In this comment, Dan asked if I ever asked the ACLU for support in my lawsuits. The answer is a long story that I’ve kept procrastinating in telling.
Finally, here it is.
We start back in 2000. At that time I’d been barefooting for about 4 years, and I was doing quite a bit of research to see if I might be able to handle a library lawsuit pro se. My impetus was a court decision called Kreimer v. Bureau of Police for the Town of Morristown. What was significant about that case (a library case), was that access to libraries was considered part of a First Amendment right of access to information. That meant that heightened scrutiny ought to apply, and increase my odds of winning.
On October 21, 2000, the ACLU of Ohio held a special event: Acting on Principle, touted as “A conference for emerging and experienced civil libertarians”. My friend and fellow barefooter, Greg Morgan, and I attended. Coincidentally, the keynote speaker at that conference was Yvette McGee Brown, currently a Justice on the Ohio Supreme Court. At that conference, Greg and I talked to Christine Link, the Executive Director of the Ohio ACLU. We told her of the issues related to barefooting and being denied entrance to the Columbus Metropolitan Library. As far as I am concerned, in response she encouraged me to file suit myself. (I’ll admit the possibility that she was only being polite, but she sure sounded encouraging and supportive.)
After the conference, in January of 2001, Greg wrote letters to the ACLU of Ohio reminding them of our attendance at the conference. Here is part of what he wrote:
We believe ACLU involvement will benefit the ACLU in two ways. First, it will extend and clarify the right to receive speech, as outlined in Kreimer v. Morristown, 958 F.2d 1242 (public libraries are designated public forums for receiving speech, and regulations must serve a significant governmental interest). In Kreimer, dictum in a footnote suggested that shoes could be required in a library, but they failed to apply the rules of analysis that they had just finished propounding. Second, here in the 6th Circuit, school dress codes are much more repressive than in many other Circuits, due to a lack of recognition of a right of personal appearance. We believe that our situation is a prime candidate for establishing that right, without the court having to apply any balancing test about minors (Gfell v. Rickelman, 441 F.2d 444 (6th Cir. 1971)), or public employees (Kelley v. Johnson, 425 U.S. 238 (1976)). A fully established right of personal appearance could be quite helpful in cracking open any other school dress code cases.
We are seeking the full support of the Ohio ACLU in forcing this change, including litigation if necessary. When we talked to Ms. Link at the conference, she suggested that we might be able to do this pro se. While we are not necessarily adverse to this idea, we feel that we would need proper coaching from ACLU legal personnel to have any chance of success.
Greg’s letter was totally and completely ignored by the ACLU of Ohio.
After some incidents of being tossed from the Library, I filed my lawsuit against them on April 3, 2001. As folks are no doubt aware, I lost at the trial court (in federal court) level. When it came time to file my appeal to the Sixth Circuit Court of Appeals, I again contacted the ACLU of Ohio asking for support in the form of an Amicus Brief. I was ignored. (I should also add that their procedure for asking for help seems to be designed to heavily discourage people.)
I lost again at the appeals level (and, as I’ve mentioned before, that federal appeals court simply made up evidence that things like urine on the floor was somehow hazardous to a barefooted person). So, I decided to submit a Petition for a Writ of Certiorari to the United States Supreme Court (which is how one tries to appeal in the federal court system).
Again, I wrote to the ACLU of Ohio for an Amicus Brief, and again I was totally ignored. No reply, nothing.
Now, at this point I need to say something about how the ACLU is organized. There is the national organization, but then each state organization is an autonomous unit. I’d been dealing with the local Ohio ACLU (and you’ll notice that I always made that clear, above).
Now, through other work I’d done, I had contacts that were involved with the National ACLU. So, I wrote to a person in the National ACLU. I got a prompt and sympathetic reply. However, the National ACLU had a policy not to write Amicus Briefs for Writs of Certiorari. Now, if my case actually was accepted by the US Supreme Court, they would be more than happy to write an amicus brief. So, I filed my Petition on my own. It did get a very favorable write-up by James J. Kilpatrick, but the Supreme Court did not accept my case. So, I have no beef with the National ACLU.
You can understand, though, why I don’t think much of the Ohio ACLU Chapter.
Jump forward now to 2007. I also work with the Naturist Action Committee (in fact, they were the contacts I used above). I’m an Area Representative for them, which includes being their local coordinator with their Ohio lobbyists, and sometimes even lobbying myself. (As an aside, as part of this, language that I wrote is now part of the Ohio Revised Code—well, I think that’s rather cool.)
In 2007, a woman named Lorien Bourne was arrested for having a topless picnic in Bowling Green. Now, it turns out that it is legal for women to be topless in public in Ohio; instead, they charged her with disorderly conduct. NAC got involved after she lost her appeal (this was the first we’d heard about it, aside from when Lorien first asked NAC about it long before her picnic).
NAC decided that they wanted to write an Amicus Brief to support Ms. Bourne in her attempt to get the Ohio Supreme Court to take the case. The organization that decided to handle her appeal was the ACLU of Ohio.
So, I attempted to contact their Legal Director handling the case to offer our support of an Amicus Brief. NAC had a unique perspective to support Lorien Bourne, in that we had been instrumental in stopping the Ohio General Assembly when they had attempted to make topless illegal in Ohio.
After a few unanswered phone calls, and unanswered emails, I finally got a reply:
I don’t mean to be brusk, but I don’t see that there’s anything we need to discuss. Ms. Bourne’s Notice of Appeal and Memorandum in Support of Jurisdiction will be filed on December 10. If your organization is intending to file an amicus supporting Ms. Bourne’s request to be heard it is due the same day. It doesn’t require any authorization from me, and I’m not sure it is you wish to coordinate. Obviously you’ll need to have an Ohio licensed attorney prepare and sign the document.
When you have one, I’ll speak with that person if there seems reason to.
This is just plain old stupid. I don’t know if he somehow knew of my barefooting efforts and that influenced him, but even that is no reason to reject help. Any reasonable attorney would jump at the chance for an Amicus Brief, particularly when we knew, and were involved with, the history of the relevant statutes.
Regardless, I wrote NAC’s Amicus Brief, and you can see it, and the ACLU’s brief, at the Ohio Supreme Court’s website. Here’s the docket. (You won’t see my name there—it had to be filed by a licensed Ohio attorney, so I basically ghost-wrote it.) Also of interest is a comment that came from a federal prosecutor:
I wanted to send my compliments on the well written and researched amicus brief. I believe it states the case much better than the appellant’s, and should carry the day.
Interestingly, while the Ohio Supreme Court denied jurisdiction, there were two dissents to that, which is pretty extraordinary. I’d like to think that it was my brief that led to getting even that level of acceptance. Yet, the ACLU of Ohio was deaf to that or anything having to do with me.
Now let’s come to today. Before I appealed to the Ohio Supreme Court, I emailed four people in the Ohio ACLU, including Christine Link, their Executive Director and their current Legal Director. I heard back from them nothing.
This is really sad. In an alternate universe, I could have really been helping the Ohio ACLU. I could have been a really good resource; I could have contributed the kind of legal and legislative expertise that I have gained, just as I have done for NAC. Instead, at every opportunity, they’ve ignored me, and even spurned me. That’s just plain old incompetence. It’s their loss.
What’s even sadder, it has been our loss. It has been liberty’s loss.
I think you’ll excuse me if I don’t think much of the ACLU of Ohio.