City Journal Home.      
Winter 1992
   
The Assault on Public Order: How the Civil Liberties Union Goes Astray
James Taranto, William A. Donohue
EMAIL
RESPOND
PRINT
SHARE

William A. Donohue is chairman of the department of sociology at La Roche College and author of The Politics of the ACLU and The New Freedom. James Taranto is associate editor of The City Journal.

Norman Siegel has fond memories of his youth in Brooklyn—and of his earliest clashes with authority. “There’s a kind of zaniness and spirit that I got by growing up in Brooklyn, standing on the street corner and singing Doo Wop,” he says. “That was my first experience with police misconduct. They always told us to get off the street corner because it was 11 o’clock at night. They’d say people were making complaints, but we’d ask the people in the neighborhood if they made complaints. There weren’t complaints. [The cops] just didn’t like our rock music; they didn’t like us hanging out on the street corner... But we had nowhere else to go.”

Siegel may not have been able to find out who was complaining about him three decades ago, but today it is easy: As the leading opponent of the city’s efforts to combat public disorder, the 47-year-old executive director of the New York Civil Liberties Union (NYCLU), the state’s ACLU chapter, has become one of the most controversial men in New York, antagonizing politicians, community leaders, police, and even some of the ACLU’s traditional supporters.

Siegel’s strident activism, combined with the ever-present threat of legal action, has made the NYCLU a powerful obstacle to city officials’ efforts to keep public spaces clean and safe. The organization’s involvement in the well-publicized, three-year-long clash over Tompkins Square Park illustrates the NYCLU’s effectiveness and persistence.

During the Eighties, the Lower East Side park became a gathering place for a motley crew of anarchists, skinheads, squatters, and other belligerents, as well as a camp for homeless people. On the hot Saturday night of August 6, 1988, a “squatters’ concert” was held at the park, featuring local rock bands such as Public Nuisance and Letch Patrol. Things got out of hand, and a riot erupted between protesters and police who had been called in to keep the peace. Fifty people were injured, 31 were arrested, and 121 filed complaints of police brutality.

The following Monday, some four hundred Lower East Side residents met at St. Brigid’s Church on Avenue B and East Seventh Street. Siegel was there, bringing tempers to a boil by denouncing the “police riot” and urging his audience to find out “who gave the order to send the cops into the crowd to beat” the demonstrators.

Siegel called for a march on the Ninth Precinct, which went off two days later and, according to Newsday, drew about four hundred “yippies, hippies, punk rockers, anarchists, communists, a few homeless people, and members of the sizable squatters movement.” Siegel led the marchers in the chant “Free the Park,” although some improvised their own slogan: “Kill Cops!”

The police, subject to such unrelenting criticism, were unable to quell the disorder and sporadic violence that plagued the park during the next three years. Finally in June 1991 the Dinkins administration closed the park for a renovation that had been planned for some time. Siegel was outraged. “The closing of the park represents the visible failure of the Dinkins administration to address serious urban problems,” he said. In an interview, he elaborated, saying that he believed the park could have been cleared by improving social services for the homeless: “People would leave voluntarily if [the city provided] even one floor of a shelter, and let the homeless people, in association with the Human Resources Administration, manage it.”

The battle to close the park left Robert Rohn, a Lower East Side community leader, furious with Siegel. “We can’t make a move down here on the Lower East Side without first clearing it with him,” Rohn said. “He’s not an elected official, yet he has managed to thwart the city’s plans with his ridiculous lawsuits on behalf of the city’s lowlifes.”

Although the NYCLU never actually went to court over Tompkins Square Park, Siegel’s position on the matter reflects a familiar pattern. What most people regard as social disorder, civil libertarians frequently construe as expressions of individual freedom; society, in their view, may enforce standards of public behavior only extremely sparingly and with layer upon layer of safeguards against potential abuse.

But even as the NYCLU defends those who defy social norms of behavior, it also demands that the government provide its clients with generous social services. The NYCLU (along with the Southern California ACLU chapter) has been at the forefront of a nationwide effort within the ACLU calling for recognition of “economic rights”—that is, individual rights to government-provided services, such as medical care and shelter. The NYCLU, for example, asserts that there is a fundamental “right to housing,” a position not endorsed by the national ACLU. Thus, according to the NYCLU, local governments are obligated to provide facilities to house the homeless. But the NYCLU also fights for the right of the homeless not to use these facilities, and to occupy and disrupt important public spaces instead.

This conception of “individual rights” places a double burden on society. Taxpayers are forced to pick up the tab for expanded social services, but cannot require the recipients of these services to behave in a responsible and orderly fashion. The NYCLU demands that society not only tolerate but subsidize antisocial behavior.

It is an approach used by other advocacy groups as well. In 1979, for example, the Coalition for the Homeless won a legal settlement recognizing an unconditional “right to shelter” for New York City’s homeless. Such a policy would be socially beneficial if this “right” also entailed an obligation to use the shelter provided, so that citizens could enjoy safe and orderly use of public places instead of finding them strewn with human bodies and wastes. Yet the coalition, like the NYCLU, strenuously opposes efforts to clear the homeless from parks, subways, bus stations, and other public facilities. Some advocates even object to screening applicants for shelter services to ensure that scarce resources are spent only on the truly needy. When Westchester County began doing so in 1989, Siegel demurred, asserting: “The homeless are a fragile and loner constituency that very often likes to be left alone. They value their anonymity and freedom and do not want to be assessed, surveyed, and studied.”

With its rich liberal tradition, New York City is unusually hospitable to civil libertarian ideas. The fact that Michael Dukakis carried an ACLU card did not prevent him from carrying two-thirds of the vote in the five boroughs. But with the bonds of civility in New York frayed by crime, drugs, homelessness, and disorder, and with a stagnant economy and budget crisis making it more difficult to fund social services, there are signs of a backlash against the ACLU and “its libertarian vision of license for all, regardless of the consequences,” in the words of Fred Siegel, a professor of history at Cooper Union (who is not related to Norman Siegel). Fred Siegel, who admires Norman Siegel’s “New York grit and energy,” nonetheless argues that the ACLU “has both reduced the liberties of the law-abiding and undercut faith in the civic institutions, such as the courts, that the ACLU wants to rely on to preserve civil liberties.”

The issue that most galvanized New Yorkers against the ACLU was what has come to be known as the Billie Boggs case, in which the NYCLU represented a mentally disturbed homeless woman seeking to avoid commitment to Bellevue. “When the Billie Boggs case was going on, it was the prime topic of conversation for parents at my son’s Little League games,” says Fred Siegel. “I heard comments like, ’This time they’ve gone off the deep end.’ These were Little League games in Park Slope,” a particularly liberal neighborhood in Brooklyn.

The Boggs case grew out of the Koch administration’s efforts to get homeless people off the streets during the winter. In late 1985, Mayor Koch inaugurated the Homeless Emergency Liaison Project, known as Project HELP. He issued an order authorizing the police to remove the homeless from the streets whenever the temperature fell below freezing. He also relaxed standards for committing the mentally ill homeless to institutions: Previously, only those who posed an immediate danger to themselves or others could be hospitalized; the Koch policy allowed commitment of those who posed such a danger in the foreseeable future. Teams of psychiatrists, nurses, and social workers were sent into the streets to treat the homeless and identify those in need of hospitalization.

The NYCLU’s response was vitriolic. Norman Siegel and staff attorney Robert Levy accused Koch of violating “the rights of countless homeless people who have competently refused to go to a shelter.” The NYCLU fought back, instituting its own “freeze patrol,” which sent out volunteers untrained in psychiatry to inform the homeless of their right to stay put, as well as their right to shelter.

In December 1986, Project HELP’s professionals began receiving reports about Joyce Brown. The forty-year-old Brown, who used the pseudonym Billie Boggs (after radio talk-show host Bill Boggs), had made her home on a Second Avenue sidewalk between 65th and 66th streets in Manhattan. For a period of months, she was observed destroying money and urinating and defecating on the street. Brown, who is black, also shouted racial epithets at black male passers-by and refused all services offered by Project HELP.

Brown was not always down-and-out. Raised in a middle-class home in New Jersey, she had worked as a secretary for more than a decade. But in 1985 her sister had her committed to East Orange General Hospital, where she was restrained and medicated with Thorazine, an antipsychotic drug. Two weeks later she was released, certified as not dangerous” and “not psychotic.”

She soon migrated to New York, where on October 28, 1987, Project HELP staff picked her up and had her admitted to the psychiatric ward at Bellevue. She was examined by five psychiatrists, who diagnosed her as a paranoid schizophrenic. Among other things, they said she was suicidal because she had run into oncoming traffic, and dangerous to herself because her hostility and obscene language might provoke others to cause her harm. They said she was delusional because she responded to questions about her use of the street as a toilet by telling an irrelevant story about events in Connecticut, and because she had torn or burned money she was given by passers-by. She explained that she believed the passers-by were black males (some were not) who wanted to buy sex.

After arriving at Bellevue, Brown contacted the NYCLU. Robert Levy, who became her lawyer, disagreed sharply with the Bellevue diagnosis. “I didn’t think I’d spoken to a mental patient,” he said after their first meeting. “She sounded more like a board member of the civil liberties union.” Levy agreed to go to court to challenge Brown’s detention.

The NYCLU enlisted its own team of psychiatrists, headed by Dr. Robert Gould, professor of psychiatry at New York Medical College. Dr. Gould found Brown’s judgment and insight “slightly impaired,” but said she was generally coherent and logical, not delusional or psychotic. He rebutted each of the diagnoses of the hospital psychiatrists. Burning money, Dr. Gould said, was not an irrational reaction if Brown felt insulted by the manner in which it was offered. Moreover, he quipped, “I put a lot of money in the stock market, and I hope Ms. Boggs doesn’t think I was crazy for getting a burn there.” Brown herself denied having run into traffic, and besides, Dr. Gould pointed out, jaywalking is common in New York. As for her toilet habits, the doctor noted that she was not allowed to use the restroom of the neighborhood restaurant, and thus had no alternative but to use the street. “It’s not nice, but it’s not delusional,” he said.

In short, the NYCLU presented Brown’s behavior as an alternative lifestyle. As Gould and Levy wrote in a New York Times op-ed essay, “It is quite possible to mistake homeless, unconventional, or unaesthetic behavior for serious pathology.”

Presented with the testimony of experts utterly at odds with each other, Judge Robert Lippmann threw up his hands and declared that the psychiatric evidence was inconclusive. He refused to hear testimony from Brown’s sister about her history of mental illness, relying instead on the testimony of Brown herself, whom he found to be “rational, logical, [and] coherent.” Ironically, her credible performance on the witness stand may have been the result of two weeks of hospitalization, which had freed her from the stresses of life on the street. Dr. Albert Sabatini, then medical director of Bellevue’s Department of Psychiatry, testified that it is common for schizophrenic patients to “stabilize” after undergoing treatment.

Judge Lippmann’s ruling was appealed by the city and reversed by an Appellate Division panel. The NYCLU then appealed to the Court of Appeals, New York’s highest court. Meanwhile, however, Bellevue psychiatrists determined that Brown, who remained hospitalized, needed immediate medication. The city petitioned another trial judge for permission to medicate her. A court-appointed psychiatrist agreed that Brown was ill and could be helped by medication, but said that because she had displayed hostility toward the Bellevue doctors, it would be counterproductive for them to medicate her against her will. The Judge accepted the recommendation and denied the city’s request. At that point the city gave up and released Brown. The Court of Appeals then dismissed the NYCLU’s appeal, holding that the issue was moot since Brown was no longer in the hospital.

Legally, then, the case ended inconclusively. The highest court to rule on the matter upheld the city’s standard for institutionalization, and Project HELP continues today. Brown, meanwhile, worked briefly as a receptionist for the NYCLU but left, Siegel says, because she was unable to cope with the job. According to Siegel, Brown now lives in a residence for homeless women and has asked the NYCLU to protect her privacy and not reveal her specific whereabouts. The press sporadically reports sightings of Brown on the street, sometimes making obscene gestures at passers-by.

City officials view the result as a tragedy for Brown. The fact that Brown led a fairly normal life in the past, says Dr. Sabatini, suggests there is a strong possibility she could be treated successfully with psychotropic drugs. Yet the NYCLU regards her personal autonomy—including her prerogative to live on the street—as sacrosanct, outweighing both the social costs of that decision and the cost to Brown herself.

indeed, the chief problem with this radical civil-libertarian approach to public policy is its failure to deal with the social costs that inevitably result from extreme interpretations of individual rights. “In Boggs, one could not argue the case by saying Billie Boggs was offensive,” says Paul Rephen of the New York City Law Department, who was part of the legal team that prepared the city’s case. “Individuals have a constitutional right to be offensive. So you can’t go into court saying that part of the problem when we have homeless like this is that it affects the quality of life in New York City... That is not an issue that the city can argue.”

The legal system, which exists to resolve individual claims, is not well-suited for weighing social costs and benefits. There is no public-interest law group that truly represents the public interest in a case like Boggs; even if there were, “society” would not have legal standing in the case. Because judges often end up serving as the final arbiters on important social issues, a court system receptive to reckless claims of individual freedom can do great social damage by unsettling the delicate balance between the rights of the individual and the needs of society.

The ACLU, both in New York and elsewhere, often seems unconcerned with striking such a balance, instead viewing individual freedom as a trump card that supersedes all concerns of social responsibility. For example:

* Although the ACLU does not believe the Second Amendment guarantees individuals the right to bear arms, Siegel objected to a proposal to evict public-housing tenants who illegally possess firearms. “What they would have to show, in our opinion, would be activity that interferes with other tenants and their rights,” Siegel said. During the first half of 1991, 470 people were wounded and 72 killed by illegal guns in New York’s housing projects.

* In 1989, the Metropolitan Transit Authority approved regulations designed to curb disorder at Grand Central Station. The rules barred smoking, spitting, or littering; washing oneself at a drinking fountain; washing clothing or other personal belongings in a restroom; changing clothes or remaining undressed; lying on floors, platforms, stairs, or landings; occupying more than one seat; and creating unreasonable noise. Siegel labeled the rules “mean-spirited” and possibly “discriminatory against the homeless.”

* The ACLU filed an amicus brief on behalf of Richard Krelmer, a 41-year-old, able-bodied homeless man who spent his days in the Morristown, New Jersey, library. The library had received complaints from patrons offended by Krelmer’s foul stench and his habit of staring at young women. It instituted a set of rules barring patrons who are not reading, studying, or using library materials; who harass or annoy others through noisy activities or by staring; or whose “bodily hygiene is so offensive” as to constitute a nuisance. Federal District Judge H. Lee Sarokin, overturning the library’s rules, declared, “If we wish to shield our eyes and noses from the homeless, we should revoke their condition, not their library cards.”

* In 1988, Alexandria, Virginia, passed an antiloitering ordinance designed to combat drug dealers. Mindful of the potential for abuses in such a law, local officials drew the ordinance very narrowly, making it quite difficult to break: In order to be in violation, one would have to stand on a corner for more than 15 minutes and meet with more than two people in succession for less than two minutes each and exchange small parcels of money and attempt to hide such transactions from public view and have no other explanation for these actions. The ACLU successfully sued to have the law overturned, claiming that it could lead to the arrest of lawyers handing out business cards.

* When Atlanta officials attempted to crack down on loitering, Laughlin McDonald, director of the ACLU’s Southern Regional Office, declared that “wanderers and loafers” have “an honored place in our culture.” “Loafing and loitering, like privacy and many other rights we take for granted, are not specifically mentioned in the Constitution, but they are protected by it. They give value and meaning to life and nurture our sense of independence, self-confidence, and creativity.”

When citizens complain about the disorder that results from extreme positions such as these, the ACLU’s typical response is to blame a lack of social services rather than a lack of social controls. Thus Siegel blames Joyce Brown’s saga on the city’s inadequate programs for the homeless, a position Judge Lippmann echoed in his ruling:

Housing in New York is an expensive commodity, so expensive that in this rich city many can no longer afford it and are driven to live on the street. Who among us is not familiar with the tattered, filthy, malodorous presence of the wretched homeless? The tired, poor, huddled masses need no longer be invited to our shores. Our society has created them at home. The blame and shame must attach to us, not them.

This conclusion, of course, evades a central issue in the case: that Brown fought hard not to accept the services the city offered her. This can hardly be characterized as a failing of society.

The NYCLU is selective in its indictments of society: The plight of the poor is always blamed on insufficient government services. Many respected economists, however, argue that New York’s housing shortage is caused by overregulation—that high property taxes and strict rent controls make it unprofitable to provide low-income housing. Siegel finds the argument irrelevant: “That’s a social issue, not a civil liberties issue.”

Yet where the NYCLU draws the boundary between social issues and civil liberties issues is not always clear. Consider Lizotte v. Health and Hospitals Corporation, a class-action lawsuit that was filed in 1985 by the NYCLU and remains unresolved. In part the suit is clearly a civil liberties case: It challenges the use of allegedly excessive methods to restrain mental patients in city hospitals and demands that adequate medical services be offered to patients who are committed or detained in hospital waiting rooms.

But in pursuing the case, the NCYLU is also acting as an advocate for expanded mental health services. City officials readily concede that overcrowding has been a problem in the city’s mental hospitals and that the NYCLU’s demands are a defensible policy position. To satisfy the NYCLU, however, the city would have to enter into a legally binding agreement committing itself to certain levels of service. “While it may seem reasonable,” says Leonard Koerner, the city’s chief assistant corporation counsel, “to the extent that you have to allocate additional resources in order to satisfy those demands, it means allocating less resources to other areas.”

Koerner likens the NYCLU and other advocacy groups to labor unions. “Their job is to demand as much as they can get, and there are judges here who will accommodate them.” The influence of these organizations on the city’s political culture is pervasive: Even when advocacy groups do not involve themselves directly in an issue, city officials must anticipate and avoid policy decisions that might give rise to costly lawsuits.

Caught in the middle, of course, is the city’s middle class, which must bear the burden of both expensive court-mandated social services and growing public disorder. The result, in the words of Charles Morris, the city’s former director of welfare and Medicaid: “New York City’s current social policy is based on the presumption that you can do whatever you please, and it is the city’s job to pick up after you.” This is no way to run a city that faces problems far more menacing than teenagers playing music on the street corner.

 

 

 
The New York Civil Liberties Union prevents New Yorkers from having safe, orderly public spaces
City Journal Winter 1992.
Click to visit City Journal California
Get the Free App on iTunes


Home |  About City Journal |  City Journal Books |  Archives |  Links
Contact Us |  Subscribe Print |  Subscribe Online |  RSS |  Advertise |  CJ Mobile

CONTACT INFO:

subscriptions: (800) 562-1973 • editorial: (212) 599-7000 • fax: (212) 599-0371

Copyright The Manhattan Institute