Remembering Al Bendich

Al Bendich passed away.

That’s not the news you want to hear on your first day back at the ACLU in the New Year.

Al Bendich was the ACLU of Northern California’s staff counsel from 1957-1960 and continued to be a dear friend, teacher, and supporter of the ACLU for the rest of his life.

Howl for free speech

During his time at the ACLU, he argued the landmark Howl case, defending City Lights bookstore owner Lawrence Ferlinghetti from prosecution when he published Allen Ginsberg’s famous poem. His impact on Howl and many other cases was critical to protecting the free speech that we exercise today.

Al Bendich's ACLU work on free speech, privacy, and equality may be fifty years old, but it laid the foundation for the rights we have now. He will be remembered for what he did for the First Amendment, as described by his friend Ronald K.L. Collins.

An equally deep interest he had was economic inequality. He grew up in the Great Depression, so he carried with him a lifelong concern about poverty, inequality and the concentration of wealth and power – and the threat that poses to our democracy.

He lived through and spoke up in the McCarthy era, so he had a keen sense of the ways the government can intrude on people’s privacy and abuse its power to suppress ideas and free association.

He was at the front end of a new generation of advocacy concerning the intersection of race, poverty, and privacy, bringing a novel case to limit the power of police to raid and search the homes of people who were on public assistance.

At a time when so many in our country are engaged in protest, when economic inequality is at a peak, when our privacy is intruded upon at a scale unimaginable even by Joseph McCarthy, and when the abuse of power by police is so front and center, the work and life of Al Bendich is part of our legacy.

After five years of visits with him where I benefited from his kindness, wisdom and encouragement to think more deeply, I invited Al to speak last March at a gathering of ACLU supporters. I’ve included excerpts from the transcript of that conversation between Al, myself, and my colleague Senior Staff Attorney Julia Mass—to which I made only small edits for clarity—below.

Freedom of Speech. Privacy. Equality in all its forms.

Al was a quintessential ACLU leader because he held all these principles and values equally and saw how they fit together. He was helping us think through these very issues today.

I saw Al twice more in the nine months after that talk until he passed away. He was very busy with the release of the last Hobbit film. We had hatched an idea a few years back, that when the trilogy of the Hobbit was done, we would make him some space back at the ACLU office.

He knew how busy we are at the ACLU every day with timely and urgent work, but he encouraged us to take time to think and reflect. What I loved about Al was that he did not reduce difficult questions facing our country and world to simple slogans, and neither should we. So that was our vision, that after a 57 year “sabbatical” as staff counsel granted to him by Ernest Besig and extended by Ernie’s successors, including my friend Dorothy Ehrlich, that I would greet him back at the office as friend, teacher and advisor to serve not as staff counsel, but as counsel to our staff.

Al inspires us to think more deeply. And he inspires the next generation of our work to advance the constitution and the country that he loved and made better, more free, and more equal.

Thank you for your counsel Mr. Al Bendich.

- What follows is a conversation with Al Bendich (March 2014) with notes from Abdi Soltani in italics. -

How did you get your start in civil liberties?

Al Bendich: I got my law degree in 1955 and of course I remember the McCarthy era. I was a student in economics. And the reason I was interested in economics is that I had grown up in the 30s in the depth of the depression. And people looking for something to eat in garbage cans and asking if there were pennies that could be provided to them and they would do some work. That struck me as something to be corrected and what the causes might have been and how those problems could be resolved and cured. So I was in a class taught by a professor named Robert E. Brady. That was 1948 or 1949. This was the class in economic thought… And he wrote a book called “Business as a System of Power.” He was leaning back in his chair. He put his arms behind his head and he said, “I’ll wager that I can identify the FBI man in this room.”

When the Professor said FBI man in the room, he was not referring to continuing education for our law enforcement professionals, he was talking about surveillance in the university classroom.

What was the ACLU like in 1957?

Al Bendich: I had applied for the job and got it in September of 1957. I replaced the staff counsel, a fellow by the name of Lawrence Speiser. A wonderful, wonderful man. The executive director was a wonder man named Ernie Besig. And I was proud to be working with him because he was a person of great courage. He had worked with labor organizing in the Central Valley in California when the ACLU of Northern California was formed and he became executive director. He was against the expulsion [of Japanese Americans]… and fought for the condemnation of Japanese Internment. And Wayne Collins who was a volunteer took Fred Korematsu’s case to the United States Supreme Court. We had no books. No library. So I went to the Mills Law Library to do my research.

I want to make one other point. It’s incredibly invigorating and wonderful to see people like this here because we didn’t command crowds like that in those days!

At this point, of course, Al got applause from the crowd. His was quite good and subtle at flattery, and being an ACLU supporter and being recognized by Al Bendich is something that will be a crowd-pleaser for sure! At this point, Julia Mass talked about some of the ways surveillance is unfolding in our communities today, and she talked about the Suspicious Activities Report program as one example.

Tell us about McCarthy era surveillance

Al Bendich: It’s been 57 years since I was the ACLU attorney. Is it better?

So 57 years ago things were a bit different but in many ways very similar. In terms of surveillance, you had people who were asking others to sign loyalty oaths and to sign oaths of non-membership in so-called subversive organizations. And this—just as in the story that Julia just gave us—pitted people against each other in a totally undemocratic fashion. That is to say, a democratic fashion requires of us that we reason together and propose policies that we think are in the interests of not only our particular group, but also of all people. And so for example, I was incredibly proud to hear …[about the advances for marriage equality] as sexual oppression is just another aspect of people not treating each other as equal humans.

So… in the days when I first joined the ACLU, the first job I had was the Howl case. This was a case which involved the prosecution of Lawrence Ferlinghetti and the man who worked for him for selling a poem. And the poem was supposed to be obscene. And the obscenity was searched out by someone who was perhaps a police agent in the same way in those days homosexuality was searched out. We represented the Mattachine Society and the Daughters of Bilitis. There were police officers sitting in public toilets [to catch] people who were having some kind of sex that was not approved. This was another example of surveillance.

I produced copies of the ACLU News from 1957-1960 full of articles about the House Unamerican Activities Committee (HUAC).

Could you talk more about HUAC?

Al Bendich: Sure. HUAC was going around the country subpoenaing people. And you may remember Senator McCarthy who would talk about hundreds of people in the state department that were communists. He was quite facile with numbers.

There were all kinds of committees doing investigations. We had state committees. We had a committee in California. And we had the senate committee. The internal securities committee. The house personnel activities committee. The House Committee came here to California and subpoenaed a large number of people. And a lot of them came to the ACLU and asked to be represented. And of course, we offered to represent them, but there was only me as staff counsel and I could not represent everyone. We went around trying to get volunteer attorneys.

There was a young attorney that worked in the Mills Law Library and we became friendly and his name was George Moscone (and later he became Mayor of San Francisco) and I asked him if he would be interested in volunteering and he said of course. And we were representing people and for the most part people were taking advantage of the 5^th amendment protection against self-incrimination when they were being asked about associations and various organizations because they didn’t want to cooperate with the Committee and [wanted to] protect themselves against possible loss of jobs and other real losses. And perhaps even some kind of criminal prosecution.

The right of association which is a first amendment guarantee was being invaded by all of these kinds of committees and loyalty oaths and secret police and so they invoked the 5th amendment which came from the English Revolution of the 17th century when people were tortured to give evidence against them and 5th amendment became then an obstacle to torture. There were others that were sufficiently brave and were willing to take the risk of invoking the first amendment and we represented all of those folks.

And one of the things that happened, I think, was that there was a sort of mobilization of feeling within the city of abhorrence of what this committee was doing. When they left, they didn’t leave honorably or in good order.

The idea of people running HUAC out of San Francisco drew another applause from the crowd. At this point my co-worker Julia Mass talked about the dimensions of how surveillance relates to the first amendment today. She talked about our case on anti-war.com, and welcomed one of our clients Eric Garris.

How has the state of surveillance changed over 57 years?

Al Bendich: Police are not going through book stores anymore looking for obscenity. And they are not trying to track people who are engaging in sexual practices that they don’t approve of. That has changed.

Technology has also changed. Given what the NSA can do and what Edward Snowden has done, we have a much more daunting problem to deal with. One of the aspects of the problem is government secrecy, which is to say, if we as citizens don’t know what our government is doing, how can we have an opinion of it and how can we call ourselves self-governing. What is the appropriate relationship for us as citizens and the people we elect as our government? Are they our servants or are we their servants? The First Amendment says Congress shall make no law abridging the freedom of speech. There’s a reason for that absolute. There’s a reason for that cut off.

Because unless people are free to think, to form opinions, to discuss those opinions with each other, to seek to become educated, to seek to educate others to try to understand the principles of making progress of what freedom is, of how we can expand our freedom, unless we have the opportunity to do that, then, we are not self-governing.

And what the constitution is about and when we are trying to work with the legislatures and the courts and with each other to protect the constitution and to advance it, that is to say, to further realize the implementation of principles embedded in that constitution, we have to spend time trying to reflect on its history. How did we get that constitution? What existed before the constitution? After all we can’t get there without looking at the revolutions of the 17^th century in England. The revolutions of 1640. Unfortunately this isn’t taught in school. Maybe in a graduate history course.

Let me interrupt Al at this point and tell you what was going through my head: wow Al, that’s deeper learning. His vision for education was not just that we learn our constitution, but that we understand its origins.

Back to Al Bendich: And the reason it is so important as I mentioned one of the reasons is the origin of the 5th amendment [and the obstacle it placed on torture]. The other reason is that in that period began to depart from absolute governments. And we went toward liberal governments. We were getting rid of monarchy, absolute monarchy. And we were going towards a degree of representation. And we’ve increased the quality of representation ever since and what does it take for that to be real. In the 17th century there were enormous numbers of pamphlets and when our constitutional convention was being held and when the constitution was being debated, there were enormous numbers of pamphlets. People were talking to each other. What was this about? Where were we going and why?

At this point the crowd broke into another applause. And he continued.

And so what we need to do is to reeducate ourselves. We have to do our homework and study some history; pay attention to what our origins are. What the principles of our society really are and ask the hard questions. What furthers those principles? What undermines them? The ACLU is about protecting us from the undermining procedures that are all too common.

What about the ACLU inspires you now?

Al Bendich: Well, the organization is really dedicated to protecting our civil liberties. What the constitution does is to set up a framework for that protection and our organization defends the constitution in that respect and opposes anything that turns the constitution into an instrument of suppression of that liberty.

What am I impressed by? The vast number of subjects that the ACLU is involved with today. It’s a far larger agenda than we were able to attend to in 1957. I’m proud of that. I think this is very important. I think this has to do with the expansion of the concept of liberty. For example, one of the things that has happened is today sexuality, whether it’s in the form of [its treatment as] obscenity or in the form of same sex relationships, is in a complete different place than what it used to be and that has been a result of an expansion of freedom.

This is an expansion of liberty. This is a more full realization of what it means to be a free citizen.

I’m trying to think of the ways in which things are not better. For example, inequality of wealth today is far worse than in the 50s and 60s. Now we are back to 1929 in terms of inequality. And inequality has a price. It bites in a number of different directions. So Citizens United, for example, is about the ability of corporations to influence our political liberties.

When we ask the question, why do some have a louder voice than the rest of us? The answer is obvious. There are only 400 billionaires and – there’s a disconnect in terms of power. The discrepancy in power and what it means to be a citizen in the free society. We should pay attention to that.

In the 50s working people had a lot more representation in terms of trade unions than we do today. It was in the 30% range and today it’s 6 or 7%. What does that do to freedom of expression and education and the representation of interests of a large proportion of the American people? So all of these are inter-related and what we have to do is try to understand that relationship and try to expand freedom. Try to expand liberty and understand that a greater degree of liberty for some is not an expansion of constitutional liberty.