A Lesson From the ACLU On How To Admit Mistakes

By Kathleen Peratis

Published November 05, 2004, issue of November 05, 2004.
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As we learned from this year’s presidential race, it is hard to forgive where there is no admission of error. So it was with joy and relief that I learned, October 18, that the American Civil Liberties Union finally had owned up to a whopper — the signing of a pledge, as a condition of receiving a grant from the Ford Foundation grant, not to “promote or engage in violence, terrorism or bigotry or the destruction of any state.”

The pledge arose out of a perfect storm: obsession with terrorism in general, and the 2001 debacle at the United Nations conference on racism in Durban, South Africa, in particular. In 2003, a study called “Funding Hate,” sponsored by the Jewish Telegraphic Agency and published in the Forward, revealed that some of the Palestinian NGOs responsible for the incitement in Durban had been recipients of Ford Foundation grants. A cacophony of condemnation of Ford followed, including calls for a congressional investigation and a review of Ford’s tax-exempt status.

The firestorm was intense but short lived. Ford president Susan Berresford quickly diffused it by announcing that Ford would cancel offending grants, reform its procedures and require all grantees to sign the pledge. Other foundations soon followed suit; the Rockefeller Foundation, for example, required that grantees pledge not to “directly or indirectly engage in, promote or support other organizations or individuals who engage in or promote terrorist activities.”

But if the firestorm ended at Ford, it was just beginning at the ACLU. Early this year, Anthony Romero, the ACLU’s new executive director and a former program officer at Ford, signed the Ford pledge. What’s more, he agreed to the conditions required for the ACLU’s continued participation in the Combined Federal Campaign, a program set up for government employees through which their charitable donations are deducted from their paychecks and forwarded to the charity of their choice. To remain eligible in 2004 for what amounted to $470,000 last year, Romero agreed to a new condition: the ACLU would not “knowingly employ” individuals found on a series of “watch lists” of known or suspected terrorists. Such lists, notoriously unreliable, had been condemned repeatedly by the ACLU as unconstitutional black lists.

When it came to light in July that the ACLU had signed the Ford and Combined Federal Campaign pledges, many ACLU supporters were shocked. Romero’s damage control regarding the federal campaign pledge made it worse. He said he had signed, in effect, with his fingers crossed behind his back and that he had never intended to actually check the watch lists.

Then, when ACLU President Nadine Strossen called that a “clever interpretation” of the pledge language, the shock turned to outrage. The whole fiasco became Topic One throughout the ACLU and its scores of state and local affiliates.

In the internal ACLU discourse, some defended the Ford-type pledge, but most condemned it as a “loyalty oath,” harkening back to a shameful episode in ACLU history in which member Elizabeth Gurley Flynn was thrown off the board in 1940 because she belonged to the Communist Party and because she rejected the ACLU’s own loyalty oath eschewing that era’s devil — “totalitarian dictatorship or principle.” Her posthumous reinstatement in 1976 did little to mitigate the ACLU’s shameful abandonment of principle.

While the internal ACLU controversy was raging regarding the Ford pledge, some foundations that had briefly instituted a Ford-style certification, notably the John D. and Catherine T. MacArthur Foundation and the Nathan Cummings Foundation, changed it to a simple promise to obey the law. Ford and Rockefeller have so far not followed suit. (Some, it should be noted, never gave in to terrorism-obsession at all, most notably the Open Society Institute.)

What is actually at stake here with the Ford and Rockefeller pledges? Nothing but principle. Neither foundation sought or expected the ACLU to alter its program one whit, and said so in “clarifying” letters. ACLU purists nevertheless rejected the proffered deal and invoked the interest of the ACLU’s only client: free expression itself. In the end, the choice was stark: Sign the foundations’ certifications, or forgo a considerable amount of money.

So what is the problem with pledging not to “promote” “bigotry” or “terrorism?” The problem is this: There is no clear difference between “promoting” an idea and “advocating” it. What the ACLU does is protect the rights of others — organizations and individuals — to advocate absolutely anything, no matter how odious.

The Nazis want to march in Skokie to advocate bigotry and hatred? North American Man/Boy Love Association wants to advocate sex between men and boys? Sex magazines want to demean and objectify women? The ACLU will be there to protect their right to do so. What I learned early on as a civil libertarian is that freedom for the idea you love is easy, and the ACLU does plenty of that: gay marriage, abortion clinics, medicinal marijuana, demonstration permits for everyone from the Christian right to Planned Parenthood. Freedom for the idea you absolutely hate and detest and fear is hard. Safeguarding such freedoms is what the ACLU does.

So it did on October 18th, thereby redeeming itself. The ACLU decided to reject all grants with Ford-, Rockefeller- or Combined Federal Campaign-style conditions; gave back $1.15 million to Ford, and is preparing a legal challenge to the federal campaign restrictions.

Mistake acknowledged, credit deserved. Bravo, ACLU.

Kathleen Peratis, a partner in the New York law firm Outten & Golden, was (long ago) on the legal staff of the American Civil Liberties Union.

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