Free to Speak Her Mind
A reminder from the ACLU's Robyn Blumner: That offensive expression she's been protecting could be your own
Shortly before Robyn Blumner arrived in Miami in 1989 to head the American Civil Liberties Union of Florida, bombs shattered the doors to the Cuban Museum of Arts and Culture, which had exhibited contemporary art from the island. The home of a Miami-Dade Community College professor was also bombed, on the day the professor was scheduled to host a conference on U.S.-Cuba relations.
At about the same time, well-organized religious groups such as the Christian Coalition were asserting influence over local school boards and municipal governments -- pressing for religious instruction in classrooms and seeking censorship of certain music and television programs. And the ACLU was then challenging in court an ordinance passed by the Hialeah City Council that prohibited animal sacrifices for religious purposes.
The state chapter of the ACLU, headquartered in Miami, had hired Blumner as executive director because it needed a strong manager to confront these threats to basic freedoms and to fix a number of serious internal problems: In the previous eight years, the group had lost or fired five executive directors, it had faced bankruptcy as a consequence of waning membership, and two top officials had engaged in a turf war that had divided the organization. "No one survived the ACLU of Florida," Blumner recalls. "If directors tried to exert power, they were ushered out the door. And if they didn't exert power, everyone was disappointed in the way the office was operating -- and again they were ushered out the door."
A majority of the state ACLU board of directors was impressed with Blumner's experience and self-confidence, and they offered her the job. Before accepting, however, she issued a host of demands designed to transform Florida's ACLU into an efficient and professional operation. In firmly establishing those criteria, Blumner set a precedent for her relationship with the board of directors that finally brought stability, even as it engendered occasional disagreements. Simply put, she would stubbornly argue her position until she achieved her objectives. To some people, however, her goals seemed unduly rigid: She wanted to institute the primacy of the First Amendment -- which protects free expression -- above all other constitutional safeguards, and she vowed to challenge any so-called liberal programs, such as affirmative action, if they hindered free speech.
Blumner vigorously began straightening out the group's management and financial problems. Under her supervision, the state chapter has grown from 7000 to 10,000 members, its annual budget now tops $550,000, and a cadre of 300 pro bono lawyers represents the group's plaintiffs in 60 legal cases currently working their way through the courts. "Money is power," she notes. "If I could generate the resources for the organization, I knew my vision of the ACLU would hold sway. It was as simple as that."
The ACLU successfully challenged the Hialeah animal-sacrifice ordinance and helped to overturn a federal ruling that an album by rappers 2 Live Crew was obscene. It also blocked a judge's order requiring minors to obtain parental permission for abortions, and barred police from persecuting homeless people. "She has brought our message to lots of people and raised the awareness of civil liberties issues and First Amendment issues," says Ben Waxman, president of the Miami ACLU chapter and a member of the state board of directors. "She's a formidable adversary and she is very passionate about her views. She'll be hard to replace."
Last month Blumner, who is 35 years old, announced her intention to step down from the organization she rebuilt in order to join the St. Petersburg Times as a columnist and a member of that daily newspaper's editorial board. During a recent interview, Blumner reflected on the status of First Amendment protections in South Florida, the growth of the state's ACLU affiliate, and her decision to leave it.
What's the state of freedom of expression in South Florida today compared to what it was when you arrived eight years ago?
I don't think there's that much difference in how the First Amendment is respected. One of the credos of the ACLU is the Thomas Jefferson quote that eternal vigilance is the price of liberty. What that means is you can never rest in your freedom battles. The same issues that caused controversy in 1950 cause controversy in 1990. It's astounding. The Ku Klux Klan wants to adopt a highway in Deltona, and the Florida Department of Transportation wrote them a letter saying, 'Because you are the Klan you can't adopt a highway. We won't allow you to participate in this program.' Clearly a violation of the First Amendment. The government cannot, based on the ideology of a group, preclude it from the privileges of citizenship and the benefits of government. That issue is no different from Skokie in the 1970s, [in which the ACLU defended the Nazi Party's right to stage a parade in a Jewish neighborhood of that Illinois town].
Have any recent events in South Florida forced the ACLU to be more vigilant?
I'll give you an example of the new school board in Dade County. Right off the bat they institute a more stringent uniform policy. The First Amendment provides that individuals can express themselves -- and that includes their manner of dress. If a young girl wants to wear a T-shirt to class that says, 'I support student rights,' or 'I support the NRA,' or 'I support Alex Penelas for mayor' -- that should be her constitutional right and it shouldn't be denied for a uniform policy.
Why do you think people continue to have difficulties with the First Amendment?
Part of the reason is that people in general don't understand their rights. They know they have freedom of speech; they just don't understand that the next guy does. Part of the reason for that is the lack of ability on the part of many people to think in concepts, to think in abstractions. You can't understand what the ACLU does unless you can think conceptually. You have to be able to lift a principle from one set of facts and apply it directly to another set of facts. If you can't do that, if all you're doing is looking at who we're representing and whether you like the Klan or not -- and not whether their constitutional rights should be protected -- then you'll never understand what the ACLU is about. You'll never understand what the Bill of Rights is about.
How did your strong support for the First Amendment evolve?
I felt intuitively that freedom of expression was the base from which all other rights derive. Without freedom of thought, freedom of expression, your right to redress the government is meaningless. None of these other rights has any substance unless you have a right to freedom of expression. And the reason this has come into such sharp relief is because freedom-of-expression rights have been de-emphasized by both the right and the left.
Has your experience in South Florida helped cement your commitment to the First Amendment?
There are times when the Cuban community reacts violently to dissenters, to those people who believe that dialogue with Castro is the appropriate way to liberate the Cuban people. I think that is a very sad aspect of this community. I think the police and public officials should have done more to flush out who in the Cuban community has engaged in terrorist activities. There tends to be [among officials] a sensibility that one protects one's own.
What has the ACLU done to improve the climate?
There's something important to remember: When Cuban community members show up outside a [place like] Centro Vasco to protest a singer, that's their right. They have a First Amendment right to be out there protesting, and the ACLU would represent those protesters and their right to be out there. The only thing I find distasteful is the fact that they resort to violence to get their point across.
Why hasn't the ACLU pressed the police to investigate the bombings, threats, and other illegal activities extremists in the Cuban community have used in an attempt to enforce a monolithic view of Cuba?
The state board hasn't done anything on that. It's really a local-chapter matter. There has been some opposition from the local chapter to the lackadaisical way a lot of these investigations have been handled. There has not been one trial on free-speech terrorism in Miami. Not one. I don't know if that just means these bombers have been lucky, or good, or whether the police haven't been trying hard enough. We should be riding the back of the police to do more because [violence] certainly chills freedom of expression down here.
But the ACLU has never sued any police department for failing to intervene -- for example, at the Gonzalo Rubalcaba performance at the Gusman Center in downtown Miami, when an angry crowd of protesters spit at and even assaulted concertgoers. Why hasn't the ACLU spoken out?
What's the ACLU to do? You could make the case that the government didn't show up, but they did. They may have not been as vigorous in enforcing the law as they should have been, but that's a really tough case to make, and you had better have videotape that shows that quite clearly if you want to win in court. You just can't point to a group of police and say, 'They let him spit on me,' and expect to have a judge consider the case. You have to have things more clarified to take legal action.
As the state's ACLU director, you write a twice-monthly column for the St. Petersburg Times, but you've never discussed the climate of intolerance in Miami's Cuban community.
What's there to say -- it's a bad thing that there's no tolerance for diverse opinions in Miami? The police should do more? That's about it, that's the opinion. If I were to write an opinion piece, it would probably be on the rights of the anti-Castro folks to protest, because I think, in the liberal community, that's misunderstood. [Liberals] may not naturally appreciate the fact that, even though they may recoil from the angry crowds that gather whenever there's a suggestion of dialogue with Castro, the fact is that these angry crowds are merely exercising their First Amendment rights. Sometimes the liberal community is willing to sacrifice or circumscribe the rights of those people they don't agree with. Censorship is just as dangerous when it comes from the left as when it comes from the right.
From its inception 75 years ago, the American Civil Liberties Union has fought governmental encroachment on personal freedoms. But in South Florida's community of Cuban exiles, the rancor and periodic intimidation arising from clashing viewpoints have -- almost without exception -- come from private individuals and groups. "When a private institution or private segments of the community act in ways that otherwise impose on freedom of speech, the ACLU has often taken the position that that's not a violation of rights," says Jeanne Baker, a state board member and a Florida representative to the national ACLU office. "There are many social and economic wrongs that the ACLU cares about but doesn't do anything about."
But some Miami Cubans who support the ACLU's mission believe the local and state affiliates should be more flexible in encouraging free and open debate. "It is true that many of the things in Miami that chill free speech and create an atmosphere of intolerance are not government-sponsored," says Max Castro, a First Amendment advocate and researcher at the North-South Center at the University of Miami. "But you have the same thing as in the South in the Sixties. You had lynchings done. They weren't done officially. The problem is, when you trace the string back, you find there's some government complicity -- either that the guys who are wearing the hoods are employees of the sheriff's department, or the government looked the other way."
Another Miami Cuban, Francisco Aruca, has for years provoked controversy with his outspokenness, both as a radio broadcaster and a businessman whose charter service, Marazul, has shuttled thousands of exiles between Miami and Havana. He is also a former board member of the ACLU's Miami chapter. "If the ACLU could adjust itself to monitor pressures against freedom of expression that come from the private sector, it would be a welcome addition in Miami," he says. "It would be one more way that the institution could make itself relevant to the Cuban community."
That relevance -- or lack of it -- may be reflected in the ACLU's membership rolls: Just two of the thirty-one people on the state affiliate's board of directors are Hispanic. On the Miami chapter's board of directors, only three of thirty-five are Hispanic. "I don't know what to do to make more Hispanics join us," Blumner concedes. "Membership is open to everyone. I can say, 'Please join the ACLU. It's a great way to protect your freedom. It's probably the only way to protect your freedom.' But if that's not an interest, there's nothing I can do to change that. Freedom of expression doesn't seem to be a value that is culturally relevant. It's always surprised me. It seems like so many families down here escaped tyranny, and [you'd think] the first thing they would do when they came to this country would be to embrace the freedoms this country offers and to fight for this freedom because they know how precious it is and how rare. That doesn't seem to be a community ethic."
That attitude distresses some Miami Cubans. "Saying that freedom of expression is not a Latin cultural value -- I think that's wrong," contends Max Castro, who stopped actively supporting the local and state chapters of the ACLU because he felt his time would be better spent on other types of activism. "What we have here is an extremely polarized political situation that creates a lot of trauma and hurt and does foster intolerance.... The ACLU has done a good job in many cases of fighting against it, but it's too comfortable to say the Latinos are intolerant."
Blumner is the eldest of three children born to two New York City teachers; the family moved to Long Island during the 1960s, and then her mother quit her job to become a full-time housewife. Her ardent support for personal liberties, she believes, stems from her parents, who encouraged her as a child to set many of her own rules. "I never had a curfew," Blumner recalls. "I don't even remember having a bedtime. That was a prerogative left to me, and I had to suffer consequences as a result of my behavior."
Intensity of purpose has always been a hallmark for her. She now jokes that if she could only have spoken the minute she was born, she would have proclaimed her desire to be a lawyer and political leader. In elementary school she circulated pamphlets supporting George McGovern's presidential candidacy. In high school she founded a chapter of the Young Democrats Club.
She attended Cornell University's Institute for Industrial and Labor Relations, relishing the idea of union work (her father had been active in labor-union affairs) and entered law school at New York University determined to become a labor attorney. A stint with a Park Avenue law firm changed all that: She discovered that she loathed the private practice of law. "I could feel the creativity just oozing out of my body," she recalls. "I knew I could never do it; it's just too dull. It was awful in the law firm. I couldn't work in an environment where people expected me to honor them because of the money they were generating."
She also tried and rejected a career as a labor negotiator because the work demanded too many compromises. "When you negotiate, you're bluffing and you're zigging and zagging," she says. "I'm way too forthright for that. I can't look someone in the eyes and lie to them."
She joined the ACLU's reproductive rights project in the mid-Eighties, and helped to prepare legal briefs for the U.S. Supreme Court in support of abortion protections. Then she came across an opportunity to lead an ACLU state affiliate -- in Utah. "I don't think I could have pointed the state out on a blank map," she jokes today.
Equally foreign to her was Utah's theocratic culture: Mormon leaders dominate the legislature, the courts, and the state's executive branch. "I arrived in Utah and the newspaper did this big story about me," she remembers. "They published my picture. I was a nobody and suddenly I'm in the newspaper. I thought, 'This is unbelievable. This is what they do for all new executive directors?' Then, later on, I thought, 'No, this is what they do for all New York Jews because they want to know who you are. They are saying, 'Watch out for her -- she could be poisoning minds.'"
Describe the atmosphere in which you worked in Utah and how it may have prepared you for Florida.
I got a very strong sense of the religiosity of the state. This was a state where there was one question: Are you or aren't you [a Mormon]? I like to tell people that when I went to Salt Lake, suddenly I was a gentile, because Mormons believe anyone who is not a Mormon is a gentile. My grandmother would have been so proud. Of course, when I moved down here, I became an Anglo.
Certainly there's an orthodoxy in Utah, as there is now in South Florida. As in Miami, it's hard for people who are in that community or just on the fringes of that community. So to people who were Jack Mormon -- people who had left the church -- leaders were much more repressive. My fun was being a total outsider and being completely licensed to do what was right. I was from New York, my friends were in New York, my family was in New York. I didn't have to make people like me and I didn't have to avoid making waves. So I went in there like gangbusters and I created a lot of noise, and I think I gained the respect of a lot of people because they hadn't heard this kind of challenge before.
Did the ACLU ever go to court to defend the Mormon Church?
We defended a polygamist. The battle was over whether a polygamist could be per se precluded from adopting children, and it went all the way up to the Utah Supreme Court, which decided that a polygamist could not be precluded just because he was a polygamist. In Utah those people who practice polygamy are not sex maniacs. They are engaging in what they consider their religious practice. We thought it was a religious-freedom fight.
Has that case provided any foundation for your Florida work?
It's exactly the same as the Santeria case. The principal is just the same. The case was the Church of the Lukumi Babalu Aye against the City of Hialeah. What [city council members] did was they passed a series of ordinances that forbid the ritual slaughter of animals. You could kill it, but you just couldn't pray over it when you did. If you go back and look at the notes of the public hearing, the city council members are talking about how, if you don't believe in Jesus Christ, you don't belong in the City of Hialeah, basically. Clearly it was a case of religious persecution. We lost in the district court and we lost in the Eleventh Circuit, and we didn't win until we took it to the U.S. Supreme Court, and then we won it unanimously.
For an ACLU director, Utah would seem to represent a great challenge because the Mormon Church wields such unusual power over government. In contrast, free-speech issues in Florida must have seemed less dramatic.
It may seem like Utah is the anti-civil-liberties mecca where you would feel totally powerful and righteous. I used to say the legislature of Utah wakes up, trips over the Constitution, and starts its day. But that's true in spades here in Florida. You have northern Florida, which is the Bible belt, where you still have prayer in school. We've done work in Nassau County, where Florida dips into Georgia. There was an eighth-grade teacher who every morning would read her Bible story in class, and when little Nicole Hatch objected to it, the response of the school board, at a very raucous meeting, was to offer Nicole a chair in the hallway during the readings. We went to federal court and not only was the policy of the school board found to be unconstitutional, Nicole was also awarded $15,000 in damages. There's nothing like the ebullience you feel once you win an important victory like that. I've felt like that much more often here because I have the resources to do more here.
After just eighteen months in Utah, Blumner took the position as head of Florida's statewide ACLU chapter, and she quickly found herself at odds with the willful Miami affiliate -- a portent of other skirmishes to come, notably with the leadership of the national ACLU office.
In 1988, just before Blumner arrived, Ben Waxman, now president of the Miami chapter, had filed a lawsuit to stop police from arresting homeless people simply because they lived in public places. Initially Blumner interpreted the lawsuit as an attempt to redress all the wrongs suffered by that class of people, and she balked. As she says: "The ACLU can't save the world."
Waxman pressed forward despite Blumner's skepticism and, in 1992, Federal Judge C. Clyde Atkins signed an order protecting the homeless from police harassment. (The case moved to the federal appeals court, where a panel of judges ordered ACLU lawyers to negotiate with the City of Miami's police department in an effort to reach a settlement.)
In 1992 Blumner's zealous support for a Jacksonville shipyard owner accused of harassing a female employee annoyed leaders of the national ACLU office, and they distanced themselves from the Florida chapter by refusing to comment on the case. U.S. News & World Report published an article headlined "The ACLU v. the ACLU" describing the dramatic difference of opinion. Eventually the national leaders filed an appellate brief supporting the view Blumner had advocated.
You have strong opinions about the ACLU's mission and have even challenged the organization's national leaders, the first time concerning the Jacksonville shipyard. What happened there?
Under the Civil Rights Act, a judge had ruled that, because the shipyard was a sexually charged work environment -- primarily due to the proliferation of pinups on the walls -- it was liable for monetary damages to a female welder who worked there. She claimed that the environment was hostile and sexually harassing. It was my view, upon studying the situation and researching the case, that for the government to find liability against a private employer because of the way it chooses to decorate the walls is a violation of the First Amendment. I don't care what's on the wall -- it's up to the employer to decide.
By your analysis, women would not be able to seek protection from the government even if they were continually harassed by their male co-workers.
I think that is a vague, overbroad basis for liability that violated the First Amendment on the face. There are certainly issues of sexual harassment that should be litigated. If an employee is told that as a condition of the job or promotion they must engage in sex, clearly that is sexual harassment. If all that's happening is that an employee is feeling humiliated or uncomfortable on the job because of the boorishness of the boss or co-workers, welcome to the world. No one is guaranteed a workplace where they won't feel humiliated. That's part of competition; that's part of being an adult.
But wouldn't women be discouraged from performing nontraditional jobs such as construction work, welding, or shipbuilding if they were constantly subjected to verbal abuse?
That's part of being a pioneer. For a woman to run to the cover of law to protect herself from anything discomforting or disquieting will only ensure that women will always be separate, will always be outsiders in that work environment. A false dichotomy has been set up between the First Amendment and the Fourteenth Amendment guaranteeing equal protection under the law. I think that fully protecting the First Amendment is the best way to ensure women's equality. Others have argued that we have to limit speech so that certain kinds of messages can't be communicated that may cause inequality for women.
Would you also allow racially insensitive speech in the workplace?
I would say yes. Often it's the derivation of speech that causes problems. I know that black people call other black people the n-word all the time, and they mean it in a congenial way. It's not a problem. But have a white person call a black person that and it's a different story. It's impossible to come up with a scheme where, going in, you know what words are punishable from what words aren't. It always depends on the context and it always depends on derivation.
You wouldn't say that women or minorities must accept harassment. You're just saying it's not a government concern?
Exactly. As an employer myself, I would not tolerate that behavior in a workplace that I controlled. But that's my choice as an employer. I set the rules regarding decorum. If you have an employer who enjoys bawdy talk, then he has the right to engage in that kind of speech, just as he does at home.
But certain types of speech can be illegal, such as making false and defamatory statements about someone.
It's not illegal in the sense that the government can criminalize it. It's illegal in the sense that there is a civil action that can be brought. But in libel and defamation lawsuits, the plaintiff has to prove you've suffered a financial loss. That's not true in the hostile-environment, sexual-harassment cases such as the one involving the Jacksonville shipyard. The women are just saying they are deeply offended. It's important to note that there's a universe of difference between the government criminalizing or allowing liability to be imposed upon speech and the government invading the workplace and setting rules of propriety.
Friends and foes alike characterize you as a dominant figure who discourages debate.
I think there's plenty of dissent in the ACLU, and we've had good, healthy debates about policies. You have to come back to one thing: I have nothing tangible to offer people, to offer our members, to offer society. There's only one reason why this organization exists, and that's to protect an intangible, an ideology. If we tinker with that ideology, we've lost our product. We have to be very clear about what we think in order to have people follow us, in order to have an impact. If we equivocate, why should anyone support us when they can't predict where we're going to come out on anything? The only reason we have 300,000 members [nationwide] is that they count on us as a beacon for freedom, freedoms that we've solidly supported in the past.
Are you leaving the organization because of conflict surrounding your leadership and goals?
No, no, no. I thrive on that. I decided to give it up after ten years because I hate raising money. I'm tired of fundraising and making sure that the budget is met every year. It's a really important part of my job. I understand that. And if I'm in this job, I have to do it and be serious about it and make it take up as much time as it does. When I move to a newspaper, it's my opportunity to deal with issues in their purest form and not have to do any administration work -- just think and write. I'm really looking forward to that release.
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