Matters of Principle

In the early days of the ACLU, the California branches helped maintain the organization’s radicalism as the national organization became more and more mainstream.

By Judy Kutulas
July 30, 2019

The novelist Upton Sinclair’s come-to-Jesus moment on civil liberties came during a strike in 1923 by longshoremen at the San Pedro Harbor in Los Angeles. Outraged that the Los Angeles police kept breaking up strikers’ outdoor meetings and throwing them in overcrowded jails, often on trumped-up charges, the 44-year-old writer hoped to use his stature as a public intellectual to protect the strikers’ free speech rights.

On May 15, 1923, Sinclair started at the mayor’s office and then proceeded to the office of the chief of police, Louis D. Oaks, seeking reassurances from both men that he would be allowed to read from the Bill of Rights on Liberty Hill, a piece of private property overlooking the waterfront where some strikers had been meeting with the consent of the owner. Even though Mayor George E. Cryer of Los Angeles had already assured Sinclair and what Oaks called his fellow “Pasadena millionaires” that they’d be allowed to meet provided they did not “incite disorder,” Oaks threatened them with arrest, jail, and “no bail” if they tried it. Sinclair hoped for a technical arrest that would facilitate a test case. Oaks would not oblige him, leaving Sinclair and company no other choice but to march up Liberty Hill and begin reading the Bill of Rights. Sinclair was partway through the First Amendment when he was arrested. 

Sinclair likened what happened next to an “old-style . . . melodrama.” He and the other speakers were stuffed into a police car and driven around for quite some time, ostensibly to evade the press, before finally ending up at the jail in nearby Wilmington. There the local police captain told them they had “forfeit[ed] your constitutional rights” by “encouraging . . . revolution,” a claim he backed up by denying them access to their attorneys. They spent the night there, Sinclair avoiding the lice-ridden cot in his cell by sleeping on the cold, hard floor. 

By the time they were transferred to the Los Angeles County Jail, police court had conveniently just closed, prolonging their stay. In the end, his “unpleasant” experience — as his friend, the poet George Sterling, put it — and the fact that the district attorney dismissed the case against him persuaded Sinclair that he could better serve the cause of civil liberties by financing the launch of the ACLU’s first affiliate, the Southern California Civil Liberties Union. Like its champion, the organization Sinclair helped to fund was fierce, determined, and attuned to local civil liberties matters. It was also imbued with a distinctively California ethos, independent and, at times, improvisational in ways that made some of the national ACLU’s first leaders uncomfortable. 

‘Paddling Our Own Canoe’

Thanks to Sinclair and the money he donated to hire its first director, the Southern California affiliate flourished immediately. In 1926, Austin Lewis of San Francisco briefly formed a northern California affiliate there to work with the Southern California group for the repeal of the state’s criminal syndicalism law. Although that group didn’t last, Lewis continued to muster San Franciscans as needed, once lecturing ACLU Executive Director Roger Baldwin that his interference in matters best left to Californians “had worked enormous harm.” 

That kind of confidence made the Easterners who ran the national ACLU pay attention, while the Californians’ effective approach to local civil liberties matters forced the national leadership to be more accommodating, perhaps, than they wanted to be. We forget now 100 years out that the early ACLU was an improvisation, shaped only by its founders’ commitment to individual civil liberties. Those in the West helped form a more perfect national American Civil Liberties Union. 

Throughout the 1920s, California’s civil libertarians, as one local leader noted, were happy “paddling our own canoe,” building a local organization at once capable and invisible outside the state. That changed in the 1930s. The Depression raised the ACLU’s profile and expanded its workload, which changed the very loose relationship between Los Angeles and New York. 

ACLU on the Bay

Meanwhile, in 1934, Austin Lewis successfully mustered the Northern California affiliate on a more permanent basis. Like the Southern California affiliate, it seemed potentially mutinous and costly once Baldwin started to pay attention. Activists in both California groups tended to skip the “formalities” of checking in with the national organization before acting, naively assuming the New York office could and would cover their expenses.

When Gallagher’s law partner and fellow Southern California ACLU attorney, A.L. Wirin, telegrammed Baldwin from New Mexico saying that he was prepared to open a satellite office and could he please send money, Baldwin curtly rejected the idea.

Read the telegrams Roger Baldwin sent to the Attorney General and Clinton Taft discussing Wirin's kidnapping

For Baldwin, at least Besig wasn’t a Communist, which wasn’t true where the Southern Californians were concerned. In several instances, including in the Stromberg case, the Southern California branch partnered with the Communists’ International Labor Defense. Gallagher was likely a party member. Initially, nobody cared. As the New York intellectual community divided into pro and anti-Communist factions, though, ACLU board meetings no longer had that comfortable sense of shared endeavor and colleagues who saw eye-to-eye. Californians living in a different milieu might have been aware of the emergence of liberal anti-communism, but they paid little attention to it.

Eventually, however, they were sucked into the internal conflict. In February 1940, the national board narrowly passed a resolution declaring it “inappropriate” for anyone in a leadership position in the ACLU to belong to a “totalitarian” organization and removed from its ranks its one public communist, Elizabeth Gurley Flynn. Some unhappy board members contacted the affiliates, confident of at least stirring up some trouble. 

And they did. 

Both California affiliates led an effort to get the resolution rescinded, outraged that a “tiny New York group” got to determine a policy with such potentially far-reaching consequences. Baldwin’s assurances “that policies are pretty democratically determined by a board of 35 members meeting weekly in New York” failed to assuage them. 

Arrangements between affiliates and the national organization had not been very well established. Until that point, most disputes involved money the affiliates wanted from the national organization and the handling of local matters. As new people came on to the national board and the times and issues changed, the board proceeded more cautiously, trying to forge compromises and establish policies. The branches felt excluded, but bound by those decisions. In 1941, Baldwin and the board finally regularized affiliate policies. Local groups were to handle local issues and could “express their view[s] . . . without legal force” on national ones.

Read the 1941 ACLU Affiliates Resolution

America Goes McCarthyite

The tension between the independent and more politically radical California affiliates and the national ACLU, as well as their demand for a greater voice in national policy, remained evident as America descended into the McCarthy era. In response, Baldwin promised to “consult” with them in the future before establishing policy.

But was that promise sincere? Most California activists doubted it.

The post-war board had more anti-communists on it, who made liberals uneasy about defining communism as a threat to American democracy, especially given the climate of the times. The late 1940s were a moment of growing anti-communism expressed as fears that the Soviet Union had infiltrated U.S. institutions and was using members of the American Communist Party as spies and instigators of revolution. A number of disillusioned radicals sat on the ACLU board, angry, uncompromising, and absolutely determined to stop communists from using free speech claims to advance their totalitarian ideals. 

The anti-communists resisted compromises while national board liberals struggled to keep the organization both on course and uncompromised in any witch hunt. Since neither side trusted the other and the board was pretty evenly split, the most logical way forward seemed to create policy statements that spelled out the ACLU’s position on matters like loyalty programs for government employees, including teachers. The national staff, however, somehow failed to consult the affiliates before releasing a much-debated policy statement on loyalty investigations. 

Besig thundered his outrage, both over the statement and the process. Perhaps channeling his inner Upton Sinclair, A.A. Heist, the new executive director of the Southern California affiliate, decided in 1948 to take the bull by the horns and challenge the national ACLU to “change our whole set-up.” 

Read the ACLU Statement on Loyalty Tests For Federal Employment from April 1947

Baldwin dismissed that idea as unthinkable, but Heist and Besig reached out to their counterparts across the country. Affiliate representatives arrived at the 1949 ACLU convention ready for a fight. Once again the board stonewalled them with the promise of “an effective voice,” yet what they actually got — more promises for consultation — did “not meet . . . the need for effective representation.”

letter FROM A.A. Heist to ACLU field director George Rundquist from May 1950

Which leads us to the events of 1953-1954, perhaps the peak of McCarthyism nationally. After some desperate anti-communist board members succeeded in barely passing three anti-communist policy statements, affiliates found themselves in a position to influence the outcome of something. Yet there were disputed vote tallies regarding the policy statements. A “struggle for the soul of the ACLU” ensued, historian Samuel Walker suggests, with months of arguments, measures, counter-measures, meetings, and, finally, resolution.