By Maureen Hayden
CNHI Statehouse Bureau
The contents of Ken Falk’s office tell a story about what it’s like to be the state’s leading civil liberties lawyer.
He has a drawer full of hate mail along with thank-you notes of gratitude, a shelf of rocks that were thrown through his window, and a goose-quill pen from the counsel table inside the U.S. Supreme Court in a frame hanging on the wall.
The last item is a reminder of a case he argued in front on the nation’s high court in 2000 and the ruling handed down in his favor: The justices found it was unconstitutional for Indiana police to set up roadblocks and pull over motorists at random to conduct drug searches. The court called the practice a violation of Americans’ right to privacy.
Falk, 58, is the legal director of the American Civil Liberties Union of Indiana. He’s brought many high-profile cases that have infuriated some people along the way. His clients have included the Ku Klux Klan, the NAACP, Planned Parenthood and anti-abortion protesters.
But the 2000 roadblock case is one of his favorite to talk about because it illustrates, he said, how “we tend to take our constitutional rights for granted till we lose them.”
Falk had filed the case as a class-action lawsuit, argued on behalf of all citizens of Indiana. “The interesting thing about that case,” Falk said, “is that I received calls from people who said, ‘I never thought I’d call the ACLU about anything except to yell at you. But nobody is going to stop me in my car.’ ”
Falk and the ACLU have represented children, the disabled and other sympathetic causes that don’t get much press. But the story about the roadblock case is a good one to tell when Falk finds himself involved in cases like the ones that have made headlines in recent weeks.
Representing a sex offender who was mistakenly labeled a “violent sexual predator” by the state, Falk convinced a federal appeals court to declare Indiana’s sex offender registry unconstitutional because it violated due process. The same day that decision came down, in late August, Falk was in federal court in Indianapolis representing John Walker Lindh, the so-called American Taliban fighter convicted of aiding terrorists during the 2001 U.S.-led invasion of Afghanistan.
Lindh, a Muslim housed in a special unit at the federal prison in Terre Haute, is suing the federal government to overturn a prison policy that prevents him and other detainees he’s housed with from performing their five daily prayers as a group.
Falk argued the prison policy violates Lindh’s religious freedom. Government lawyers argued prison officials would be crazy to allow Muslims convicted of terrorism and other crimes to gather together several times a day. A ruling on the case is pending.
Falk understands the Lindh case may be upsetting. He’ll candidly admit that it wasn’t easy for him personally to represent the Klan when it wanted a permit to march. The Klan’s “white supremacy” message is hard for Falk, who is Jewish and the father of a biracial child, to stomach.
But the job of the ACLU, he argues, is to defend the principles of civil liberty granted by the Constitution and Bill of Rights, without an eye toward how unpopular or unappealing the holder of those rights may be.
Falk’s colleagues often borrow a favorite quote from him to explain their work. It reads: “The beauty and timeless value of the rights safeguarded by the Constitution is that these rights are not contingent on popularity or majority approval. The rights stand on their own, regardless of who is asserting them.”
Falk sees his job as an ACLU lawyer to make sure those rights keep standing.
“One of truly remarkable things about America is the Bill of Rights and our judicial system,” he said. “We don’t even stop to think about this, but it’s just remarkable that you or I can go to court, whomever we are, and say, ‘my rights are being violated’ and there is someone who listens.”
Maureen Hayden covers the Statehouse for the CNHI newspapers in Indiana. She can be reached at firstname.lastname@example.org.