Someone has to be the first | Interview with Dr. Nadine Strossen

0:00:16.3Why Law?

Karina Macosko: Hi, my name is Karina Macosko from AcademicInfluence and I’m here with Dr. Strossen, who is a professor of law. And you were the youngest, and the first female president of the American Civil Liberties Union. And so it is just so incredible for me, a young student, to hear about these really inspiring people like yourself who were really at the forefront of your field in terms of female involvement. So, I am so excited to talk with you today, and we just want to first hear…

…how did you get into your field, how did you get involved in law, and also, in civil liberties?

Nadine Strossen: Well, thank you so much for your enthusiasm, Karina. It’s mutual, because you are the future, people of your age and even younger. I am so happy when I see that you are interested in civil liberties and human rights and very influentially exercising your free speech rights as you’re doing through this podcast series. So thank you for giving me an opportunity to be a part of it.

I have been a supporter of civil liberties and human rights as far back as I remembered, before I knew what they were. I just had as an instinct as a little kid that I should have the right to free speech, I should have the right to express my own ideas and to question other people’s ideas, including my parents’ and my teachers’. I also thought that I should be entitled to basic fairness, including and how I was treated in school, and when I was punished for speaking when I wasn’t supposed to be speaking, and so forth.

And even beyond myself, I don’t want to sound so self-censored. When I was a young kid, the Civil Rights Movement was beginning to take off full steam in the United States, and it was just horrifying. The images are burned into my memory of seeing police with dogs and fire hoses attacking peaceful individuals who were simply trying to raise their voices to advocate for their right to vote, other fundamental rights.

And so, as soon as I learned that there is something called the law, and that there is something called the American Civil Liberties Union, which is trying to influence the development of the law to actually protect rights that have existed in theory from the beginning of our country, but for most of our history were completely honored in the breach, that was a match made in heaven. I knew that I wanted to pursue a law degree and to use it to advocate for full human rights. It’s an ongoing task, but we have made enormous progress in my generation, and I know we’ll make even more in your generation.

Karina Macosko: Yes. Well, that is incredible, and you were about my age during the ’60s, during such a pivotal time in American civil liberties. And so, did you know starting from my age that you wanted to go into law? I know that you said you wanted to work in civil liberties, but did you know that being a lawyer was exactly how you wanted to do it?

Nadine: Well, Karina, it’s a little bit of a complicated story, and it will also reveal that I am not the fearless pioneer that women such as Ruth Bader Ginsburg and others were, because I fell in love with law when I was still in high school at the age of about 15 or 16. I was on our school’s debate team, I did happen to be the only female on our debate team, and this will mean something to your dad, when we became the Minnesota State Champion team. Actually, two years [0:04:14.7] ____. And in one of those years, the debate... National debate topic was a legal topic. So I used to take the public bus from my suburban home to the University of Minnesota law library to do research, and I became absolutely fascinated by law, but I had never met a lawyer at all. I had never even heard of a female lawyer.

This was a time when very few women, at least, you know, white suburban women, amongst whom I was growing up, were working outside the home at all. So I said to my male debate partners, "Law is a fantastic field. You ought to go to law school." And then, when I said that, it occurred to me that I could do that myself.

Then I went off... And here’s another detail, my mother used to subscribe to the Sunday New York Times. She was a refugee to Minnesota from New York where she had grown up. My father got transferred to Minnesota. So her connection to New York was reading the New York Times. I remember reading an article when Harvard Law School had founded the first so-called Student Legal Aid Bureau. This was in the ’60s, and it was a wonderful innovation, because it gave the students who previously had only been learning theory and doctrine, an opportunity to develop actual practical hands-on lawyering skills.

That was an innovation in law school, and at the same time to be providing legal services for poor people who did not have the money to hire other lawyers themselves. So I said to my male debate partners, "You ought to go to Harvard Law School. You ought to become a member of this legal aid bureau." Well, the long story short is I ended up doing all of that myself. My eyes were opened to the fact that law was a possibility for women when I went to college and there for the first time I actually met lawyers, including women lawyers, including women lawyers who were advocating for civil liberties and human rights. And as I say, hats off to all of the pioneering women who didn’t need role models, who just did it on their own, but I really understand how important role models can be. They certainly were essential to me.

0:06:39.6Being a woman in law

Karina: Well, and I think you’re being a little humble, because you are definitely one of those pioneers and you serve as a role model for a lot of people.

So what kind of made such a dramatic shift and allowed you to kind of see like, no, I can do this for myself. It’s not just for my male debate partners?

Nadine: It literally was seeing women in these positions and seeing, also seeing the beginning of the legal movement for women’s rights. When I went to college, I very quickly became involved in what was then the beginnings of the so-called second wave of feminism. This was exactly the time that Ruth Bader Ginsburg was beginning to take her first cases, advocating for gender equality. And if you’ve seen either of the documentaries that have been done about her work, you understand how radical and extreme those positions were then, so thank you for having a little bit of sympathy with me, for me, when you understand that it was... We were living in a world where it was literally unthinkable that women should be entitled to practice law.

In fact, there was a Supreme Court precedent on the books in which the Court had held that women do not have the right to practice law. They shot down the claim of a really pioneering Wisconsin woman back in the 19th century. She didn’t need any role models, but unfortunately, her courage and the Fourteenth Amendment’s paper guarantee of equal protection of laws didn’t do her any good. So it was just on the heels of the Civil Rights Movement, which is of course still ongoing, the Women’s Rights Movement, other movements that were starting to actually demand that government officials, including Supreme Court Justices, actually live up to the guarantees that exist on paper only.

And that’s something that was recognized by James Madison , who is often called the Father of the Constitution. He said, "This is only going to be a mere parchment barrier between individual liberty and equal rights and government oppression. These words and these guarantees are not self-enforcing. They will only be real when you have actual people understand what they are, demand that they be honored and have the legal tools and the lawyers and judges to assist in translating the paper promises into real rights." And that, of course, has been the task of organizations such as the ACLU, the NAACP, many women’s rights organizations, that it’s an ongoing task, but it’s so much more encouraging now that so much progress has been made.

And I say that not at all to say we should rest on our laurels, exactly the opposite, we should be encouraged to keep on making the progress to... We’ll probably never literally fulfill those ideals on which our country was founded, we’re recording this just on the beginning, the eve of the 4th of July holiday, and I think it’s really wonderful. We now mostly recall how far away our nation was from those ideals when Thomas Jefferson , the slaveholder, penned them.

But I think it’s really important to look at the positive as well, that this was the first time in history that a country was even founded on the ideals of liberty and justice for all, that it even aspired to that as a positive thing and created a constitution that gave us the tools to actually bring about or bring us closer and closer to those ideals, including the ability to amend the constitution.

So the framers themselves recognized that it wasn’t perfect, and they gave us the tools to make it more and more perfect as time goes on.

0:11:00.6The impact of a pivotal period

Karina: Wow. Yeah, and this weekend is such a perfect weekend to have this interview, so I’m super excited because on 4th of the July weekend, it’s so important to remember how far we’ve come, but then also looking forward to young people like me and a lot of the young people who visit this website, of how much progress needs to be made. And so I want to focus on your work in the American Civil Liberties Union, coming from kind of a suburban city, suburbs of Minneapolis.

How was that transition into transitioning into such a big role during such... I mean, you grew up in probably one of the most pivotal times in American civil liberty, so how was that, kind of?

Nadine: Well, it’s so interesting, Karina, because no matter who you are, no matter where you live, in what kind of community, you can have an enormous impact. So you twice brought up the very pivotal period of the 1960s, and I want to tell you about another young girl, we were pretty much the same age, who lived very close to me, although we didn’t know each other until years later. She lived in Des Moines, Iowa, her name was Mary Beth Tinker , that name might sound familiar to you, because she went on to become the named plaintiff in a landmark Supreme Court case in which the ACLU represented her and her brother and another middle school and high school student in a case called Tinker v. Des Moines School District.

The facts of the case started in the mid-1960s. By the time the Supreme Court decided it, it was 1969, and that was the very first case in which the Supreme Court upheld freedom of speech for school students. It also upheld freedom of speech for school teachers, interestingly enough, and it had a classic, really important line: "The Constitution does not stop at the schoolhouse gate. Neither teachers nor students shed their First Amendment rights at the schoolhouse."

Mary Beth, this was during the Vietnam War, which was extremely controversial. I certainly knew that from my time in school, but at the time that Mary Beth and the others were... They demonstrated their opposition to the Vietnam War and their grief for the people on both sides who were being killed by wearing black arm bands to school.

Now, in the mid-1960s when they did that, that position was very controversial and unpopular, certainly in Des Moines, Iowa. And it was an extremely upsetting expression to the many students and teachers who had loved ones who were fighting and dying in Vietnam. I really want to underscore this because today, we may look back on this and think, "Oh, well, of course, the war was wrong, and that’s not a controversial position." No, back then you were considered very... I’m so sorry. I thought I’d turned off this ringer. Please forgive me...

Back then, it was an extremely unpopular position to be opposed to the Vietnam War, and it was not only considered even almost traitorous and unpatriotic to be questioning the United States position, but it was also extremely upsetting, offensive, insulting, traumatizing to the many people who had mostly fathers, brothers, male relatives, because there weren’t that many women in the military in those days. And I say that because we have to think of the kind of expression that in schools today that would be considered either traitorous, like burning a flag, or taking a knee, some people see that as unpatriotic or very upsetting and offensive and traumatizing.

For example, using racist or ethnic slurs, those were the equivalents back in the day, and yet the Supreme Court very strongly said, "The fact that speech is upsetting, even deeply upsetting, the fact that some people see it as being deeply inconsistent with their views of patriotism and national security, that is not a justification for suppressing it." If the school has a responsibility to prevent any violence from erupting, and the fear of violence is not enough to silence controversial speech, so very, very important lessons that continue to be very timely today, and here’s this, she was... Mary Beth was 13 years old at the time that the case started, and it became a nationwide precedent.

And I have to say it’s also very timely as we’re recording this in early July of 2021, because just last week, the United States Supreme Court issued another landmark student free speech case, also an ACLU case, the ACLU represented Mary Beth Tinker, and we also represented the young woman who’s known in the more recent case as BL, she’s now attained the age of majority, so we now know her name is Brandi Levi. And this was only the second time since 1969 that the Supreme Court has upheld free speech rights for students in school. There had been a number of other cases in between, but the Court kept rejecting student free speech rights. So this was really, really important, especially because Brandi Levi’s speech was on social media, off school premises, not during school time.

This is a huge amount of expression that is taking place among school students today, and as the Supreme Court rightly recognized, if the school had the power to restrict speech because it’s on social media, because it’s controversial or disrespectful or vulgar or profane, all charges that were made about her speech, then there were basically be no free speech rights for students at all. And I was really thrilled by a particular line in that case, when the Court said: "One of the reasons that we’re protecting this speech is not only for Brandi Levi’s sake, not only for the sake of students, but for the sake of our democracy." And here are words that I have already memorized, the majority opinion, and it was an 8 to 1 decision, there was only one dissent, so very strongly supported by the whole range of Justices with one exception.

And the majority opinion said: "Schools are nurseries of our democracy, and they have a special responsibility to protect unpopular speech, because popular speech doesn’t need a defense." So there are more and more tools for you and people your age even before you’re able to vote. Your free speech is especially important because that’s the only tool that you have to influence your school policy and to influence public policy even more broadly.

0:18:34.8Advice

Karina: Wow, that is just fascinating, and I’m so glad you’ve brought that up. We were just talking with the President of ACTA who was talking about the freedom of speech on college campuses. And so I could talk with you for hours about this, but we like to keep these interviews a little bit shorter, so just right before you go... Of course, you were, again, the first female president of the ACLU, and so speaking to young people who come to our website, especially girls, is there any advice that you would have for them moving forward if they are going to go into law or even if they’re going to go into something completely different. Is there any advice that you would have for them?

Nadine: I think I’ve already given one piece of advice by implication, Karina, and that is, don’t be deterred from thinking that you can do... Can’t... Don’t be bamboozled into thinking that you can’t do something just because you would be the first. You know, the first woman or the first person from Hopkins, Minnesota, etcetera, etcetera. You can be a trailblazer and you will have enormous support, and today there are wonderful resources for whatever you are interested in. There are so many organizations that specialize in any subject that you might be interested in, and all of us older folks are very, very interested in and eager to help younger people in any way. And I will also say this: Don’t be hesitant to reach out to individuals.

I get emails from college students, from high school students, from middle school students, and I respond to the best of my ability, and we engage in conversations, and I’m happy to provide advice and mentoring, and I know many, many others are, so don’t be shy. There are resources at your fingertips, thanks to the internet, individuals and organizations, and they are happy to help. And it’s not a one-way street because you, by showing interest in your future and our joint future, are such a source of inspiration to people my age.

0:20:58.4Sign off

Karina: Wow, well, thank you so much for taking the time to talk with me. I think this is a fantastic interview, it will probably be released around 4th of July, so it’s just a fantastic reminder of where we come from and also where the future of our civil liberties are going. So thank you so much for taking the time to talk with me. It was such a pleasure.

Nadine: You too, Karina. Thank you.