Half a century ago, in October 1970, I became the executive director of the ACLU. I had a wish list, and foremost on the list was the establishment of a Women’s Rights Project.
 
I had been involved in a few women’s rights cases in my previous post as director of the New York Civil Liberties Union. My wife, who was a young corporate executive at a time when not many women held such posts, encountered discrimination against women on a regular basis. Most importantly, a feminist movement had been reborn in the late 1960s, and I wanted the ACLU to be part of it and to contribute expertise in litigation. Though the era of the Warren Court had just ended, and our prospects for extending constitutional rights to those previously denied such protections were drastically curtailed, I thought the re-emergence of a feminist movement might be the chance we needed to succeed in promoting women’s rights.
 
The ACLU board readily endorsed the establishment of a Women’s Rights Project (WRP). The next hurdle was raising the funds for it. The ACLU had only recently established a tax-deductible entity that could receive foundation grants, and it took me a while to get funding.

When I got the funds we needed, I began a search for a director. I heard that the New Jersey ACLU had secured the volunteer assistance of a professor at Rutgers Law School who had done excellent work. Her name was Ruth Bader Ginsburg. I called her to arrange an interview.
 
Ruth impressed me when I met her, but what really captivated me was the quality of her written work. Her legal pleadings and briefs were powerfully argued and beautifully written, and the dominant theme that emerged from them was that women and men should not be limited by sexual stereotypes. Men could be nurturing parents and caregivers, women could be breadwinners, and both were entitled to equal treatment.
 
I offered Ruth the post of director of the Women’s Rights Project, but ran into some difficulty. Columbia Law School was intent on appointing a woman to be its first tenured female faculty member, and they had offered the post to Ruth. She wanted to accept.

Fortunately, I knew the dean of Columbia Law School, Michael Sovern, who subsequently became the president of the university. Mike had been the youngest full professor in the university’s history and became dean about the same time I became the executive director of the ACLU.
 
While I was still at NYCLU, Mike served on its board. He had played a leading role in equal rights litigation involving race discrimination, and shared my interest in seeing the courts deal with sex discrimination. We agreed to an arrangement allowing Ruth to take on both roles, as she wanted: Columbia Law School’s first female tenured professor and the founding director of the ACLU’s Women’s Rights Project. We shared her salary. With Dean Sovern’s support, Ruth was able to spend most of her time at the ACLU while extending Columbia Law School’s tradition of being foremost among the country’s law schools in fostering equal rights.
 
I also wanted to hire another lawyer to help launch the project. Ruth was already active in promoting women’s rights as a legal scholar, but she was not an activist in the emergent feminist movement. I wanted someone who would make sure WRP would be well connected to the movement. Also, at the outset, I was unsure of how much time Ruth would have to devote to her duties at Columbia. We ended up hiring Brenda Feigen, a well-known activist in the feminist movement, who became Ruth’s co-founder of WRP. As it turned out, I need not have worried about Ruth’s lack of credentials in the feminist movement. The activists soon discovered the groundbreaking impact of the litigation she led with the project.

One of the places where I sought funding for WRP was the Ford Foundation. Initially, this was a failure. The Ford Foundation rejected a number of proposals I submitted. When I went to see the foundation’s president, McGeorge Bundy, it went very badly. He yelled at me during most of our meeting. Bundy had been national security advisor under Presidents John F. Kennedy and Lyndon B. Johnson, and was a principal architect of the Vietnam War. He was angry with me because I had been on television defending the rights of those protesting against the war.
 
It turned out, however, that a couple of the foundation’s program officers at Ford, who were just starting to propose grants in the women’s rights field knew about Ruth’s groundbreaking litigation in the field, and they wanted to get involved. They helped convince Ford to make a grant to WRP. I was eager to accept the grant not only because of the support it would provide for WRP, but because it could open the door for Ford to support for other projects. But Ford imposed a condition: Women’s Rights Project could not support abortion rights. 

This posed a dilemma. The ACLU was already deeply involved in pursuing the right to an abortion and we intended to continue. On the other hand, I was reluctant to give up our breakthrough at Ford. I decided to establish a separate Reproductive Freedom Project to operate alongside WRP, funded by John D. Rockefeller III instead. I hired a young lawyer, Janet Benshoof (who recently passed) as director, and she and Ruth became close as Ruth advised her on litigation strategy, but did not directly take part in the abortion litigation. The Women’s Rights Project and the Reproductive Freedom Project remain powerhouses that are still fighting for gender equity and reproductive rights today.
 
In later years, I wondered whether this split had worked out serendipitously. If Ruth had been directly engaged in our abortion rights litigation, it might have been held against her in later years when President Carter nominated her to the U.S. Court of Appeals for the D.C. Circuit, or when President Clinton nominated her to the Supreme Court. In addition, Ruth already had enough on her plate challenging sex discrimination.

A not-so-secret weapon of Ruth’s was the unwavering support of her husband, Martin Ginsburg, who was outgoing while Ruth appeared shy and reserved. I later came to believe that her reputation for shyness was not wholly deserved — she spoke only after carefully thinking out what to add to a conversation. When Marty joined Ruth on visits to my home, he would comment knowledgeably on the wines I was serving. I regularly told others that Marty was the most supportive husband I ever met. Though he ran a highly lucrative law practice as a tax law specialist at a major New York law firm, Ruth’s career came first. When she was appointed to the D.C. Circuit, he quit his law practice and accepted a professorship at Georgetown University Law School. He did this because he wanted to ensure there would be no conflict of interest due to his law firm’s extensive list of clients. Marty lobbied hard, and successfully, for Ruth’s appointment to the Supreme Court.
 
Ruth was always intent on giving credit to those who came before her. The landmark case, Reed v. Reed, in which she persuaded the Supreme Court unanimously to apply the 14th Amendment’s guarantee of “equal protection of the law” to discrimination on the basis of sex, was an example. Though they played no part in writing her brief, Ruth identified two feminists on the ACLU board as co-counsel. One was the elderly and famously feisty Judge Dorothy Kenyon, who had been appointed a judge by New York City Mayor Fiorello LaGuardia, long before women were even considered for such posts. The other was Pauli Murray, a gay, Black feminist who was a member of the clergy and a formidable legal scholar. Pauli had long argued that the 14th Amendment should be invoked to challenge sex discrimination.
 
As has often been noted, a number of the plaintiffs in Ruth’s litigation were men. Among them was the husband of a woman in the Air Force, who was denied housing benefits equal to those provided to the wives of men in the Air Force. Another was a widower denied social security benefits equal to what a widow would have received and that would have enabled him to devote himself to raising his young child. These cases exemplified her concern with sexual stereotypes, which she believed harmed men as well as women. By carefully managing her litigation and building legal advances on the successive precedents that she won, Ruth ultimately persuaded the Supreme Court to set a standard of “heightened scrutiny” when considering sex discrimination.

I remember Ruth as a wonderful colleague. I enjoyed opportunities to take her to lunch. One lunch that stands out in my memory was when she had just returned from a trip to China with a delegation from the American Bar Association at the very end of the Cultural Revolution. For the previous decade, China had been closed to the rest of the world, and I was eager to hear from her about what had happened to law, the courts, legal defense, and legal education. I kept her at lunch for a good part of the afternoon. Many years later, when I was traveling regularly to China, I arranged for her to give a lecture on American civil liberties at Beijing University Law School.
 
I last saw Ruth at an event in Washington shortly before the pandemic shutdown. We were only able to speak briefly. In those few moments, she made clear to me how eager she was to survive until a new president could appoint her successor. Given the ravages of the multiple forms of cancer she endured, I think she survived as long as she did through sheer willpower. Though she lived a long, full life with great accomplishments, was able to enjoy her love of the arts, and had an extraordinary relationship with Martin Ginsburg, her greatest supporter, it is our misfortune that she is no longer with us. Her legacy will remain with us forever.

Aryeh Neier, Executive Director (former), ACLU

It is now well known that our country’s widespread use of money to determine someone’s freedom after arrest — a practice commonly referred to as cash or money bail — is harmful, unnecessary, and against the core principles of our Constitution. Over the past several years, a massive wave of political and legal action has taken aim at addressing the tremendous suffering and bad public policy embodied in our cash bail systems. Just this summer, “ending cash bail” was one of the agreed upon policies in the platform released by Bernie Sanders and Joe Biden. Jails are among the most dangerous clusters of COVID-19 transmission, and cause further spread in surrounding communities. The work of diverting people from unnecessary incarceration is thus all the more urgent.

While stakeholders across the ideological spectrum seem to care about addressing the evils of wealth-based pretrial jailing, it remains to be seen whether any of those efforts are actually working. Sadly, our recent study in the Georgia Law Review suggests we have a long way to go even after claiming reform victory.

Alongside two law professors, two computer science students, and a cadre of amazing student and community volunteers, I studied whether bail reform has worked in a state that has heralded numerous “bail reforms” over the past few years. In 2018, Georgia passed legislation aimed at improving fairness in misdemeanor cases, which included requiring authorities setting bail to consider a person’s finances. Later that year, the 11th Circuit Court of Appeals issued a ruling in a class action lawsuit challenging Georgia jurisdictions’ use of money bail to incarcerate people who are unable to pay to secure their freedom. The court found “presumptively constitutional” a system in which all arrestees, including those too poor to post bail, were guaranteed release from jail within 48 hours of arrest and provided individualized hearings with the assistance of a lawyer.

Our study examined whether the constitutional principles outlined by the 11th Circuit as well as the updated Georgia law were actually being followed in practice. Examining a representative sample of 51 Georgia counties through court observations, review of court records, interviews, and surveys of court and jail staff, we assessed each county’s compliance with legal mandates required by bail reform.

What we found was disheartening: Not one of the counties studied was in full compliance with the law, as none of them practiced all four of the legal requirements we studied. Most counties only satisfied one or two of the requirements, and many failed on all four:

1. Evaluation of the individual’s ability to pay when setting bail (48.7 percent of counties studied were in compliance)
2. Holding of an individualized bail hearing that evaluates a person’s finances within 48 hours of their arrest (41.3 percent)
3. Guaranteed release within 48 hours of arrest of a misdemeanor (8.3 percent)
4. Availability of public defender when bail is set (11.9 percent)

Among the 18 counties for which we tracked jail-inmate registries from May to November 2019, 36.7 percent of those arrested on new misdemeanor charges only, with no other holds, spent three days or more days in jail. The average jail time was 8.7 days.

Although the results suggest that, on the whole, Georgia courts are not adhering closely to either state or federal law, a handful of counties appear to be headed in the right direction. Many judges, sheriffs, and court administrators are aware of recent legal developments and are making serious efforts to eliminate unnecessary detention. On the whole, however, even those promising jurisdictions need to either provide their post-arrest processes more quickly, and/or take the ability-to-pay inquiry one step further to assure release for those who have not been able to post bail by the time of a hearing.

Our findings should be a wake-up call to everyone who cares about fairness and positive change in our criminal legal system, both in Georgia and across the country.

My colleagues working on issues of racial and criminal justice in Georgia note the significance of our findings, observing firsthand the disconnect between the law and practice in the context of bail reform.

“The ACLU of Georgia regularly receives reports about incarcerated people accused of misdemeanors who are stuck in jail because they cannot afford their bonds,” said Kosha Tucker, staff attorney with the ACLU of Georgia. “Many of these reports come from incarcerated people who are under the jurisdiction of local municipal courts, and this is particularly concerning because indigent defendants in municipal courts often lack access to counsel who could argue for their release on nonmonetary conditions.”

Of course, our study wasn’t perfect. In most places, pretrial justice suffers from a lack of robust data collection, and court proceedings are rarely recorded. Studying this issue is even harder in states like Georgia where the courts and jails are locally run. (To boot, Georgia has 159 distinct counties, each with their own criminal legal system.)

Even so, this undertaking — the first of its kind to our knowledge — has huge implications for the work of advocacy groups, including the ACLU. After all, we lobby for changes in the legislature and use the courts to correct injustice every day. While these are important levers of change, no one’s work is done until those changes are realized in the very places they most counted to begin with: courtrooms and communities where poor people and people of color are being subjected to cruel and unfair incarceration and removed from their families all while presumed innocent, every day.

As a deadly pandemic rages through the country, and jails in particular are dangerous hotspots, it’s of critical importance that reforms are followed, not ignored (and certainly not walked back). If local officials merely followed the existing law, we would have fewer people in jails and would lessen the spread of the pandemic. Indeed, one of the counties studied for our report, Clayton County, which was not providing all the protections required by law, is now the subject of an ACLU lawsuit for its failure to protect incarcerated people from COVID-19.

As the election approaches, those who care about fair process in the criminal legal system should ask candidates for sheriff’s offices and local judicial positions for their stances on cash bail and pretrial incarceration. These positions carry a tremendous amount of power in ensuring laws are implemented and progress is maintained. (And Georgians interested in preserving a fair upcoming election can volunteer with the local ACLU as poll workers.)

Read the full study “Boots and Bail on the Ground: Assessing the Implementation of Misdemeanor Bail Reforms in Georgia” in the University of Georgia Law Review here.

Andrea Woods, Staff Attorney, ACLU Criminal Law Reform Project

My wife and I have made music together for the past 8 years, in an independent band named Unsung Lilly. We are passionate about creating epic, empowering pop music.

As a same-sex couple, we have been heartened recently by the improved representation of LGBTQ people on television, and we are grateful that most people we meet are accepting of our relationship. It’s enough to make you think that maybe society has fully accepted that ‘love is love.’
Unfortunately, our recent experience with Facebook suggests otherwise. When Facebook’s platform refused to allow us to fully express ourselves as both artists and a same-sex couple, it brought back painful memories of discrimination against the LGBTQ community.

Like all musicians, COVID hit us hard. We lost all our income, and because we were in the United States on work visas, we were unable to claim unemployment benefits without risking our visas.

We were in a difficult spot, and we turned to our community on Facebook for help. We asked our fans to join our Patreon community and go behind the scenes of the creation of our new album, in the hopes that their support would keep us afloat in these unprecedented times.

We posted a video on Facebook, announcing our new album and encouraging fans to join our Patreon page. We made it a sponsored ad so we could reach as many of our fans as possible.

The ad, unfortunately, was rejected. While this happens sometimes, I couldn’t believe it when I saw the reason: Facebook had labeled our video as containing “adult sexually explicit content.”

Assuming there must have been a mistake, we sought multiple appeals and resubmitted the ad several times, but each time received the same rejection message.

We wracked our brains wondering what could be sexually explicit about our video…and then realized that it might be the image of us early in the video. It’s a romantic image of us with our foreheads touching. We use the image for all our profile photos across all platforms because we believe it’s a beautiful artistic shot of two people in love. You can watch the video here.

When we talked about what happened on our social pages, many of our friends and fans shared our outrage. Some people even came up with possible explanations for why the ad was rejected. These ideas included theories such as “Facebook doesn’t allow intimacy of any kind in their advertisements, it would have been the same with a hetero couple,” and “what about the nature of some of the dancing shown later in the video.” We wanted to understand why our ad was rejected. So, we ran a test. We posted another ad with the exact same video and copy, but we changed the photo of us to a ‘nonromantic’ photo. The ad was approved.

Next, we tried the same video and copy but replaced the photo of us with a picture of a heterosexual couple in the same romantic pose.

Guess what? The ad with the heterosexual couple was approved too.

https://www.youtube.com/embed/uzOTT2FwGow

The ACLU helped us contact Facebook. The company claimed the ads were rejected ‘incorrectly’ and assured us that the rejection had nothing to do with the LGBTQ content, but rather the dancing in the video. They would not explain why the ad with the exact same dancing but with a heterosexual couple was accepted in our tests.

If Facebook is restricting LGBTQ content because Facebook’s systems consider our kind of love to be “adult” and “sexually explicit”, that means they are actively erasing the LGBTQ experience and silencing LGBTQ voices.

As members of the LGBTQ community, we know how important it is to see ourselves represented and reflected in the media. Visibility can save lives, particularly for transgender people, LGBTQ people of color, and youth.

Women are often over-sexualized, and female couples even more so. Two women in love, gently resting their foreheads together is romantic—not sexual. By rejecting images like this, Facebook is reinforcing the hyper-sexualization of women and female couples.

When we spoke on social media about our experience, other LGBTQ people shared similar stories of being censored by Facebook. These are not isolated incidents. In fact, we learned that Facebook has a history of censoring LGBTQ advertisers. And Facebook’s problems are not limited to the LGBTQ community, Black creators documenting police violence have recently seen their pages temporarily taken down completely. Facebook calls these “mistakes” but isn’t doing enough to stop them from happening again.

Facebook is a platform that claims to connect people, so why does their platform silence LGBTQ voices and prevent them from connecting with their communities? Facebook has a responsibility to represent everyone in a fair and just manner. That means addressing how the LGBTQ community can feel at home on Facebook when the platform appears to discriminate against members of our community for showing who we are.

Today we join the ACLU of Northern California in calling on Facebook to take the following steps:

1. Audit Facebook’s Community Standards and Advertising Policies. 
   Facebook should commit to an audit of its community standards and advertising policies, looking specifically at whether standards for “adult” content disproportionately remove content of women and same-sex couples.
    
2. Real Removal Transparency. 
   Facebook’s message about our ad violating the rules was confusing and unhelpful, which prompted us to design a test to determine what happened. Facebook should tell all users exactly what about their content purportedly broke the rules.
    
3. Meaningful review of a contested removal. 
   We were privileged to have contacts at the ACLU who could reach out to Facebook on our behalf, but that shouldn’t be necessary. Facebook should commit to ensuring that appeals are taken seriously, carefully considered, and communicated effectively to users.

Sera Golding-Young