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Some Rigors of Our Times


This article is an electronic version of an article originally published in Cultic Studies Journal, 1987, Volume 4, Number 1, pages 1-17. Please keep in mind that the pagination of this electronic reprint differs from that of the bound volume. This fact could affect how you enter bibliographic information in papers that you may write.

Some Rigors of Our Times: The First Amendment and Real Life and Death One ACLU Board Member Looks at Guyana, Nazis, and Pornography

Fay Stender

Abstract


The American Civil Liberties Union should rethink and widen its view of cults, Nazis, and pornography. It should abjure its purist ideological approach to the First Amendment issues raised by these phenomena because this obscures the factual base upon which the Union might restructure its position and actions. Ironically, ACLU defense of free speech in these matters actually defends the damaging consequences of cult activities, anti-Semitism, and the exploitation of women while paving the way for the transformation and vulgarization of the society we seek to protect with the First Amendment.

It is right that a certain amount of soul-searching and re-thinking should take place after the events at Jonestown, Guyana.[1] But as with Watergate, one fears that after the initial shock very little will change. What I think should change, and what I hope Guyana will prod the ACLU community into reconsidering, is the narrow view I believe we have taken of the reality behind various events and phenomena in the last decade. President Carter has cautioned against an “over-reaction” to Guyana, but I do not think we have truly had a thoughtful reaction. The President's dramatic and rather vivid comment that the Justice Department does not have a "division of history,” and therefore that no one has the responsibility to pursue a broader investigation, is consistent with the theory of a government of limited powers.[2]

But our role in the ACLU is not so limited. We do have a division of history. As Justice Frankfurter said, history has its claims.[3] In this paper, I try to look some cultural phenomena of our very recent history and at the First Amendment positions which the ACLU has taken with respect to them, in order to see if we have adequately ascertained the reality, the factual base, upon which we have structured both these positions and our subsequent actions.

During the past three years, while serving on the board of the ACLU of Northern California, my uneasy feelings about each of several issues never coalesced. I could not put together into one perception, with any common ground, my troubled feelings on certain separate problems. Although I might have become intellectually convinced, I remained intuitively unhappy over the ACLU's role and approach, and with the social consequences of our participation in the debate involving Nazis, pornography, and the Unification Church (the 'Moonies").[4] The social and cultural effects of the activities protected by the First Amendment on all three of these issues seem to me undesirable. Yet it is the First Amendment, the cultural tradition surrounding it, and the restraint it imposes upon governmental and societal suppression of dissent, which is central to the strength of our society. I propose, therefore, to look at these issues in this immediate post-Guyana period when we can see, perhaps only for a short time, with more clarity than usual because some of our usual assumptions and habitual thinking are upset by the enormity of the events at Jonestown.

It is extremely difficult for us in the ACLU to look calmly at anything which seems to diverge from a very purist First Amendment position or application. Some habit of mind comparable to Lenin's exhortation on socialist and bourgeois ideology inhibits us from asking certain questions.[5] I do not think that we belittle the First Amendment by pursuing these questions. I am not advocating any change but the following: in deciding what position to take - in a lawsuit, legislatively, in public programs, and in our own media - we should take a more careful look at the reality to which we apply First Amendment theory. In determining what the facts are, we must look more closely. It is not the First Amendment, but the “facts” we have assumed to be facts which I think brought us to the positions I want to write about here.

Because I believe that our relationship to the First Amendment is so central to why we find ourselves where we do in the ACLU, it is necessary to examine and de-mystify this relationship before getting into particular analyses. Something similar to Lenin's prescription is imbibed by most groups which are dedicated to an ideology, whether left, middle, or right/ Within the ACLU, of course, we have a very special feeling about the First Amendment because it is so precious, so much the rock and cornerstone of everything that we feel is most valuable about our way of life. It is also so precarious, and its enemies - usually of the right, or at least of the government - so oppress the fragile dissenter or struggling movement for social justice that we in the ACLU feel that we, of all people, should not grapple with complexities of interpretation but rather take something close to an absolutist stand on the commands of the First Amendment. Our voices should not be heard to question its utility, value, or sanctity.

Until recently I was of this school, as are, I think, most ACLU members. I have changed my views only to the extent that I believe our mystification of the First Amendment is not in its best service. Many recent events, culminating in the deaths in Guyana, and other phenomena about which there would not be a consensus - for example, the oppression, nay, the maiming, crippling, and occasional killing of women through the promotion of violent pornographic materials and activities, and the continuous operation of a deep social disrespect for women - are supported by the protection which the First Amendment provides. My present stay in Europe has also moved m to reexamine my position; here, the more visible expression of anti-Semitism, and the emotions to which the Nazis speak, give one a different sense of what the Nazi movement may achieve in both Europe and the United States.

While the proposition cannot be demonstrated as a scientific truth, I think that it is not an exaggeration to say that the First Amendment is our secular religion. Certainly this is true of the ACLU, and it may even be true in the country at large. One of our most bitter, harshest critics, Richard Wright, saw this clearly and expressed it in a piece written in 1940 which is prophetic also of Jonestown. The particular combination of Wright's ideas here about the role of the Bill of Rights and our culture expresses something which I think remains true nearly forty years later:

Above and beyond this there was that American part of Bigger which is the heritage of us all that part of him which we get from seeing and hearing, from school, from the hopes and dreams of our friends, that part of him which the common people of America never talk of but take for granted. Among millions of people, the deepest convictions of life are never discussed openly, they are felt, implied, hinted at tacitly and obliquely in their hopes and fears. We live by an idealism that makes us believe that the Constitution is a good document of government, that the Bill of Rights is a good legal and humane principle to safeguard our civil liberties, that every man and woman should have the opportunity to realize himself, to seek his own individual fate and goal his own peculiar and untranslatable destiny...

Early American writers, Henry James and Nathaniel Hawthorne, complained bitterly about the bleakness and flatness of the American scene. But I think that if they were alive, they would feel at home in modem America. True, we have no great church in America; our national traditions are still of such a sort that we are not wont to brag of them; we have no group acceptable to the whole of our country upholding certain humane values; we have no rich symbols, no colorful rituals. We have only a money-grubbing industrial civilization. But we do have in the Negro the embodiment of a past tragic enough to appease the spiritual hunger even of a James; and we have in the oppression of the Negro a shadow athwart our national life dense and heavy enough to satisfy even the gloomy broodings of a Hawthorne. And if Poe were alive, he would not have to invent horror; horror would invent him. (Wright, 1966, p. 24).

Many other writers and commentators have seen and felt this cultural role of the First Amendment. The point does not need further extensive citation; I believe that we in the ACLU recognize its truth even if we do not share agreement on every nuance of its implication. I think that most of us in the ACLU would acknowledge this, even with pride, and without much qualification.

ne First Amendment, then, stands for government restraint, but also for general restraint, for taste and dignity, for something like that which the Queen of England provides the English, something we can be proud of, something not sordid, vulgar, or commercial but a theme which can be embellished through the ringing words of our high priests - our Supreme Court heroes, our Learned Hands. It is our Chartres, our Don Quixote, our Odyssey and Iliad. And because there has been so little fixed in our American history about which we can feel this way, we cling to it, deify it and also use it to overcome our fears. Thus, if we are Jews, we exorcise our fears of gas ovens. If we are feminists, we thought until recently, that it was our best protection.

But the time has come, I think, to have enough faith in the ideas of the First Amendment and its validity, and in our dedication to it to look more closely at what has been happening in our society, in our culture, and at who has been using us, deluding us that we are protecting speech when, in fact, we have been defending, with the First Amendment, something else, some hideous developments which, I will try to show here, are “more” than and “other” than speech.

And whether the Justice Department does or does not, we in the ACLU have responsibilities. That is the premise of this paper, addressed to the broader ACLU community. I hope that readers who do not agree with every point, or with my analysis of the cultural role of the First Amendment, or of the ACLU, will nevertheless share with me the perception that reality has eclipsed our understanding and that we must, therefore, make deeper, more careful efforts to ascertain that reality before we act.

I have spoken of our heroes. In Lincoln, of course, our greatest hero, the conflict between his suspension of habeas corpus and his role as emancipator and healer of wounds provides a metaphor for the conflicts at issue today between the First Amendment and the ideas we detest. Had Lincoln been a person of lesser secure, certainly the result of the conflict, even while he lived, would have been far worse, as indeed it was for the South and for all of us after his assassination. The stem Lincoln is quite consistent with the lighter Lincoln of affectionate legend (see note 9, page 14 ). The point really is: look at reality and not at the label. Since so much of law is finding the right label to affix to an event (Levi, 1957), what I urge here is that we be more careful before we affix a label which immediately invokes application of the First Amendment.

First Amendment protections, and thus the striking down of prohibitions against such activities as Nazi marches and rallies, pornography, or recruitment and enslavement in cults - and lawyer advertising - result in a range of social consequences. These include, in my opinion: vulgar display; cheapening of the ideal practice of law as a profession, with further diminution of respect for lawyers and the law;[6] a fostering, through pornography, of attitudes and actions leading to the rape, torture, and maiming of women; and practices among various cults and sects which flourish in the U. S. leading to starvation and possible death (as we have just witnessed in Guyana).[7]

The results of permitting the full range of traditional First Amendment expression by the Nazis are difficult to foresee. The Nazis in the U. S. do, indeed, seem to be pathetic hoodlums, small-time failures who are very unlikely to come to “power.” Certainly, it would seem that the society which cherishes First Amendment freedoms and traditions would be most unlikely to turn to fascism. Yet, traveling through Europe, one gets a different sense of the vibrations which the Nazis may yet exploit in America. The alienation of the Jews in some of the Western countries, and the guises of respectability which anti-Semitism may wear, seem close to the surface in much of Europe. This perception may flesh out the evanescent, thin cries of the Skokie Jews, which were quite drowned out, at least on the West Coast, in the stentorian pronouncements of the ACLU and the pristine command of the First Amendment during the Skokie litigations.

To be an ardent advocate of the First Amendment over the issue of the Nazi right to march, in full regalia - uniform, swastika, other symbols, flags, with electronic amplification of messages about gas ovens and the like - is, in a macabre way, a luxury for the American Jew. Many people sit on the local and national boards of the ACLU believing that their pure ACLU-First Amendment attitudes are a triumph of democratic loyalty and rationalism over sectarian passion or paranoia. I believe that it is the duty of the ACLU to investigate the actual effects of Nazi activities on the attitudes of people, Jews and Gentiles alike, who are exposed to them. We are ignorant of these matters.

I myself must plead guilty to having overlooked the real nature of pornography, which depicts not erotica, or sexual relations and communication (eros), but torture, rape, and even the murder of women. Pornographic materials legitimate, through imagery and repetition, the perpetuation and the increase of violence against women, sanctioning it both as an attitude and a practice. My initial reaction when first approached for legal help by women working on this problem was limited severely by my belief in the absolutism of the First Amendment. I felt that the benefits of the concepts which it embodies, and the constitutional prohibition of classical clarity which it represents, outweighed the good which could be accomplished by modifying it, or by making complex distinctions among the phenomena to which it applies, or by otherwise disturbing conventional wisdom about it. I believe I had a far too simplistic view of the matter. ACLU and other First Amendment scholars must study the realities to which the principle is applied and arrive at a workable distinction between protected speech and the murderous materials circulated by large-scale crime syndicates. There is in the source of these materials, I believe, an important component which relates to a First Amendment analysis. One does not have, in such cases, the "artist," the 'person,' the single human being, fulfilling a desire to 'express' an idea; one sees instead the calculated decision by a criminal organization to produce materials which, together with the related activities of prostitution and gambling (among others), will make large profits while causing real damage to many women, either incidentally or deliberately (a complex question). The ACLU needs to reassess its entire position on pornography and work through the difficult but legitimate distinctions between pornography and erotica, and to understand the clear and present, imminent, and grave danger which these materials pose to women.

On the issue of the degree of immunity from intrusion and investigation which Moon's slave-holding institutions should receive from the First Amendment's guarantees of religious freedom, or the tragic assertion of religious freedom by the 'Moonies' themselves, I was from the beginning in an extremely small minority, with perhaps one or two other persons in the Northern California ACLU. I resisted the NC ACLU's position of defending the Unification “Church” on pure grounds of First Amendment religious freedom. I argued, quite unsuccessfully, for an empirical, clinical, factual, or at the very least, a more rigorous philosophical-legal, sophisticated inquiry into whether this organization, or fiefdom, was a religion, and whether the young adults in such groups were acting with adult “free will.”

Since I am in Europe during this period when the news of Jonestown is breaking and interpretations are being formulated, I do not know as I write whether the NC ACLU, or any other ACLU affiliate, is rethinking its position on the Moonies and other cults. It might be maintained of course, with intellectual consistency, that the adults who died in Guyana had joined a religion and decided to commit suicide for religious reasons, or reasons which would not necessitate a reassessment of the ACLU position. (But the killing of the children?) However, if 900 deaths under the circumstances described, and the startling lack of any "religious" content in Jones's own last-quoted pronouncements, jar the ACLU into a reassessment of its position on cults, so should we be jarred into a far broader inquiry. The issue here is no less than the relationship of the ACLU and its legal and intellectual positions to real life, the real world, the facts.

Is it possible to come to some understanding of why it is that at this time we are "fighting to the death” for the right of so many people to say and do things we abhor?[8]

Why is it that the First Amendment is so often used today to protect advocacy and activities which result in death, violence, enslavement, near starvation, and vulgarization (a word which really does not do justice to the pornographic materials under consideration here) of our media and our professions (as in the case of lawyer and physician advertising)? We seem to be looking the other way as enemies of our civilization, as we have known it, advance from an unsuspected direction. As at Singapore on the eve of the Japanese invasion of World War U, we are dancing, believing we are safe. Advancing in some cases under the protection urged by us and afforded by the First Amendment forces - and “forces” are people, about whom we need to ask who, how, and why - are transforming our society into something more hideous and violent than before.

Commenting on Guyana in the November 28, 1978 editorial “Sadness & Revulsion,” The Washington Post says:

... we are trying to identify the bodies, and to identify them in terms that make sense. What we have left, for better or worse, is civilization, the same civilization out of which Mr. Jones led his flock. Now we survive, to learn and clean up.

Why do the abstractions, and the pure, clean command of the First Amendment, and the application of its case law, seem unequal to the reality of Guyana, Moon, the Nazi upsurge (in America and abroad), the ferocity of the attack on women in pornography (an echo, and not unrelated to the strength of the backlash against feminism in much more respectable quarters), and the breakdown - different in dimension than death and rape, but still important - of restraint, dignity, and taste in the legal profession (symbolized and manifested by advertising)?

Does any common thread tie these issues and developments together? How in fact can we identify the “bodies ... in terms that make sense?” Has our analysis been equal to the reality which these developments have brought to our lives? Here are some of the common themes I see.

Firstly, in every case, the manipulators - the Nazis, Moon, Jones, the pornographers - attempt to use an abstraction, a concept, a traditional protection of speech or worship, to do something else. The “something else” is, of course, partly the expression of an idea as classically conceived in the First Amendment. But the whole of the activity for which they seek protection is much more than, much different from, the exercise of free speech or assembly, or freedom to worship, and often inimical to these freedoms.

The Nazis seek now, through marches, to terrorize and humiliate Jews and others whom they want ultimately to kill. Jones and Moon seek to create empires of slaves which will bring power, glory, total authority, and wealth to themselves as they exploit the poverty, emptiness, and emotional and spiritual needs of both young and old.

The pornographers seek to, and do, make money by exploiting their customers' fear and hatred of women, and they succeed, while at the same time stimulating the subjugation and not infrequent physical maiming of women. One wonders if this treatment of women is an evil that Congress has a right (were it to become educated to the reality) to prevent? It is obviously not sufficient to limit First Amendment protection to written materials because the author seeks to market them commercially. The question of whether pornographers intentionally seek to maim and murder women is too complex for discussion here. I phrase the issue so simply here in order to raise in stark form the connection between cause, effect, motive, and intention. A better approach to the pornography problem than that we have thus far taken seems to me to include a variety of coordinated techniques: zoning, commercial pressure through direct action (picketing, etc.), an investigation of whether there is 'an author,' development of workable distinctions between pornography and erotica, and training of prosecutors and expert witnesses. In only some of these roles will the ACLU be properly involved, but we must be more sophisticated about the evil we are fighting here and consider that certain phenomena may be something more and something else than free speech.

Speaking as a woman, I have come to feel that some of the knee-jerk ACLU thinking, including my own previous views, prevents us from truly understanding women's oppression. The subject of the oppression of women and the internalization of the attitudes and practices which maintain that oppression is, of course, far too broad to delineate even minimally here. But the habit of mind which defends pornography on a lofty First Amendment basis contributes substantially to that oppression. The organization which defends the major pornography distributors is called "The First Amendment Lawyers.’ I am unaware of any particular objection by prominent scholars of the Constitution to this perversion. Surely we can learn something from the fact that our most important, sacred if you will, historical and living legacy is now preempted quite successfully by purveyors of this destructive, let alone disgusting, materials.[9]

We are more fearful of dealing creatively but critically with the First Amendment - and of getting into treacherous, murky, but ultimately penetrable depths of "what is religion," "what is human will,’ and what is "free exercise’ of religion - than we are of dealing with the exploitation of the thousands of people, some old, but mostly young. These people have the needs that Moon, Jones, and others "fulfill” because we and society have failed them.

The clearest lesson of Guyana is that the degree of coercion, irrationality, despair, isolation, regimentation, and enslavement was greater than we had emotionally or intellectually considered. Unless we are to take the position that suicide is a protected free exercise of religion, and that nothing in the Guyana death situation requires any new analysis at all, we can learn from it that the concomitants and circumstances we usually, and I think reasonably, associate with the exercise of free will were not there in Guyana and are not there in the Moon organization and similar groups.

Another common aspect of the several phenomena discussed here is the general obscurity, low visibility, and socio-political unimportance of most of the people affected by them. With some exceptions (particularly the middle-class young people involved with the Moonies, whose socially prominent families attempted to have conservators appointed for them), the persons whose psyches, lives, ordinary liberties, and personal security (in the cases of women) are being threatened by perpetrators seeking First Amendment protection are not prominent, do not have clout, and are not organized. Thus, their agonies are for the most part invisible to us because we are not tuned in to their fears and sufferings. We can call it “speech" or “religion” while they are semi-starving.

The women on the ACLU boards are not usually among those who receive the physical abuse characteristic among some female populations in the United States. And although Jews may empathize with the concentration camp survivors in Skokie, several factors operate to make that experience imaginatively remote from Jewish ACLU board members: the relative security of the assimilated American Jew, the desire to be a part of the American body politic and feel secure, and a certain amount of repressed Jewish anti-Semitism. There also may be a hesitancy to abandon leadership roles in an organization in which voluntary dedication and service can bring personal and social rewards. certainly believe that this last factor is unconscious in the many sincere Jewish members of the ACLU who ardently espouse the current ACLU position on Nazis. My own position on the Nazis is that the ACLU should have taken the legal position it did, but accompanied it with far more publicity and education on the evils that the Nazis represents and the reasons for the ACLU position, among Jewish, Gentile, and mixed communities. At least as many resources were expended on the Nazis' legal defense should have gone into the corresponding educational and publicity effort At the same time, more careful control of the ACLU's own media could have kept the issue less explosive and prevented the Nazis from using the ACLU in the way they did. Simply downplaying the ACLU position in its own media would have been beneficial. The ACLU has a certain fatal obsession with Nazi cases, as though they “prove” and "certify” its purity. A priority decision could also have been made, assigning either a certain percentage or dollar limit to expenses for Nazi cases. I have heard it claimed that the ACLU turns down “no case” for lack of resources, but this is clearly not so. Allocation of resources is indeed an issue.

I think it is fair to say that the actual feelings of the Jews of Skokie were not imaginatively real, and that the Jews of Skokie were not important people, to the ACLU boards which authorized the Nazi legal case actions. The Skokie Jews' agonies and fears were not really visible or strongly shared as fears.

The interplay of law and culture is not an easy one for those of us trained only as lawyers, or for non-lawyer members of the ACLU, to grasp. But although we do not and cannot understand the interplay in all its exhaustive complexity, I think it is clear that there are aspects of reality at which the ACLU characteristically, almost belligerently, does not look, and fears. It is this reality which I hope Guyana will force us to face. And that is: what is really happening, what is really going on behind the label which the perpetrators are telling us is First Amendment-protected? We must use the skills of social science, hard science, intuition, sensitivity, self-analysis, and self-criticism in a new approach to these times. 'Be ACLU tradition and the First Amendment call for no less.

We have not stopped to ask: what is religion? what is brainwashing? what are the Nazis really, factually doing, actually, at this moment, as they march? Not only, what do they advocate in the future, but what is happening as they engage in the activity for which they seek our protection? What, psychologically and sociologically, is happening? What occurs as the mind absorbs photographs of women being tied up with spiked leather masks and torso straight-jackets, with knives stuck up their bodies and representations of ecstasy on their faces? What have the anxious acts of a person, young or old, who has not had enough protein or enough sleep, who has been deprived of contact with family, privacy, ideas, or influences other than the cults, deprived of the opportunity for reality-testing and under enormous peer pressure, what has all this to do with the exercise of religion (if we give that term the reasonable meaning it had when the First Amendment was adopted, or even the common-sense meaning it has today)? It might well be that after rigorous, empirical, humanly sensitive analysis, we would still take a modified protectionist position. But my point here is that we have not made such inquiries. We do not really analyze. We make a knee-jerk application of classical First Amendment principles to an event which is different in basic quality from those which stimulated the original concept and the subsequent case law.

Just as we have to know when to expand the Bill of Rights and the Fourth Amendment to cover searches which the Founding Fathers could not envision (one wonders if some of them relied on their wives the way today's male authors take the copyright even when the ideas and authorship are joint work), we need to know when a different phenomenon is being labeled “speech" or “religion” and to reject its inclusion as protected if it is really something else. Let me not be misunderstood, however, as implying that this will be easy; but we do not even make the attempt.

We are losing our common sense, to say nothing of our civilization.

The literature on brainwashing (I will not attempt to define brainwashing here) is growing,[10] and we have enough clues to begin a rigorous attempt to distinguish it from intense, religious conviction/conversion in terms which can protect the exercise of religion and inhibit substantially part of what has been going on in the cults lately. There are enough serious scholars of brainwashing and related mind manipulations to convene a national conference devoted to the interplay among the phenomena as well as to the necessary protection of religion, the proper role of government, and the kind of education that can assist in arming potential recruits against these techniques.

Professors Melvin S. Finstein and Michael Roskin's interesting letters to the New York Times (November 28, 1978) show that there is creative thinking to which the ACLU ought to pay attention.[11] Clearly, not all suggestions win be workable; some will have to be withdrawn because they are not consistent with preserving appropriate First Amendment protections. The issue of “appropriateness” is, of course, the major question , if we can get past the fear of “belittling” the First Amendment by daring to ask: what is a religion, what is the free exercise thereof, and who can claim it in what proceedings?[12]

I do not underestimate how difficult it will be to commence a factual exploration of the questions: what is religion, what is a church, what is "brainwashing," what types of expression, assertion, feeling (with how much protein, how much isolation, how much lack of sleep, etc.) should be entitled to First Amendment religious protection, and in what contexts? Similar difficulties arise when factually exploring appeals for conscientious objector status or conservatorships, or when the government requests to look at income records. Nor do I underestimate how difficult it will be to fashion categories which are the least susceptible to misuse by those attempting the breakdown of the simplistic commands of the First Amendment to persecute or oppress. Strategies and analyses will be difficult to develop, but we must not shrink from trying.

I have written this paper in Stockholm. My understanding of the “facts” of the Guyana/Jonestown deaths comes from the International Herald Tribune and the New York Times. A white American school teacher from the Northwest, who also read these reports at the American Center, was perplexed that blacks had not already expressed a particular dismay at the fate dealt to so many black people by a white “leader." Shortly afterward, the Herald Tribune (Dec. 9-10, 1978) reprinted Earl Ofari's comments from the Los Angeles Times on this point, noting that cults often draw those who are most oppressed, those to whom society offers the least If there is any kind of local or national conference on these issues, there must obviously be Third World participation. We need to look at these events from an interdisciplinary and multiracial perspective.[13]

The reality of many Third World lives may still be spoken of in Baldwin's words, and in those of Richard Wright. Guyana may shake us up a bit,[14] but neither Jonestown nor the other cultural manifestations discussed here present the rigors of that time which is yet to come. Nevertheless, after the initial shock and the recriminations, it would seem that we might ask ourselves, as we contemplate Guyana, whether there is any way of dealing with those aspects of our society which create the needs which Moon, Jones, and others purport to satisfy, and which at some level, at such a terrible price, they apparently do meet. It may be an irony worth pondering that the price paid to these masters is total surrender of will and freedom, and that we in the ACLU assist both those who desire to make this surrender and those who desire to exploit the needy through the highest instruments of freedom, the First Amendment and the related concepts of an individualistic, free society.

We have not yet achieved a humanistic identity as a secular, bourgeois, capitalistic society. From different viewpoints, the religionist and the Marxist both assert that such would be a contradiction in terms. The socialist world appears less able to protect some aspects of human rights and better able to protect some others. But I assume that most in the ACLU would agree with me that it would be reasonable, whether in our individual or organizational capacity, to continue to explore solutions which involve more factors than a materialist analysis. We may note that cults fulfill needs to belong to a community, to receive compassion and human concern, and to find a purpose beyond the self. In a small way, the ACLU's abstract, mechanical application of the Amendment theory to complex, human situations lacks the compassion which makes cults appealing. We are a very “talky,” "head” and “paper flow” oriented organization. We need to do some hard thinking and some painful feeling. When we act, we need to have ascertained the facts to which we apply the Bill of Rights, to do so by a more fully informed process.
Notes

1. This paper expresses only my individual views. I write as an individual, not in my capacity as an ACLU board member. The phrase, “some rigors of our times,” is adapted from James Baldwin. See note 13, below.

2. One may wonder if more powers would have been discovered if one thousand Congressmen or Patricia Hearsts had died in Guyana. In fact, I believe one of the factors in our failure to study the reality of events like Jonestown carefully enough in the past has been the invisibility of the people affected. See page 9.

3. Writing after their execution in the Rosenberg case.

4. On a separate issue altogether, not involving the ACLU but related to the First Amendment, the United States Supreme Court decisions, and then the movement of the State Bar of California toward permitting almost all forms of advertising by lawyers, caused me a similar uneasiness. Obviously, the results of lawyer (and soon to come, apparently, physician) advertising are different in quality from the results of totalitarian control of cult members and violence in pornography. But I think that the general cheapening of our culture, which advertising reflects, and which it will deepen, is a manifestation of the same attitudes that the ACLU has taken towards cults and pornography.

5. In answering such questions as what is a church and what is a religion, Lenin's statements about socialist ideology express how we in the ACLU feel about the First Amendment:

Since there can be no talk of an independent ideology formulated by the working masses themselves in the process of their movement, the only choice is - either socialist or bourgeois ideology. There is no middle course (for mankind has not created a “third” ideology, and moreover, in a society tom by class antagonisms there can never be a non-class or an above-class ideology). Hence, to belittle the socialist ideology in any way, to turn aside from it in the slightest degree means to strengthen bourgeois ideology. (V. 1. Lenin, What Is To Be Done, Collected Works, MV, 39.)

6. Of course there are analysts of the role of the legal system who believe that a further de-mystification of the law would lead to a healthy response. Such questions are obviously beyond the scope of this article, but I do not foresee for example, that widespread lawyer advertising would produce any benefits; clients will simply be disillusioned, general cynicism win increase, and fees will rise to cover advertising costs.

7. The use of the term “starvation” could well be disputed; the few empirical investigations of the cults now available suggest a diet so low in protein as to produce, at least, nutritional deficiencies. Lark of sleep is another prominent feature of cult life. But analysis of the voluntariness of cult membership does not depend on whether or not nutrition is described in terms of 'deficiency' or "near-starvation.'”

8. My belief that we have missed the totality of reality in part because we have not made an adequate effort to obtain broad Third World, working people, and community representation on the ACLU boards is beyond the scope of this paper. The questionnaire recently circulated to retired board members in Northern California suggests that Third World and women board members leave in higher proportions than do white, and particularly male-lawyer-members.

No doubt many readers are already reiterating the quite true proposition that the ACLU cannot be all things to all people and all causes. It is my point, however, that we take positions based on what we believe to be the facts without a full understanding of what those facts really are. Consequently, we have an indisputable duty to learn, insofar as humanly possible, the facts upon which we will predicate our legal, legislative, and even media actions.

9. The lawyer advertising issue involves different considerations. Many of those advocating advertising are among the most idealistic lawyers, who serve the poor and bring legal services to those now deprived of them. Although it is my belief that advertising is not going to remedy the lack of availability of competent legal services to low- and middle-income groups, the motives of those who have brought us to lawyer advertising were different from those of the other groups being discussed here. The problem requires separate analysis. Even so, the classical First Amendment protection is invoked in a curious way. The rationale is that it is the lawyer's right of free speech, as well as the consumer's right to hear it, which is being vindicated by the right to advertise. But the real motive is to benefit the potential consumer. To this extent the lawyer advertising issue has in common with the other three phenomena a motive which is not really the expression of ideas by the speaker, but another end.

Correspondingly, just as the perpetrators of the protected activities are really seeking to do something other than “speak" or “express” ideas, the ACLU- First Amendment analysis of all these issues has not looked at the reality. We have done little empirical investigation. We have denied the emotional obvious, real-life, full-fledged actuality of the whole, and focused on a small part, that part which the actors have successfully draped over the whole in the guise of “speech” or “assembly” or "exercise of religion.”

One of the many Abraham Lincoln anecdotes on the theme of common sense has some relevance to the thorny question of “what is a religion.” Lincoln asked a farmer how many legs a cow had. “Why four, of course.” “And if we count the tail how many then?” “Five, of course.” “No, that’s where you're wrong; just calling a tail a leg doesn't make it one.” Of course, when the ACLU itself has doubts, confusions, lack of total commitment in certain equal protection cases, race discrimination employment cases, and particularly sex discrimination cases in certain contexts, it may invoke its rule that it does not take a case with “disputed facts.” It may be a mixed question of law and fact as to whether a particular group is a “religion,” but to let Moon, Jones, and others make this determination for us is quite unlike our practice in other cases.

10. See particularly: Scheflin, A. & Opton, Jr., E. (1978). The Mind Manipulators. New York. Paddington Press.

11. Prof. Roskin suggests that a possible approach to distinguish brainwashing from varieties of socialization (in families, schools, churches, through advertising, etc.), as well as to deal with the need for a workable, legal definition, would be to define brainwashing by the techniques used rather than by the end product.

12. While there would be little problem introducing the evidence now beginning to be compiled on various types of brainwashing, and in qualifying experts as witnesses, we must of course give a great deal of procedural attention to the issue of what are appropriate proceedings. A major problem with the recent Moon conservatorship cases was that they involved the parents of young adults who sought to become conservators. Perhaps there can be a “neutral” agency which would act as conservator-ad-litem during such proceedings. Perhaps there could be proceedings requiring that the would-be conservatee be made available for a period of one week either to the parents or to a non-cult member of the conservatee's choice. Perhaps there could be a requirement for the burden of proof to shift after a prima facie case is made out that the full array of techniques established as causing something other than free will response had been employed. This paper cannot explore these details, but the ACLU must not use its creative energy to defend against these innovations; it should assist in developing them, consistent with our overall view of the Bill of Rights.

13. James Baldwin wrote in 1951 of white America’s psychological inability to face its slave-reliant history and its relation to blacks:

This sense of how Negroes live and how they have so long endured is hidden from us ... by the nature of the American psychology which, in order to apprehend or be made able to accept it, must undergo a metamorphosis so profound as to be literally unthinkable and which there is no doubt we will resist until we are compelled to achieve our own identity by the rigors of a time that has not yet come. (From "Many Thousands Gone,” in Notes of a Native Son (1955) Boston: Beacon Press.)

Baldwin's words are most assuredly still relevant. The sense of how women live is likewise hidden from us by a similar self-protection.

14. Guyana obviously raises far, far more questions than are even suggested here. One set of questions concerns child custody. For example, what are the duties of a lawyer to his or her client in such a situation? When is there a moral responsibility to notify the authorities about dangerous conditions in the child's environment? Present law does not totally recognize the complexity of custody struggles, and that is why we do not deal adequately with them. I believe that the major lesson of Guyana is to show us that there are real dangers in not looking at reality, even though it is difficult to do so for reasons of ease, comfort, self-interest, traditional habits of thinking, and prejudice. So this paper is not an appeal to emotion, but to a more informed reason.

References

Levi, E. H. (1957). Introduction to Legal Reasoning. Chicago: University of Chicago Press.

Wright, R. (1966). How Bigger was born. In Native Son. New York: Harper & Row.

Fay Stender, who died in 1980, was a San Francisco-based attorney, social activist, and, at one time , a board member of the Northern California branch of the American Civil Liberties Union. According to the New York Times (May 22, 1980), she championed prison reform and represented several radical activists, including Black Panther Party co-founder Huey Newton and Soledad "brother" George Jackson. In 1979, she was shot and left paralyzed from the waist down by a gunman who accused her of betraying Jackson and the prison reform movement.

This paper was written shortly after the 1978 Jonestown disaster. The editors appreciate permission to publish it from the late author's husband, Marvin Stender, of San Francisco. The CSJ has edited the manuscript slightly for style.

Cultic Studies Journal, Vol. 4, No. 1, 1987