David Cole, ACLU Legal Director

Has the ACLU lost its way? This appears to be a perennial question. In 1994, then-ACLU President Nadine Strossen wrote a 17-page article with 54 footnotes, responding to the charge that the organization “is abandoning its traditional commitment to free speech and other classic civil liberties and is becoming a ‘trendy’ liberal organization primarily concerned with equality and civil rights.” Sixteen years before that, in 1978, J. Anthony Lukas wrote a feature for The New York Times Magazine titled “The ACLU Against Itself,” recounting the controversy over whether the group should have represented a group of Nazis who sought to march in Skokie, Illinois. The question is not new.

But the answer remains the same. The ACLU is committed to the principle of free speech today, just as it was in the 1990s, 1970s, and long before that. And we are specifically committed to the proposition that the First Amendment’s guarantees (like those of the rest of the Constitution) apply to all, not just to those with whom we agree. At the same time, the ACLU also remains devoted to defending other fundamental civil rights and civil liberties, including equal protection of the law — as we always have been. Addressing the tensions that sometimes arise between these commitments is not easy. But we seek to do so, today as always, not by abandoning any of our core commitments, but by acknowledging and confronting the conflicts in as forthright, inclusive, and principled a way as we can.

Some have charged that in doing so we have abandoned our fidelity to the First Amendment in the years since our representation of a white supremacist protester in Charlottesville. In that case, we challenged the revocation of his permit to protest the removal of a monument to Confederate General Robert E. Lee. The protest turned violent, the police failed to intervene, and ultimately one of the alt-right adherents, Alex Field, rammed his car into a group of counter-demonstrators, killing one person and injuring 19 others. The Charlottesville tragedy and the ACLU’s role in defending the protesters’ permit led to considerable controversy, inside and outside the ACLU.

In its wake, I led a committee representing a wide range of divergent views within the ACLU in developing guidelines for selecting cases where they present conflicts between values that the ACLU defends. We reaffirmed in that document that “As human rights, these rights extend to all, even to the most repugnant speakers — including white supremacists — and pursuant to ACLU policy, we will continue our longstanding practice of representing such groups in appropriate circumstances to prevent unlawful government censorship of speech.”

At the same time, we acknowledged the costs that can come with that representation, including to other interests and work of the organization, and outlined ways to address and mitigate the costs when we do decide to embark on that representation. That can mean making clear in public statements that we abhor the speakers’ views even as we defend their right to express them, supporting counter-protesters, and investing any attorneys’ fees we obtain in connection with the work to advance the views that the speaker opposed and that we support. Some saw even this document’s acknowledgment of the complexity of such work as an abandonment of principle, but we saw it as an honest effort to confront the challenge of being a multi-issue organization.

Some of our critics argue that by considering the content and impact of the speech in assessing how to proceed, we are walking away from a commitment to all free speech. That’s an ahistorical and overly simplistic analysis of our free speech work: One must consider the content of the speech and the nature of any regulations to assess whether a First Amendment claim is likely to prevail. Thus, we considered the content of speech in choosing to defend the Nazis in Skokie in the 1979; in representing NAMBLA when it was sued in 2000 for allegedly inciting a murder; in filing a brief in the Supreme Court supporting the Westboro Baptist Church’s anti-gay protests in 2010; and in filing another Supreme Court brief in 2014 supporting the First Amendment rights of a man charged with threatening his ex-wife on the internet. The guidelines we adopted did not change our policy, and in fact reaffirmed it. Instead, they merely codified our best practices, and sought to provide guidance and a process for assessing future cases that involved conflicting ACLU commitments.

One thing we rejected was any abandonment defending those with whom we disagree. Yet a small number of disgruntled voices continue to charge that we have done just that. But the record demonstrates otherwise. Since 2017, we have supported the constitutional rights of the NRA, the Koch-funded Americans for Prosperity Foundation, anti-Semitic protesters, Trump supporters, Trump himself, Republican challengers to a Democratic gerrymander, right-wing provocateur Milo Yiannopoulos, and conservative and anti-gay student groups, to name but a few. We have filed multiple Supreme Court briefs with the Cato Institute, the American Conservative Union, and the Institute for Justice. Here is just a sample of the work we have done since 2017 in which we have defended or stood alongside conservative voices and groups, because we believe constitutional principle demanded it, even if we disagreed with what the groups and individuals had to say.

2017

• We challenged the D.C. Metro’s refusal to post an advertisement for alt-right provocateur Milo Yiannopoulos’ book;
• We defended Donald Trump’s speech rights when he was charged with inciting violence at a Trump campaign rally;
• We filed an amicus brief in the Supreme Court in support of a tea party supporter challenging a ban on wearing political insignia or apparel at polling places;
• With the NRA, we supported a federal law that reduced obstacles to people with mental illness to buy guns, which we viewed as harming people with disabilities; and
• We advocated in defense of the First Amendment rights of a Columbus City Schools employee who posted an anti-gay slur on Facebook, and who faced being fired for doing so.

2018

• We filed an amicus brief supporting the NRA’s First Amendment challenge to Gov. Andrew Cuomo’s directive to New York financial services organizations to reconsider the “reputational risks” of doing business with the NRA and other gun rights groups;
• We filed an amicus brief supporting Republican voters’ constitutional challenge in the Supreme Court to a Maryland partisan gerrymander that created a Democratic district for which one of our biggest donors, David Trone, was running, and ultimately won; and
• We sent a public demand letter to the Vermont governor, asking that he to stop banning gun-rights activists who posted negative comments, almost entirely political, on his official page.

2019

• We challenged Arkansas State’s “free speech” zones as applied to a homophobic and racist student organization;
• We won an appeal in the U.S. Court of Appeals for the Ninth Circuit (Koala v. Khosla), on behalf of a conservative student magazine denied funding by the University of California at San Diego after they published a story mocking “trigger warnings” and “safe spaces”; and
• We filed comments on Education Secretary Betsy DeVos’ Title IX rule that supported fair process requirements for live hearings, cross-examination, access to all the evidence, and delays in proceedings if the student accused of wrongdoing also faced a student criminal investigation, even as we criticized the rule for reducing the obligations of schools to respond to reports of sexual harassment.

2020

• We filed a brief in Michigan supporting anti-Semitic protesters picketing in front of a synagogue on the Sabbath;
• We filed an amicus brief in the Supreme Court with the conservative Americans for Prosperity Foundation and the Institute for Justice in support of a case challenging a free speech zone by an evangelical Christian, represented by Alliance Defending Freedom;
• We represented a number of voters, including a Republican, to defend drive-thru voting, which was set up in Houston in November to enable safe voting during the pandemic;
• We filed an amicus brief in the Supreme Court supporting a Catholic school’s religious right to discriminate in the hiring and firing of a teacher with significant religious responsibilities;
• We sent a letter on behalf of a Trump supporter in Georgia who was being criminally prosecuted for flying a flag on his own property that said, “Trump 2020: Fuck Your Feelings.” Charges were dropped after the prosecutor received our letter;
• We protested New York Attorney General Letitia James’ effort to shut down the NRA based on the wrongdoing of some of its leaders as a violation of the right of association;
• We filed a brief in the Supreme Court with the Cato Institute, the Institute for Justice, the R Street Institute, and the Rutherford Institute on behalf of property rights of people declaring bankruptcy; and
• We filed an amicus brief in Esshaki v. Whitmer in support of a conservative Republican candidate for Congress who was challenging a signature collection requirement in the midst of the pandemic. The ballot access restriction favored the incumbent, a Democrat in a toss-up congressional district.

2021

• We filed a Supreme Court brief supporting the conservative nonprofits Americans for Prosperity and the Thomas More Society in a challenge to California’s donor disclosure rule as violating the First Amendment;
• We filed two Supreme Court briefs (here and here) with conservative organizations, including the Cato Institute, the American Conservative Union, R Street, and the Rutherford Institute, in cases challenging warrantless searches of homes;
• We sent a letter after the Capitol insurrection to U.S. Department of Interior opposing D.C. Mayor Muriel Bowser’s suggestion to cancel all permits through President Biden’s inauguration; and
• We questioned Twitter and Facebook’s bans of President Trump’s account.

Over the same period, the ACLU also represented many liberal and progressive groups and individuals in First Amendment and other cases, including: Deray McKesson, a Black Lives Matter activist sued for injuries caused by someone else in a protest that McKesson allegedly led; protesters tear gassed outside the White House to clear the way for a President Trump photo opportunity during last summer’s protests provoked by the killing of George Floyd; and supporters of a boycott on Israel. We also represented individuals who engaged in speech that was not political at all, including a pending Supreme Court case involving a high school freshman suspended from the high school cheerleading team for saying “fuck school fuck softball fuck cheer fuck everything ” on her personal Snapchat on the weekend.

In our view, the First Amendment protects everyone, whether you are on the left, the right, or somewhere in between. For a century, the ACLU has not only defended that right on behalf of others, but has exercised the right in all that we do. It’s the First Amendment that protects our organization’s rights to speak out, to organize, to demonstrate, and to petition for a redress of grievances. It’s the lifeblood of democracy, and the oxygen of a civil society. And most important, the First Amendment is what ensures that those without political power can work to demand justice. At the end of the day, that’s why we believe the First Amendment has to protect everyone — and why we remain committed to defending even the rights of those with whom we disagree.

A long, uncertain, and pivotal summer predated my time at the ACLU of Colorado. Or rather, four years of collective upheaval did. In 2016, studying as a student journalist and covering the presidential election, I was shocked by the shift of entertainment media to news and politics. For the first time in modern history, American culture revolved around public servants as moguls and policy as gossip column fodder. On top of this, an abundance of uninformed opinions in conjunction with ubiquitous personal platforms to host them caused internet trolls and chaos enthusiasts to prevail like never before. It was loud, and the news installed a new surround sound system. 

Months and years of incendiary headlines — by the week, later by the day, and then seemingly by the hour — came to a head during the 2020 presidential election. I began my internship just a month earlier, and through my work, I learned just how much the drama and theatrics overshadow the real people, lives, and systems that they’re supposed to speak for. The time and preparation leading up to the election delivered some of the best real-time crisis scenario experience I could have possibly asked for. There was always something to do, always something to worry about, and always something to fix. Even more chaotic was the world around our team, increasing in volume and panic by the day.

But when it got quiet, that was when we got to work. 

Disrupting fundamental rifts and inequities goes beyond current events and opinions. It means telling stories and using them as a vehicle for cohesive and concrete change that alters the way we all live — and that’s exactly what I got to do.

While writing the press release for a November lawsuit against the Aurora police for brutalizing Alberto Torres, a Latino man, I felt the power that one story can hold. Power to change the narrative for everyone with a similar story. For people of color, these stories abound, and they continue to be the impetus for action on all scales.

As I wrote the questions for panelists participating in a screening of The Facility, a documentary film chronicling the lived experiences of immigrants detained at the GEO detention facility in Aurora, Colorado, I stepped into each of their experiences. The most valuable information presents itself to genuine curiosity, and that’s what good journalism does. Asking questions is invaluable in the pursuit of understanding, connection and progress, and I will continue to consider their answers in all that I do going forward.

While working on messaging for the Redemption Campaign featuring NFL athletes, I worked to craft a familiar narrative with intention. It would be impossible to tell the story of every Black person in America who has endured the racist system of policing and incarceration, and it was even more important to tell a strong story and tell it well. I admire Justin Simmons, De’Vante Bausby, and Alexander Johnson for sharing their experiences and inspiring others to do so as well.

When ACLU of Colorado took on a lawsuit against a school district, sheriff and several School Resource Officers (SROs) for arresting and detaining an 11-year-old boy with autism, I helped tell many stories like his. Seven neurodivergent students and their parents came forward to tell their stories involving SROs using excessive force in schools, and they made sure that their voices were heard. When I began writing messaging and a social toolkit for the case, I examined these stories and reached out to individuals with knowledge and experience in my community in order to establish topline messaging that was inclusive and pointed. Using strategy and compassion to tell stories proved imperative in making an impact and starting a conversation.

Throughout the legislative session this spring, it was all hands on deck in the effort to get transformational pieces of legislation passed in Colorado. I worked on telling stories about individuals who could have been saved by SB21-062, a piece of legislation that would have prevented monetary bond for low-level offenses, until finding out that it wouldn’t pass. Though this seems discouraging, it taught me about the process. Sweeping reform doesn’t come about overnight, and the introduction of this bill this year has made it that much more viable for next year’s legislative session.

 As I watched a chaotic and tumultuous nation become a little bit calmer, I turned to the areas where true progress works. It became evident that passionate diatribes and perfect political alignment are no match for grassroots organizing, hard legislative action and real change — the kind that happens over years of dedicated and talented individuals doing painstaking, nuanced and sometimes seemingly inconsequential work behind the scenes. Real change and real progress does not happen on a big screen, but they happen at the ACLU — and I am remarkably grateful for this year of diving head first into these projects and getting to tell the stories I’ve always wanted to tell.