Norman Dorsen is leaving the presidency of the American Civil Liberties Union, and that's too bad. Dorsen -- who assisted Joseph Welch during the Army-McCarthy hearings and clerked for Justice John Harlan -- is a classic civil libertarian. He does not dilute -- however seductive the reasons -- the Bill of Rights and the 14th Amendment.
Dorsen knows that no civil liberties battle is ever won. There will always be hostile forces ready to renew the war. All the more reason for the ACLU not to do itself in.
One of the candidates for the succession is a strong protector of the First Amendment. For instance, in the current civil war within the ACLU over whether colleges should institute codes punishing certain offensive speech, this candidate has emphasized that the way to handle racist and sexist speech is to expose and debate it -- not suppress it. Taking the opposing view are all three California affiliates of the ACLU.
ACLU friends of law professor Nadine Strossen, a candidate to succeed Dorsen, have been cautioning her that she may be ruining her chances for the presidency by "sticking her neck out too far for the First Amendment." (It is increasingly understandable that some ACLU members around the country have been wondering if it isn't time to form a civil liberties caucus within the ACLU.)
That would also be a good idea in many colleges. For instance, the spirit of the First Amendment has long been used to defend academic freedom at public and private centers of higher learning. At Carleton College in Minnesota -- a small, well-regarded place of free inquiry until recently -- some professors stopped giving certain courses in the last academic year. There were complaints and threats from students because of the content of the courses, which included offerings in race relations and women's rights.
The courses were withdrawn because, another professor told me, "there have beenstrong warnings that certain books, if used in a course, would reveal the professor's racism. And that certain books, if not used, would reveal the professor's racism."
At a faculty meeting, one of the professors who had canceled his course, complained, "We don't have academic freedom here anymore."
"The hell we don't," said a colleague. "Did the dean prevent you from giving that course? Did anybody in the administration say you couldn't give it?"
The timid professor had handed over his academic freedom to those he was supposed to teach -- a prime example of the hecklers' veto.
Or as a professor at Carleton has told the faculty, if the frightened professors had stood firm, they would have shown the students what academic freedom is -- a lesson that ought to be included in anyone's college eduction.
Meanwhile, a lesson in the First Amendment by the chief justice of the United States should not be ignored, even when he speaks away from the court. Reviewing the court's recent term -- before the Fourth Circuit's conference at the Greenbrier -- William Rehnquist said that most people have "nothing to say on public questions and have no desire to get up in Hyde Park to thump a tub."
So, he explained, "the First Amendment really protects a minority right." And, as Tony Mauro reported in Legal Times, the chief justice added that the First Amendment gets so much attention because the minority that is so attached to it consists mainly of the news media, judges and lawyers.
On the other hand, the First Amendment exists -- under continuing shot and shell -- to protect minority views. But why are the angry pleasures of public self-expression unknown to so many -- if the chief justice is correct ?
If this passion for thumping a tub is not cultivated among the young, or is summarily denied to them, they are not as likely as adults to prize what they never knew. Yet in high schools and middle schools I've visited through the years, there were some kids who felt strongly that the First Amendment belonged to them. Almost all worked on the school paper.
Then came the Hazelwood decision of 1988, which made it possible for principals who choose to take away nearly all First Amendment rights, including journalists' rights, from all students in public schools. Since then, in some states and cities, Hazelwood has been bypassed through a new state law or by a principal who cannot abide a caged First Amendment. But in much of the country, Hazelwood has made the First Amendment obsolete for students.
The chief justice was among the majority in the Hazelwood decision.