as has happened so many times in the past? What happens when fear has led people to sign away their freedom to the detriment of entire continents? Every generation must face these questions, and in light of history as it has unfolded this past decade, it hinges on this generation to make the choices others have handled so clumsily.
The American Civil Liberties Union has been a pillar, a constant reminder of the meaning of Independence. The quote above is from John Adams, one of our country’s founders and one of the first true believers in the cause for liberty. Although Adams was one of the leading voices of opposition against the British, he was also willing to defend British soldiers in a court of law when nobody else would. Even before the Bill of Rights was created, Adams recognized the importance of a fair and consistent government that can rise above popular passions. It is this moral consistency, the will to do what is right even when it may offend personal sensibilities, that lives on today in the ACLU.
But the founders were wrong about one thing: our freedoms and our rights, self evident as they may be, are most definitely alienable. Infringements on individual liberties occur today as they have in the past. It is up to all of us, and perhaps especially those of us working in the law, to ensure that these infringements do not stand. The ACLU, from its inception, has worked to make sure that the fears of the majority do not curtail the liberties we all cherish. I have always been drawn to the work done by the ACLU, and as an intern I am able to see firsthand the consistent effort needed to ensure that our freedoms stand strong. I hope to continue this work well into the future, and by interning with the ACLU, I believe I am getting good start on that future.
Ilan Acherman is a 2010 summer legal intern at the ACLU of Nevada's Reno office and a student at the University of Nevada, Las Vegas' Boyd School of Law.
Hey readers! We're back with big news this week in one of our long-running ACLU of Nevada cases, Sacco v. City of Las Vegas. Those of you who have been following us for a while will remember this one--it's all about feeding the homeless in public parks. Norhtern Coordinator Lee Rowland has more:
The ACLU of Nevada is pleased to announce that our nearly five-year legal battle with the City of Las Vegas over parks appears to be nearing an end. At the heart of this case is a debate about homelessness and the place of private charity in our community. It is our hope and belief that the end of this case, Sacco v. Las Vegas, means two things: that our clients may continue to engage in protected charitable activism in public parks, and that the public parks remain just that: public, open to all regardless of whether they have a steady income, or a home.
In 2006, the City of Las Vegas became locked in a bizarre war with homeless advocates, and decided that no one should be engaging in charity in the public parks. The City began ticketing good Samaritans who shared food with more than 24 people, under the belief that giving food to people already in the public park violated statutes requiring permits for gatherings of 25 or more people. When the ACLU of Nevada took issue with this interpretation of permit laws, the City took a more direct approach: it explicitly outlawed the sharing of food with anyone who looked poor. Like other advocates, our client Gail Sacco believed that a city mandate did not trump her duty to her God and her values: she simply began sharing her free vegetarian food on public streets and sidewalks abutting the parks.
Other homeless individuals were being kicked out of parks under a questionable trespass policy called “86”ing, where Park Marshals essentially took photographs of certain people – almost always homeless people – who were then kicked out of the public parks on pain of a trespass misdemeanor if they returned. The 86ing process had no paperwork, no right to appeal, and no due process whatsoever.
The ACLU of Nevada got involved because we believed the City’s actions were essentially an unconstitutional one-two punch against the homeless and those advocating on their behalf. We firmly believed both that our clients had a right to engage in constitutionally protected charitable activity, and that everyone, regardless of income, has a right to enjoy their public park space. Since the City ‘doubled down” on its anti-charity posture by passing the “no feeding the poor” law, we had little choice but to go to federal court. We challenged each of these practices – the “no feeding the poor” law, the permit process itself and its application to charitable activism, and the lack of due process in the 86ing policy. While the “no feeding the poor” law was immediately struck down by the court, our clients and the City remained at odds as to the other restrictions on the use of public parks.
Fortunately, the federal Ninth Circuit Court of Appeals, after hearing the parties’ oral arguments, noted that the City and the plaintiffs were not so far apart on the law, and asked us all to participate in mediation to resolve our disputes. This week, we publicly released the result of that mediation: a signed settlement where the City, in exchange for our dropping the case, has agreed to pass certain modifications to the permitting and 86ing systems. Hopefully, the Las Vegas City Council will agree to these changes, we can all stay out of court, and the public parks of Las Vegas will go back to serving their purpose: a refuge for all members of the public.
He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself. --Thomas Paine (1737-1809)
The ACLU of Nevada defends the constitutional rights of everyone – and that frequently means we have very controversial clients. Of course, there’s a reason for this: when our government strains the bounds of the Constitution, it does so almost without exception against groups or individuals perceived as powerless or unpopular.
But you and I know that civil rights and liberties aren’t tied to a popularity contest. Everyone’s rights must be protected because everyone’s rights are interconnected. When we represent victims of government abuse and win, that victory is important because it establishes not just a particular individual’s right, but rather a limit on government power.
That’s why a recent U.S. Supreme Court decision is so disturbing. Last week, the Court decided that the federal government can civilly commit sex offenders after they have completed their criminal sentences. You might think: so what? But the reasoning used by the Court to arrive at this decision is worth noting, because they determined that the federal government has “broad authority” under the Constitution’s ‘Necessary and Proper’ clause.
What is that, you might ask? Historically, the power of the federal government to pass laws has been limited to the specific, enumerated powers laid out in the Constitution, and anything that’s ‘necessary and proper’ to carry them out. In this decision, though, the Court ruled that an action by the government is kosher simply as long as it is “rationally related” to the implementation of a power granted by the Constitution.
“Rationally related”? Sounds pretty vague to us—and therein lies the problem. With this decision, the Court has drastically broadened the government’s ability to pass laws on any number of issues.
The fact that the case involved sex offenders meant there was little opposition or controversy in reaction to the decision – and may, of course, have shaped the justices’ attitudes toward the case. It’s hard for many people to drum up empathy for criminal defendants in general – let alone those branded as sex offenders. But we should all have respect for the underlying constitutional rights, and an understanding of the impact that this sex offender case has on our own rights. When a Court grants the government new powers, the government can use those powers not only over those groups that are unpopular at the moment, but over all of us.
Some day this precedent will be used to approve another federal action – one that affects an issue you care about. This decision can be used to defend, say, the indefinite detention of terrorism suspects without trial, or it could be cited for the federal government’s authority to engage in civil law generally reserved to the states.
As civil libertarians, we must be willing to stand up and defend threats to our rights and freedoms, and to speak out when government oversteps its role. Unfortunately, this Supreme Court case has made that role larger, and potentially more intrusive.
Last week, a vice principal at a California high school disciplined several students for wearing American flag t-shirts to school. Yes, you read that right. The reason that this symbol of our great nation was transformed into a reason for detention? The students wearing them intended the flags to express a point of view – they wore them on the day of the school’s celebration of Cinco de Mayo, honoring many students’ Mexican heritage.
These kids intended their t-shirts to say something political: that they had a point of view that did not conform with that of the school or their classmates. In expressing this on Cinco de Mayo, their clothing took on a deeper meaning: a symbol of politics, patriotism, and dissent, therefore deserving of the First Amendment’s full protection.
Fortunately, cooler heads at the school district took immediate steps to make sure the students were not punished for wearing the colors of the USA, but the ACLU of Northern California is rightly concerned about a school culture where such censorship remains a possibility. This incident certainly calls into question how we got to such a place: how could our nation’s own flag be seen as a possible source of disruption in an American public school – a place where kids salute one every day?
This case is part of a long tradition of high school students exercising their First Amendment rights. In the 1970s several Iowa high school students, disciplined for coming to public school wearing black armbands in protest of the Vietnam War, took their free speech case all the way to the U.S. Supreme Court, which famously noted in its opinion that students “do not shed their constitutional rights at the schoolhouse gate.” The Court held that students have a First Amendment right to express themselves so long as that expression is not disruptive to the school day.
In reality, schools are a tightly regulated, sometimes sterile environment. The opportunities for non-disruptive speech are few and far between. No soapboxes in the cafeteria. No sandwich boards in crowded hallways. No political diatribes in algebra class. What’s left for a public school student who wants to retain his individuality, or express her opposition to a government policy? The free, silent ad space between their shoulders: the message-bearing t-shirt.
Unfortunately, many school officials and culture warriors have been on a mission to eradicate even this one vestige of student choice. They argue for school uniforms, based on flawed arguments about school safety, gang colors, and ‘useful’ conformity. This approach will undoubtedly lead down a slippery slope where student clothing need not be ‘disruptive’ so much as ‘potentially upsetting to someone (i.e., a teacher) in theory.’ It is not hard to see how in this environment, administrators might become the t-shirt police, and imagine disruption where none exists – even among the stars and stripes.
It is critical that we stop infringing on students’ last opportunity for truly free speech, and let them take advantage of their clothing to express themselves. And even, sometimes, make people a little uncomfortable. Democracy – especially one springing from our beloved First Amendment and its principles– is messy. We aren’t doing our young citizens any justice by pretending otherwise in school by sterilizing and scrubbing all speech.
So let us pause and give thanks for the t-shirt: the last possible refuge of free speech in the public schools, the walking student billboard, the one medium that permits students to retain – and broadcast – some sense of self and politics even in the school environment. Our student citizens deserve a protected medium of expression, and those California high schoolers should be saluted for being the standard bearers of both the U.S. Flag and the U.S. Constitution.
Lee Rowland is the ACLU of Nevada's Northern Coordinator.
Readers, we have a very special post for you this week from our friend and colleague, Jane Heenan. We're working closely with Jane and others in the LGBT community to fight for more protections for transgender people in Nevada. The surest way to be successful? Public education. Read on, and share these insights with everyone you know.
During the debate about antidiscrimination laws at the 2009 session, much ado was made about the question of which bathrooms transgender people use, and it was apparent that there is a lot of fear about “deviants” in the bathrooms. Many statistics support the lack of danger, but I thought it would be helpful to explain my own experience in using public bathrooms along the way as I transitioned from living in the social role of a man to living as a woman to clear up some of the misconceptions.
My experience was, I believe, rather typical and in the end my fears about this were much ado about nothing. Still, there were experiences that I felt harmed me, particularly those that involved law enforcement and security. I understand these experiences much more clearly now, and it is my firm belief that no one should be made to endure such struggles.
As I started my transition in the mid-1990s, I felt it was important for me to overcome my fears of getting into or causing trouble for using the bathroom. I needed to be successful in this part of my journey, in part because I had no choice – using a public bathroom is inevitable – and in part because there was something like an affirmation available to me in a public bathroom: if I could successfully use a “women’s bathroom” I could more confidently move through the world in the social role of a woman. In the beginning, there were many times I chose not to use the public bathroom because I was fearful of the possible consequences. These were times when I would be in a more crowded venue – I felt less fear when there were fewer persons around. And, so, I experimented with using the women’s bathroom in these less-crowded circumstances and mostly tried just to go in and come out as quickly as I could. I didn’t want contact because I believed this would create a greater chance for problems. Of course, I found after awhile that nothing really bad happened; no one stared at me or called me names, and as my comfort level grew, I felt less restricted in using the bathroom when I felt the need to do so regardless of how many persons were around. This was helpful in many ways for me.
The times that I found trouble were not a result of the reactions of others who were, like me, just going about their business in a public venue. My trouble with using public bathrooms was always a result of the intervention of law enforcement or private security professionals such as those found in casinos. Among other experiences, I had a police officer confront me in a crowded airport after I had come out of the women’s bathroom, asking me for identification, taking down my information in a note pad, and telling me that he was putting me on a “list of known transvestites.” He further told me that if I was ever caught by a police officer using a women’s bathroom again that I would be arrested. I was terrified by this experience and believed what he told me for some time. I also felt like I couldn’t talk to anyone about this – who would take my side against such a figure of authority? Further, it reinforced for me the belief that police officers are mostly engaged in harassing persons; I was only using the bathroom, and there was no legitimate reason for me to be treated in the way that I was.
Another experience came when I was at a casino on a weekday afternoon. I sat at a video poker machine for a short while and then got up to use the bathroom. When I came out, casino security asked me to accompany them to their offices inside the casino. Frightened and confused and not knowing what to do, I went with them. There were several security officers present as I was made to surrender my driver license (which they then photo-copied) and questioned over the next 20 minutes about what I was doing there and why I was wearing the clothes that I was wearing. I was humiliated and scared about what might happen. I didn’t know how to answer their questions – I was just trying to make honest changes in my life. Finally, I was escorted by two officers all the way to my car in the parking lot and was told that if I ever returned to this casino that I would be arrested. They watched me as I drove away, shaking and terrified that somehow something further would happen.
Of course, what happened was that I continued to empower myself and to work toward ending such unnecessary and harmful harassment. I would never put up with such treatment at this point in my journey. And I continue to believe that there is nothing wrong with persons engaging in a process of gender transition or experimentation using the public bathroom that corresponds most closely with their presentation and who they see themselves to be. The fear about bathrooms comes down to stereotyping: “those” kinds of persons are so different that they must be wanting to commit depraved acts such as sexually harming a young person in a bathroom. There was a time when the bathrooms in Nevada were segregated by skin color and those who supported such laws made similar arguments about how “those” people would attack white children. Transgender persons are just that: persons. We are a diverse group, although the vast majority of us only want to pee in peace when we are in a public setting. We fear you much more than you fear us, and our fears are much more legitimate especially since “the law” is against us. We need your support in ending or at least minimizing such fears – as lawmakers you are in a powerful position to support reconciliation and help put an end to harmful stereotypes.
Jane Heenan is a Las Vegas-based therapist and the Director of Equality Nevada Community Services, an equal-rights advocacy group.