Susan Herman has been the President of the American Civil Liberties Union (ACLU) since 2008. Under her presidency, the ACLU has won many high-profile civil rights cases, including Obergefell v. Hodges, the 2015 Supreme Court ruling that secured same-sex marriage rights across the country, and a set of 2014 Supreme Court cases overturning voter ID laws in Pennsylvania and Arkansas. Herman is also a professor at Brooklyn Law School.
The Politic: This August, the ACLU of Virginia filed a federal lawsuit against the City of Charlottesville on behalf of the organizer of the “Unite the Right” rally and succeeded in ensuring that it would be held in the city’s downtown. After violence at the rally injured over 38 and killed three, a man named Waldo Jaquith resigned from the board of the Virginia ACLU, saying, “What’s legal and what’s right are sometimes different. I won’t be a fig leaf for Nazis.” Can you speak about the distinction, if there is one, between what’s legal and what’s right, and what the ACLU should do in instances when those two don’t align?
Susan Herman: Okay, that’s a very specific question, and I find it ironic that the ACLU is involved in fourteen different areas just on the ramparts against the Trump administration’s attacks on immigrants and people of color…and people want to focus in on this one thing, which is that we represent people we don’t agree with.
Starting from 1920, when the ACLU was founded—the ACLU was founded by a collection of suffragists, labor leaders, social workers, who were very concerned about free speech for conscientious objectors, labor organizers, and for all sorts of people who were using the ability to speak out as a way to organize and a way to try to get equality. So the idea that the ACLU would “defend everybody” and not just defend the people we agree with was very important from the very beginning. You have Roger Baldwin, who referred to himself as the “principal organizer,” [he] was somebody who was a conscientious objector and actually spent a year in jail…so he was very concerned with the ability of people to dissent, people who were being prosecuted for free speech. So very deep in the ACLU’s DNA is that it doesn’t matter whether or not you agree with the speech.
So we have had, and I’m taking you back in the history because this is not the first time this question has ever come up of, “Oh my goodness, we don’t agree with this speech that we defend people’s right to say.” One of the most famous incidents was the Skokie case in 1978, where there’s a lot of misapprehension about whether the Nazis were actually doing what they asked to do. They didn’t actually march in Skokie, they were asking for permission to picket. And what happened there was that the ACLU represented the Nazis, and said they have a right to speak, same as anyone else. There have been other circumstances when we’ve represented the Ku Klux Klan, we had a person who was on the national board of the ACLU from Texas, an African-American man from Texas, who took a case representing the Klan, and he was [unclear] for doing that, but he felt that it was the right thing to do.
We also represented the Westboro Baptist Church. Can you think of a more miserable thing to do than go to the funerals of fallen soldiers and tell their families that the reason that their family member died is that the United States is not sufficiently homophobic and that God is smiting us? And so there are a lot of times when we’ve had to hold our noses, but I think that idea that you cannot draw distinctions on the basis of content is something that’s a part of the ACLU’s DNA.
But what I have seen over the years is that every time one of these cases comes up… you know Samuel Alito’s dissent in the Westboro Baptist Church case, he said, “You can say anything you want, but you can’t say that, you know. That’s too terrible.” Or, you know, people say about the Nazis, “Well, you know, I believe in free speech, but you can’t say that because that’s just immoral, it’s just wrong.” And there are so many groups about which you could say that, so my deep belief is that there is not a choice between equality and speech. The two go together.
Equality over the years, civil rights have been won because we have the right to speak out. The Civil Rights Movement in the 1960s depended on demonstrations, and using the First Amendment to protect people who wanted to have a demonstration near a courthouse even though they weren’t allowed. And so, in our idea, you represent the ability of people to speak.
You know, it was a very cute soundbite that that Virginia board member had, but he joined the board of the ACLU, he didn’t join the board of the Anti-Defamation League. That’s what the ACLU is. It shouldn’t have come as a surprise to him that we were defending speech that we didn’t agree with. So do we agree with that white supremacist speech? Of course not. Do we agree with people who’ve committed crimes who have a right to due process in criminal cases? Of course we don’t like the crimes, but there are principles here. It seems to me that there’s a tremendous difference between the principle and the content of the speech.
A couple of other things about that, I think that recently we’ve had an excellent example of how the speech is the prelude to the equality, with Colin Kaepernick. When he first started kneeling during the national anthem, what he wanted to was to start a conversation about Black Lives Matter and to get people to pay attention to racism, and he was having a hard time getting that conversation started, and people wanted to focus on the fact that he was protesting. And the president is now ratcheting up that conversation of, you know, can you protest in this way? And I just find it so ironic, the attorney general is complaining that on campus people are being prevented from saying what they want where they want to say it, but you can prevent Colin Kaepernick and anyone else in the NFL by firing them if they want to say something that you don’t like?
So what are your thoughts on students on college campuses preventing people like Milo Yiannopoulos and Richard Spencer from speaking?
Okay, well, much to people’s surprise, we defend people’s speech that we don’t agree with. We think that Milo has a right to speak, same as anyone else. There can be time, place, and manner restrictions, just like in Virginia. If it’s not inappropriate to have time, place, and manner restrictions, then it’s perfectly appropriate to have conditions to permit whether or not people are carrying weapons, you know, that’s fine, it’s not like you get to do whatever you want. But when restrictions are aimed at the speech itself, that’s different.
And I think one real problem that we have is that the latest polls show that millennials, younger people, are not getting that speech is a value unto itself. The polls show that it was, for example, a UCLA poll from a few years ago polling incoming college freshmen, like 140,000 college freshmen, about their viewpoints about different things, including the First Amendment. And they asked the students, “Do you think that you have a right to a safe space where people can’t say things that you find offensive?” And a supermajority said, something like two-thirds or three-fourths, said that, “Yes, the college should protect them from speech that they don’t want to be around.”
But, at the same time, what I find really ironic is that just about the same supermajority of students answered a different question. When the question was asked, “Do you think dissent is important?” they said, “Yes, dissent is very important, and dissent should be respected.” Now, how do you separate those two? To me, it’s two sides of the same coin. Dissent is something that somebody else doesn’t want to hear. And once you start making exceptions for, you know, you can’t say this and you can’t say that, first of all, it’s a real slippery slope.
Second of all, what people are saying when they’re saying that you shouldn’t be challenging the ability of [city of] Charlottesville to say where [Unite the Right participants] can demonstrate and what they can say because of what they’re saying, not because of any other interest, like security, once you allow the government to do that you’re allowing the government to decide who’s going to say what. And I have to say, you people who say, “I don’t want Milo speaking here,” OK, well if you have the university censoring or if you have the government censoring, or you have Charlottesville deciding who can say what, if you have the Trump administration deciding who can say what, are you going to like that? Some of the universities, and some of the towns, are going to say “We’re going to prevent the Nazis from speaking,” and some of them are going to say, “We’re going to prevent Black Lives Matter from speaking, because they’re dangerous, we’re afraid they’re going to be armed, we don’t want them here.”
You know, if you can show that there’s actual danger, one of the problems in Charlottesville, to give a little bit more background about the case, obviously you did some research, but the legal director at the ACLU in Virginia, who is actually herself African-American, decided to take the case when Charlottesville had granted a permit to Mr. Kessler, who wanted to hold the demonstration near the statue of Robert E. Lee, and the city then withdrew the permit and made the condition that the demonstration be held a mile away, which kind of missed the point. And when asked in court why they needed to move it, they couldn’t come up with a credible reason. There was just no reason, it wasn’t easier to police, you know, they just didn’t want that speech in that place. It was about the speech, it wasn’t about anything more practical than that. So the court said, the city didn’t give us any good reason for it, if they had a good reason, they could have said, “This is a violent situation, we’re going to let people patrol it,” you know, compare what happened in Charlottesville with what happened in Boston, with good police and they managed to keep the peace even though everybody got to say what they wanted.
What do you mean when you say free speech is a value?
I think that the First Amendment is first in the Constitution for a reason. I think that the main thought in putting the First Amendment first is that we are a nation of individuals who can talk back to the government, who can decide for ourselves what religion we want to practice and what we want to say, even if most of our neighbors don’t like what we want to say. So I think the idea that the First Amendment is counter-libertarian [unclear], that your neighbors can all decide that they’re going to make it a crime for you to disrespect the flag, or whatever it is that you have [unclear] that the majority might do.
The value of free speech is about the value of the individual, and it’s about the individual’s right to decide what to say and not have their speech repressed on the basis of its content. Again there are circumstances where, you know, a crowded theater, inciting violence, there are circumstances where there are exceptions, and there can be appropriate time, place, and manner restrictions where you can channel the speech, but those can’t be based only on the fact that the person doing it, [that] is, censoring it because of the content of what you want to say.
But I think that applies to colleges as well. So what I would like to see happening is instead of a college saying, “Well, we don’t want Milo on our campus because he’s too provocative,” instead of just, you know, [he] comes on the campus and you spend eight hundred thousand dollars on security, make it Milo Week. Have sessions before he comes to talk about what he’s going to say, why does that press people’s buttons so much, how do you respond to that, and what’s the best way to react. Could you have a counter-speech and invite more people to come to the counter-speech than come to his speech, deprive him of his audience? You know, how do you handle this? How do you handle free speech in a free society?
Is there an important distinction between if the university itself is keeping the person from speaking or if it’s a group of students who are protesting and ultimately keep him from ever actually speaking?
I think the university does have a real responsibility to educate, so what if the university says, “We have a public auditorium here, and anybody can speak except you can’t speak because you’re the Gay-Straight Alliance.”? Or, “You can’t speak if you’re Black Lives Matter or if you’re friends of Milo.”? They’re not allowed to discriminate on the basis of content.
I think that it’s also the university’s responsibility to do what they can to prevent students from using a heckler’s veto and just try to shout people down. And what I will say to any students is: you’re right. Counter-demonstrate, counter-protest. But not shouting people down. Because the whole problem, I think your right to free speech ends when you’re trying to prevent somebody else from exercising their free speech. Or when you’re actually causing dangerous situations or when you’re actually inciting violence or brandishing weapons.
How would the marketplace of ideas be ideally actualized? How would that play out in real life, in the best-case scenario?
I think the way it plays out in real life, and in universities, I think there’s a really particular opportunity where universities have a chance to try to educate, which is what they’re supposed to be doing, to educate students about how you get along in a society where not everybody agrees with you. I think one of the biggest problems that we have today—we’re seeing our very democracy beginning to be shaken to its roots—is that people are very uncomfortable to disagree. People are uncomfortable hearing ideas that they don’t agree with that they, therefore, want to avoid and they don’t want anyone else to hear those ideas. And that, to me, is not how you address an idea, even if it’s an obnoxious idea.
First of all, a lot of the things that people thought were obnoxious ideas turned out to be revolutionary. You know, Galileo, or John Thomas Scopes; those things that people want to shout down are not always as bad an idea as people think at the time. So I think that what we have to do is instead of just yelling at each other because we disagree about our ideas or ignoring each other or trying to shut out other ideas, we have to learn how to have a dialogue about ideas. And you know, just how to do it. And I feel like that’s where people today who are saying, “Oh no, the school should be protecting me from ideas I don’t like,” well, they should be teaching you how to cope with ideas you don’t like. Not to keep them out so you feel safe, because you’re less safe.
So one of the things that’s often said about free speech is that one reason why you allow bigots and homophobes and racists is because first of all, if you don’t let them say what they want their beliefs are going to fester. They’re going to be more likely to act on their beliefs because they’re not going to be able to say what they think, and have somebody maybe talk back and know that they’re dangerous and keep an eye on them. So you’re not going to make the problem go away by not letting them say what they believe. If they say what they believe, then we have a chance to talk back and educate and show them why their idea is stupid, frankly.
That’s part of it, plus the other thing I think is that, you know, a lot of people don’t really think things through; you know, places where they kind of want to keep Milo out but they don’t want to hear [unclear], is that you’re then making these people free speech martyrs. And that’s now the batter that they’re delighting in; that’s what Jeff Sessions was just talking about in his speech: “Oh, you know, the universities, those liberals, they don’t believe in the First Amendment, they’re trying to shut people up.” Well, the ACLU believes that, in a way, he’s right; but there’s no equivalence between the kinds of things that [students at universities do to] try to shut people up and the way white supremacists try to shut people up.
But I think the whole idea that as a society we’re going be committed to the idea of multiculturalism and people having their own individual ideas and government not telling us what to think, not allowing the government to go to the position of censor, then we just have to all be able to say what we want to say. But I think especially in the context of a university you can’t constrain speech in a very educational space. That’s not going be a “safe space”—that’s going be in the long run a safer space if you can educate people; how to talk and how to listen and how to deal with and interact with an idea you don’t agree with.
There was a great example once in NYC: there was a march by the Ku Klux Klan and there were only 42 of them and they were really pretty old. They were pretty bedraggled, you know, marching down Fifth Avenue and I think there were something like 47 of them. And thousands of New Yorkers lined the parade route, with signs, you know, just saying what they thought of these stupid ideas. So one thing that the ACLU, that I would like to do and what we’re trying to do also is defend the speech, but that doesn’t mean you’re defending the ideas. So we also have a lot of organizing we’re trying to do now to fight the hate. Because it’s not the speech that’s the problem. It’s the hate we have to counteract. And to get to the source of that, I think again universities are a place where I think they could be doing a lot more. So, the ACLU, in addition to believing in free speech on campus, also believes that universities have certain obligations to prevent bullying and to do more educating about that.
Can you tell me about some of the organization you do against hate?
It’s kind of preliminary now; we’re doing this new thing community organizing, and we have this new thing called People Power. So since the election membership of the ACLU has quadrupled. We have 1.6 million members. People are really looking to us to be the anti-Trump.
How does that feel?
Well, instant growth is hard to manage. Our staff is unbelievably big, there’s so much work to do. But I’ll tell you one thing as a tangent to what you were saying, asking about in our previous conversation. I think a lot of our new members expect us to be the anti-Trump and to do everything all anti-Trump all the time. And I think some of them would be surprised to know that we would and do represent right-wing members also.
We had a case in Cleveland when the RNC was there where the Cleveland Police had decided to make a very large event so people wouldn’t be allowed to demonstrate in this very large zone, and wouldn’t be allowed to have weapons which would include a stick that you had a poster on and things like that. So they knew that people were not going to be happy because they weren’t going to be able to demonstrate and no one knew where the action was. So they were anticipating 1,000 arrests a day. Gearing up for that. So the ACLU of Ohio brought a lawsuit about the events against [the police] and they said [if] violence wasn’t occurring, you can’t keep people that far away, you don’t really have a good reason to do that.
So the judge agreed, and they shrunk down the event to something that was a more reasonable size. And as a result, they had almost no arrests, because people felt they were able to say their piece, and there was just not nearly the problem that they thought. So we had five different plaintiffs, in this case, one of which was a homelessness bureau from Ohio, but the ACLU of Ohio named their lawsuit after one of their plaintiffs which was “Citizens for Trump.” Not that we agree with him, obviously, but they also have the right to speak. So right-wingers sometimes say “Oh, you know, so hypocritical—you’re all for speech for Black Lives Matter, where are you when the American flag needs defending, or the president?” And the answer is, we’re there. We try as hard as we can to be content-neutral.
So now, in People Power, since the election, people are really needing to do something. People would often say to us in the past, “OK, so, in addition to being a member of the ACLU and donating, what else can I do?” Our answer was, “Give us more money so we can do more important work.” But now we decided that that’s just not good enough. I mean everybody really wanted to know, “What can we do?” So our first initiative was that with People Power. Anyone can go to peoplepower.org and check out the site.
Our first initiative was to organize people, we had house parties all around the country of people watching the launch. It was resistance training; the idea was to teach people about what their rights to demonstrate are under the First Amendment. How you can do it, what your rights are and whatnot. How to organize; the proposal was that people could go to their local city council or police chief or something like that and try to sell them on nine model ordinances that we had written up to try to do things to, where a citizen would be within their rights not to call the federal government [to have ICE] deport people. And present choices to do better policing and things like that. So there were all these groups all over the country that went to try to go local, to try to do this kind of grassroots organizing. And there are places like Phoenix and Tucson where this worked out really well. That was initiative number one.
Initiative number two, which we’re rolling out this Sunday, is about voting rights; [it’s called] Let People Vote. I’m going to talk about that; it’s very exciting. People can go to house parties Sunday and organize there. The idea is that everybody should vote; we’re not partisan, we’re not telling you who to vote for, but we’re saying that the state governments, which are mostly Republican, should not be trying to prevent people from voting. So I think the next initiative that we’re really trying to think about now is instilling the ideas of formation on how to organize and on fighting the hate. So it’s a work in progress, to figure out, “What can we do?” that we can help really fight the hate.
Switching gears a little, what’s an issue that you feel is underreported that you want The Politic readers to know about?
I’m going to tell you one more free speech story, just so you can have it, and we’ll move on to something else. In, I don’t remember what year, but it was the anniversary of when Henry Hudson sailed up the Hudson River, the Dutch were really into this and they sent all these Dutch reporters over, and while these reporters were here there had been a member of parliament in the Netherlands who had been prosecuted for saying really nasty things about Muslims. So a Dutch reporter called me up and everybody in the Netherlands thought this was a great idea, prosecute this guy for saying nasty things about Muslims. So he thought that maybe the ACLU would have a different idea about that. So he came in and asked me if he could interview me so he came to my loft, and so we’re talking about this and he found this very intriguing, though it was a very peculiar idea. So I was cutting off the interview because I had to go to class, and so I just said to him on a whim, “Hey, do you want to come to class, I have a constitutional law class of 100 law students, want to know what they think about this?” So he said sure, and he asked the class, explained to them what’s happened, and he says to them, “So how many of you think that it’s a good idea to have a prosecution of this guy for hate speech and saying nasty things about Muslims?” And nobody raised their hands. And he said, “Really?” He couldn’t believe it. Then the students started talking about it, it’s the First Amendment. And he was just blown away by the fact that it’s not just the ACLU. That it’s everyone.
Ok so, the other question. I think one of the most dangerous things that are not on the table is the extent to which our voting rights are really being…
Crushed. Eroded sound natural. Crushed. There are a couple kinds of things, that I think people don’t put together the whole picture of just how democracy is just not as secure as we would like it to be. And I would start this with the Electoral College. There were a lot of people complaining about the Electoral College after Donald Trump was elected, and the Republicans said, “Oh, you know that’s just how it works.” Well, the Electoral College was included in the Constitution at the behest of plantation states like Virginia who wanted more power even though they didn’t let the majority of their populations vote. And so with the slavery issue, I think the Electoral College should have gone away along with the Three-Fifths Clause, but, it didn’t. So I wrote an op-ed actually about this because I think that there are ways that we could get around that and get the popular vote back. And I think it’s important that people think about that and organize because the whole idea is that you’re giving rural states more of a say. They get to have a thumb on the scale. So that’s number one, they get a thumb on the scale in presidential elections.
Number two: largely the same idea, that the federal government wasn’t going to intrude much, and that states like Virginia could be able to make the wrong rules. Article One of the Constitution gives the states the right to decide who should vote and what the procedure should be for voting. In 2008, there was a massive turnout, more turnout than there had ever been, by a very diverse populace. And shortly after that, the year before the next election, something like 17 different states came up with 29 different measures to suppress the voter.
You see that in Wisconsin, 17% of the black vote was suppressed.
The University of Wisconsin, one professor verified that. And voter suppression measures, I think most people don’t realize how unequal they are. Because people feel like, “I have a driver’s license, everyone has a driver’s license, well who doesn’t have a driver’s license?” People who are poor, or, you know, people who are elderly, people who are disabled, and as it turns up the poverty correlates with race, and so it’s very unequal and would really hurt, if the study out of the University of Wisconsin is true, a real [unclear]. And also, all these laws make it much harder to get to vote by limiting things like early registration or early voting, same-day registration, and the main thing right now, again, the ACLU is nonpartisan and doesn’t necessarily believe that either party should win, but one party is trying to [prevent] people from voting. So all of this right now, with the Republicans trying to shrink the size of the electorate, they believe that some of the people that they’ve been trying to keep from voting are going to vote against them. And so that’s just manipulation.
You know, saying about how voters are supposed to chose their politicians, politicians are not supposed to choose their voters. That adds in with the procedures around voting, then added to the gerrymandering. So the Supreme Court has a case about that this year, it’s political gerrymandering, which Wisconsin did. And 49% of the vote yielded 60% of the results. North Carolina is even worse, they just gerrymandered so the population was about even [in terms of partisan split] and now their congressional delegation is totally skewed. So the Supreme Court has a really important case about whether they can do that. And the last thing we also have, the ACLU has a case in the Supreme Court this term about Ohio. And the latest trick to try to cleanse the voter roles, purge the voter rolls, is purging voters who haven’t voted in two years.
Is there any reason for that, that they gave?
They’re just “cleaning up the rolls,” just cleaning up the lists. You know, it’s “totally innocent.” But that was our argument. So right now, in addition to what all the states have been doing, the federal government, President Trump has started this Election Integrity Commission, which is co-chaired by Vice President Pence and Kris Kobach. Kris Kobach was the secretary of state in Kansas. We sued many numbers of times because he was like ground zero of voter suppression measures. And we won cases in the Tenth Circuit with judges who were Republican judges saying, “You can’t do that.” And he’s now who’s in charge of election integrity.
You may be aware of the fact he asked for all the states’ voter information, complete information. Some states resisted but, you know, some didn’t. And already that has had an impact on a lot of people kind of withdrawing; they don’t want to be on the rolls, they don’t want anybody to know about them. So they back off. Now again, they’re just fearing the government, and it looks to me like the Election Integrity Commission knows exactly what its results are going to be. And they’re just there to try to, get to those results. They’re going to find voter fraud; Kris Kobach has been working very hard for years and he just found six instances. But I think the name of the game is that they’re going to propose cutting back what was called the motor voter law, that was passed in the Bill Clinton days. And the idea was to make it easy for people to vote, you could register at the motor vehicle offices, and I think they’re going to cut back on that, they’re going to try to institute perhaps what Kobach has proposed, which was to have to prove your citizenship beyond the ordinary identification. You’d have to have some proof of citizenship like a passport or a birth certificate. And the whole idea that “Oh, anyone can do that,” but they make it difficult for some people.
We had a plaintiff in a challenge to Wisconsin voter suppression, their voter ID law, who had voted for 48 years, and then she had a stroke and was unable to get out of the house for eight weeks. Their voter ID law required a certain kind of government ID, and they would give you one but to have it you had to have certain supporting documents. She didn’t have the proper birth certificate because she was born at home. The hospital where she had been born, their records had been destroyed or messed up, and she would have had to go to court and spend hundreds of dollars to get the right identity information, to get the identification. And she had a stroke, and she couldn’t get there, and it was really hard to pay for, it was ridiculous. So these things really affect a lot of people.
You add all this up: the effect that the rural states have a thumb on the scale for the Electoral College, and the number of states that have a thumb on the scale because of electoral procedures where they’re trying to keep the vote skewed, the Election Integrity Commission; and the federal statute that has done the most good for democratizing the vote and making it more equal, the Voting Rights Act, the Supreme Court decision in the Shelby County case, that made it much less effectual than it has been. The motor voter law is also something that’s undermined. It looks like an attempt to really steal elections. And according to the Supreme Court, I think the thing that people need to understand is that the cases in the Supreme Court really make a difference. I mean people talk about rights and liberties, they want to talk about justice in the age of Trump and they have all sorts of questions, and sure, they’re great questions about the travel ban and what about this and what about that, but I want to talk about whether we’re a democracy.
You know, democracy-lite. We’re not doing a very good job. There are a lot of fundamental things that nobody ever talks about anymore, just having neutral rules. You could have bipartisan redistricting, you could have bipartisan “let’s figure out what the procedures are,” you could make Election Day a holiday, so people wouldn’t have to get off work to go vote. Because that’s a lot of people who can’t wait in line. You know there’s a lot of things that we could do if we really wanted people to vote. And you put all these things together, it’s really…
What makes us democracy-lite?
Well, I think it’s a combination of all those things. Not encouraging people to vote, politicians who help control the voting process, and they’re being allowed to do so in so many different ways.
So could you draw a line between this crushing of voting rights and our general degradation of democratic principles?
Well, yeah. I think that in terms of degradation of democratic principles there are a number of things that go together, because if you’re talking about complete degradation of democratic principles you’re talking about a turn towards total authoritarianism. And there are a lot of countries in the world where there’s been a serious turn toward authoritarianism, and I think that there are a few things to me that are like the pillars of authoritarianism. You start worrying if you see them happening. One is the attempt to manipulate elections—either stop the elections or manipulate the results. But the others I think we also really need to worry about, one is the suppression of dissent, with, you know, all this talk about [how] any media that criticizes the president is fake news. When criticism is just not tolerated, that’s a dangerous thing. There are at this point about fifteen or so states that are considering really draconian punishments for protesters. Things that are like, if you help to organize a demonstration and the demonstration becomes violent, even if you didn’t know about the violence and weren’t involved you could be subject to asset forfeiture. You could lose your home.
Like the law where it’s okay to hit protesters if they’re in the street?
Right, you could run them over. Or a few other states are proposing that blocking the sidewalk with a demonstration would be considered economic terrorism, and you would get punished in a serious sense. The tone that the president is setting, of not wanting football players to be able to express a point of view, that they should be fired for expressing a point of view, I think is the kind of thing that is pernicious. You suggest to people things that you shouldn’t be allowed to criticize, you shouldn’t be allowed to protest; that it’s patriotic to stand for the national anthem with your hand on your heart. At the ACLU, one of our main slogans is that “dissent is patriotic.” You know, we have to criticize. We get back to the First Amendment, you know, the fact that we are a nation of individuals, the government doesn’t run us, we run the government. So there’s speech, the other thing that I think is one of the big pillars of authoritarianism is demonizing different subgroups on the basis of religion or ethnicity or race. We certainly have a lot of danger of that these days in terms of the reactions to, you know, Muslims. I think there are thin
Taking all that together, would you sound the alarm about this country becoming authoritarian?
I think there’s a great quote I like from William Douglas about how it doesn’t get dark all at once. It’s going to be a little dark and a little twilightish. So if you pay attention to the twilight, then you’re in danger. It’s not like, “Oh my god, someone turned the lights out.” But you know, there’s some fading, and that’s a time to start worrying.
What is a case that you’ve personally worked on in your life that most informed your legal philosophy?
I’ll give you an old example and a new one. So a case that I worked on while I was in law school, I was working with a law professor and this was when I first got involved with the Civil Liberties Union. It was a case involving six students at Stony Brook University on Long Island, in New York, and they were six grad students living together in a house. They discovered, to make a long story short, they discovered that they were not legal residents because the entire village was zoned for one-family houses, and family was defined as no more than two persons unrelated by blood, marriage, or legal adoption. And they were grad students. They were not related by parents or adoption. They were perfectly respectable, not having a wild fraternity or anything, but they were just living together as roommates.
So we litigated this case in many chapters here, and we lost in the district court, then won in the Second Circuit Court, then we lost in the Supreme Court. And I still look back at that case and I say, how can the government tell you who you can live with? If it’s not a matter of you have too many people in one house or you’re making too much noise; regulate those things directly. If your point is there are going to be too many cars, if there are too many adults and not enough parking, there are a lot of things you can do to regulate the real problem without the discrimination. Not in our village, we only want mom, dad and the kids, not saying we only want people related by blood, marriage, or adoption.
More recently, the most recent briefs, I don’t have a lot of time for actually litigating briefs these days because I’m doing other things, but the most recent case where I wrote most of the ACLU’s brief in the Supreme Court case was a case called Riley v. California. And the question was whether or not the government could search the cellphones of everyone that they had arrested. Their argument was that they could always search the stuff that was in your pocket, and if the cellphone was in your pocket it was stuff and you could search it. And the main point of my brief was, wait a minute, there is something a little different about the cellphone compared to whatever else might be in your pocket. And to me, this is, I guess, about legal philosophy. because it’s about both the kind of authoritarian reach-over, the government knowing everything about you.The whole idea about authoritarianism, and also the way in which—one thing I see a lot teaching constitutional law are the challenges to the Constitution that come with the development of technology. And so this technology has changed the world, and one of the cases that we teach was called Homestead v. United States, a 1928 case, where the Supreme Court says telephone wiretapping is not covered by the Fourth Amendment because the framers didn’t have that in mind.
How could they have had that in mind?
Exactly. So Justice Brandeis really asks the right question: Well, wait a minute, if we could sit down James Madison and ask him what a telephone is and explain what wiretapping is, don’t you think he’d say that’s the kind of thing we were worried about? Let’s not be so typical and so literal. So Brandeis had an amazing sentence in there that I used for the conclusion of my argument which said: “Maybe the government will someday devise [a] way to figure out what’s in your desk without having to actually break into your house and rifle through your desk.” And what I would say is, well, that’s your cellphone. That’s your pictures. We carry them around with us, so it’s not an exaggeration to say the cellphone is now our desk. So if Ben Franklin thought the government shouldn’t rifle through his desk and see his private papers, it’s the same thing when you’re carrying your papers around in your cellphone. So what I was really delighted by was that the Supreme Court got it.
So there’s another ACLU case, we have a lot of them, this term which is about cell locations. It’s a case called Carpenter. It comes out of Michigan, Carpenter v. United States, and what the government did there, what they were trying to track down was who might be responsible for some robberies, and they took from Carpenter’s cellphone providers all the information about every place he had been for 127 days. So they could see if they could match the locations of the robberies to where he had been, no warrant. And the idea was, there was this ridiculous doctrine that the Supreme Court has worked upon the Fourth Amendment called the “third party doctrine,” which says that it’s not a search if they get the records on you from somebody else and they share the records with somebody else, because you can’t expect privacy. Why did you share that information with your cellphone provider? And my feeling is, they have to do something about that. Because the technology has just made that doctrine ridiculous. Because, I mean, think about what your internet service knows about you.
I just want to ask one more question before time’s up, with the first case you talked about with the grad students from Stony Brook. It reminded me of what you were saying before I turned on my computer about “abjudication,” and could you explain for the record what that is? Why do you think courts act that way?
Well, an area that I’ve done some work in is the area of national security. So, in the middle of the Obama’s first administration I wrote a book which I called Taking Liberties, and I wanted to show how all the changes in law post-9/11 have actually had an impact on ordinary Americans, because people were thinking, “Why should I care about that, why should I care about what the government knows about me if I haven’t done anything wrong?” So I wanted to really show people why they should care. So, I also teach a seminar now on a lot of similar subjects looking at how the law has changed since 9/11, how the law has reacted to a lot of these things. And one thing that’s been a great source of disappointment to me is that the courts have not been more receptive to claims about serious Constitutional legal violations as well as violations of international law.
So before you turned on the computer I was talking about an issue I talked with my class about this morning, which is the issue of targeted killings. So there was a case involving Anwar al-Awlaki who was killed by a U.S. drone, and his father had brought a lawsuit to the ACLU when he heard that his son was on the kill list. He is an American citizen, so he had constitutional rights. So the court dismissed the lawsuit, saying that his father didn’t have standing, and that the only one who could raise those claims would be al-Awlaki himself, so he should turn himself in and say, “Please don’t kill me.” And the other thing that the courts said was that it was a political question, that it wasn’t for the courts to decide if this was constitutional, that you should leave this to the President and to Congress. Congress has done nothing about targeted killings, they’ve passed no statutes, they’ve just kind of left it to the president. First Bush, then W. Bush, then Obama, and now Trump.
And so the second lawsuit that was again brought by the father after his son had been killed, and not only that but his grandson who was sixteen years old was killed incidentally because he had gone to look for his father and was killed by the drone. So this poor man brought the lawsuit about the deaths of his son and his grandson, again trying to challenge the constitutionality of the actions. And the court here, a judge in the D.C. district court held that the case had to be dismissed for procedural reasons, even though it was a sort of plausible claim under the Constitution. But they said that for procedural reasons they would dismiss it. Similarly, every single case that has been brought by a victim of torture or some rendition has been dismissed. There is not a single person who’s gotten a hearing on their merits. There was one case that was settled quite recently. But the courts are just not willing to hear these cases on their merits, and they would come up with all these legal procedural doctrines like, governmental immunity, states secrets privilege, qualified immunity, political questioned standing. You know this case called [unclear]…you could go on easily for ages about this.
So I gave a talk which was turned into an article by Southern University Law School, which I call “abjudication.” Because these opinions are so painful, it’s just 100 pages going on and on about, “We can’t possibly hear this because,” and because the courts are just not willing to hear claims that the courts have behaved unconstitutionally or illegally or in violation of international law. I think it’s very disappointing because I think that the court did stand up to George W. Bush with respect to Guantanamo, and they did say, you can’t just lock people up without a hearing. And they did say that you know this is not just a blank check for the President, the court does have a job here. But the lower courts since then have not been rising to the…I think that they don’t want to be on the hook. Because what they say is, “We’re not the experts, we can’t really tell. These dangerous situations, yeah don’t ask us. The President is the expert, let him decide.”
So I think some of it is just that sense of judicial modesty, you would call it if you wanted to stay positive about it. But I think some of it too is that if something were to happen, they don’t want to be to blame. I just feel like it’s been a great disappointment.