The American Civil Liberties Union is prepared to fight many of President-elect Donald Trump’s proposed policies on constitutional grounds, said Susan Herman, the organization’s national president, in a speech at the Cumberland School of Law on Monday morning.
Herman began by recounting the history of the ACLU, from its founding in response to the prosecution of conscientious objectors to the First World War to its current efforts to fight discrimination, end mass incarceration, and work with police departments across the country to improve relations with their communities.
She briefly touched on the organization’s historical ties to this state, explaining that Alabama native Helen Keller was one of the organization’s founders and recalling that the organization helped several of the defendants in the infamous “Scottsboro Boys” trial appeal their verdicts.
Herman disputed the notion that ACLU is a partisan organization biased toward progressives, noting that the union had litigated on behalf of pro-Trump protesters in Cleveland and giving several examples of the organization defending the rights of evangelical Christians to hand out religious literature or protest same-sex marriage.
Herman said that the ACLU is “absolutist” about free speech and has even defended the speech rights of organizations condemned on both sides of the aisle — some Herman said she finds despicable, including Neo-Nazis and the Westboro Baptist Church, whose members drew widespread criticism for picketing the funeral of soldiers killed in battle to protest the United States’ tolerance of homosexuality.
“Our principle is that, ‘If I can tell you what you can’t say, then you can tell me what I can’t say,’ and almost everybody has one thing where they want to say, ‘Well, you can say whatever you want, but you can’t say that,’ and for everyone it’s a different ‘that,’” Herman said. “And so we are pretty absolutist about this — if there is no showing of real danger or incitement, no matter what you want to say, even if we hate it, we are going to defend your right to say it. So we have represented communists. That doesn’t mean that we are a communist organization. It means that we defend everyone’s right to speech.”
Though the ACLU does not align itself with any political party, Herman explained that the organization compiles a report on the proposed policies of the major presidential candidates every election cycle. In doing so the ACLU staff highlights the policies that they see as being constitutionally problematic.
Shortly after the election, the ACLU released a statement from the organization’s Executive Director Anthony Romero promising that “if Donald Trump implements his proposed policies, we’ll see him in court.” In her speech, Herman expressed her hope that Trump would abandon the proposals she saw as being unconstitutional, but reiterated that if the president-elect does attempt to enact them, the ACLU will fight him.
Herman highlighted the proposal to require Muslims to register with the government as fundamentally opposed to basic constitutional rights. Trump first spoke of registering Muslims in an interview in 2015 with NBC News but quickly backed off the plan. The issue was revived earlier this month when Kansas Secretary of State Kris Kobach, a member of Trump’s transition team, told Reuters that the president-elect’s policy advisers are considering reviving a Bush-era program that would require immigrants from Muslim-majority countries to register.
“We have a number of problems with the registering Muslims idea,” Herman said. “One problem there… is that if you’re looking for all the Muslims, there’s going to mass surveillance. We think there’s going to be many violations of the Fourth Amendment, unreasonable searches and seizures.
“We think there’s a problem with the establishment clause of the First Amendment, because for the government to pick people of one religion and say, ‘These are the people we’re going to treat differently from everybody else’ — I think that’s a violation of the establishment clause.
“There is also so far — and not that Congress couldn’t change this — there is a federal privacy act which says that… the federal government should not keep track of what people do for their religious exercise. That is not something we want the federal government keeping track of: here are the Jews, here are the Muslims, here are the Christians,” she continued. “That’s the whole idea, that we’re not supposed to have religious tests and we’re not supposed to have official governmentally sponsored religion. And I think we also can’t have an officially disfavored government religion.”
Herman also explained that she and her fellow members of the ACLU saw many of Trump’s proposals as being incompatible with the freedom of the press guaranteed in the First Amendment. She dismissed Trump’s campaign promise to “open up” libel laws to make suing the media easier, noting that even if Trump were to change the laws, the courts have consistently ruled that libel lawsuits cannot be used to silence negative press.
“However, short of libel laws, I think there are a number of ways in which the [president-elect could act], if he in fact continues in the way he talks about the press, which is really wanting to punish the media for saying things about him that he doesn’t like or he thinks are unfair or untrue,” Herman continued. “During the campaign, what he did is he barred certain publications like the Washington Post and the Huffington Post from having access to him because he didn’t like the fact that he thought they were being too critical of him.
“Now if as president, if he does the same thing, and I hope he doesn’t — I hope he reads the [ACLU] report and realizes that would be a bad thing to do under the First Amendment — but if the president barred certain media from Air Force One and denied them access to the president, that would be like a death sentence to the press, which would not be able to have access to the news. So I think that’s a place where if he were trying to get control of what news media were saying and trying to intimidate the press by threatening to cut them off so they wouldn’t have access to the president and what’s happening, if they didn’t say things that were flattering to him, there I think we would be looking to litigate and looking to bring First Amendment lawsuits,” Herman said.
“The First Amendment area is one that is of great concern, because we’re particularly looking ahead to at least the next two years of a government that is not divided, where … the House, the Senate, and the presidency are in the hands of one party. And that means that if we’re going to have accountability, if we’re going to be able to look at what’s happening and judge what’s happening in light of our fundamental values … where’s accountability going to come from?” Herman asked. “The kind remark is ‘some of it from the ACLU,’ but we don’t have that much power. We can go to court, we can explain, we can publish reports, we can try to convince people, but I think the principle place now where there is power is in the media, to say this is what’s going on and to tell people the story. …
“I think we’re very dependent on the press and media, which these days, it’s very strange, that could be like any blogger. But I think that’s where accountability is going to have to come from, so I think the First Amendment is an area we’re going to be watching carefully.”
Herman expressed her worry that Trump will aggressively prosecute government whistleblowers, whom she described as doing important work in alerting the public of illegal programs enacted by the government. She noted that the Obama administration has prosecuted more whistleblowers than all previous administrations combined, and she worried that if Trump carries on this policy, then potential whistleblowers will be too cowed to bring evidence of unconstitutional actions to the press.
Herman also explored the impact that Alabama Senator Jeff Sessions could have when he becomes Trump’s attorney general. She explained that while the Obama administration’s Department of Justice has not been enforcing the federal ban on marijuana in states that repealed their own prohibitions on medical marijuana, Sessions could reverse that policy and begin arresting marijuana users in Colorado and California.
She said that the Supreme Court is currently scheduled to examine the Department of Justice’s 2015 “Dear Colleague Letter,” which instructed school systems across the country to allow transgender students to use the facilities in accordance with their gender identity, in the case of G.G. vs. Gloucester County School Board, which the ACLU is litigating. However, Herman said, Sessions could potentially rescind that letter when he becomes attorney general, which would make the issue moot and likely cause the Supreme Court to throw the case back to the lower courts.
“Senator Sessions has said in the past that one thing that’s wrong with the country is the ACLU because we’re ‘communist’ and ‘anti-American,’” Herman said. “It’s not that we believe in communism just because we support anybody’s right to say whatever they believe. And ‘un-American?’ What I’d like to say to Senator Sessions is that if in fact he doesn’t regard the Justice Department as something that’s supposed to be protecting all Americans, we will see him in court, we’ll see him every place, and I think we are a lot more American than that.”