News & Commentary

Just over four years ago, Donald Trump’s Federal Communications Commission eliminated net neutrality rules that ensured a free and open internet. Without these critical protections, internet service providers, or ISPs, were no longer required to provide equal access to all lawful content on the internet. That means ISPs were free to speed up customer access to information they like — either because they agreed with the content politically, the opinion advanced their corporate interests, or a business partner was paying them to give its content preferential treatment. At the same time, ISPs were likewise free to deliberately slow down customer access to content they didn’t like, or to block it entirely.  Through almost every political lens, getting rid of net neutrality was viewed as a terrible move. It turns out, Americans love a free and open internet. They want to have access to receive and communicate information free of corporate censorship. Even in Trump’s divided states of America, people from every background and political philosophy were united in their desire to bring net neutrality back. According to a 2018 University of Maryland poll, 82 percent of Republicans, 90 percent of Democrats, and 85 percent of independents favor restoring net neutrality.  Proponents of net neutrality put up a fight. In 2018, the Republican-controlled Senate voted 52-47, via the Congressional Review Act, to reject the FCC’s elimination of net neutrality protections (the House never got the chance to vote on the CRA). Throughout the nation, governors and state legislatures adopted laws and executive orders seeking to preserve net neutrality in their states. And the ACLU may have permanently harmed several of its staff members by filming them eating dangerously hot chicken wings while pleading with the federal government to save net neutrality.

This week, Joe Biden was inaugurated as President of the United States. As part of his day one agenda, he rescinded one of the Trump administration’s most noxious orders. The Muslim ban, enacted within Trump’s first days in office, blocked virtually all immigration from countries with substantial Muslim populations, including Syria, Iraq, Sudan, Libya, Somalia, and Yemen. The order sent people across the world scrambling to avoid permanent separation from their families, their jobs, and their education. Amidst a national outcry and protests in airports and on the streets across the country, the ACLU was able to secure an early victory in the courts. But, over the years, fighting the Muslim ban became like a game of Whac-a-Mole. The administration would concoct superficial language tweaks to dodge judicial scrutiny, and the ACLU and others would fight anew. In the end, we were left with a ban, rubber stamped by the Supreme Court, that blocked entry to people from 13 countries around the world, mostly in Africa and the Middle East.  This week on At Liberty, we share the stories of three people directly impacted by the Muslim ban, and discuss what ending it will and won’t do for the future of Muslims in America with Manar Waheed, senior legislative and advocacy counsel at the ACLU. 

Living in New York City, there are some things you just know. You know that if you see a gigantic rat in the subway station you look the other way and pretend it doesn’t exist. And you know that if you see a gigantic inflatable rat in front of a business it means that workers are protesting unfair employer practices. Scabby the Rat, a 12-foot inflatable rat balloon, is a familiar sight not just in New York but around the country. But the government is now trying to deflate him. Luckily for Scabby, the First Amendment is on his side. Under existing precedent, unions have a legal right to display Scabby. They cannot be held liable under the National Labor Relations Act (NLRA), the law that governs most private sector employees’ collective bargaining rights, for simply standing with Scabby on a public street. But Peter Robb, the now-fired general counsel of the National Labor Relations Board (NLRB), a government agency, has been on an anti-Scabby mission for years. He has succeeded in bringing the question of whether Scabby is protected by the First Amendment back before the NLRB, prompting the board to invite the public to weigh in. Specifically, the NLRB asked whether it could find that displaying Scabby violates the NLRA without also violating the First Amendment. It cannot. Since speech about labor disputes is constitutionally protected, particularly when it occurs in public spaces, we filed a brief explaining why the First Amendment protects the giant rat balloon. Scabby is fully protected symbolic speech. We use symbols all the time to express ourselves, from

Yesterday, as part of a slate of executive orders signed by President Biden on his first day in office, he issued an “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” It is now the policy of this administration that “[e]very person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love.” These opening lines were a salve after four years of relentless attacks by the Trump administration on LGBTQ people in all aspects of life. This new administration is willing to recognize and work to combat the sobering reality that “transgender Black Americans face unconscionably high levels of workplace discrimination, homelessness, and violence, including fatal violence.” And we now have a president who is planning to follow the Supreme Court’s landmark decision in Bostock v. Clayton County and who has instructed the applicable federal agencies to do the same. Contrary to a trending hashtag on social media and the polemics of a few loud voices, President Biden most certainly did not “erase women” — whatever that means. By stating the administration’s intention to follow Supreme Court precedent and federal law, at core all the newly-elected president did was lay out what the law is and agree, unlike his predecessor, to follow it. That includes, as the order makes clear, ensuring that “[c]hildren should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.” If only we lived in a world where this would go without saying; a world where it would be uncontroversial to merely affirm that every young person deserves a chance to learn and thrive and participate in school. Sadly, that is not the world we live in. Predictably, powerful individuals and organizations immediately objected to the idea that trans people might actually be protected in schools and began circulating the insidious lie that trans people are inherently a threat to non-transgender women. This is not true in the context of restrooms and locker rooms and it is likewise untrue in the

Picture it: The United States is riven by social unrest and political polarization. Millions of Americans feel unwelcome in the only home they’ve ever known. Thousands of immigrants are being rounded up, denied due process, and even deported. A rise in hateful, nationalist rhetoric is fueling anxiety over our borders, ​and stoking the flames of white supremacy and racial violence within them. Women — and even members of the LGBTQ community — are reaching new heights of visibility, political power, and personal autonomy,​ but also enduring violent backlash. As our democratic principles​ — ​from freedom of religion to freedom of the press — are under siege, masses of people, young and old, are taking to the streets to protest and demand their rights.    The year is 1920.    In response to this​ ​massive suppression of free speech and civil liberties, 101 years ago today, the American Civil Liberties Union was born. At the time, many of the rights outlined in the constitution were theoretical, untested by the courts, and of little practical meaning to most people, especially women and people of color. The founders of the ACLU set out to change that: ​to amplify the voices of the marginalized and secure civil rights, liberty, and justice for all. Decidedly intersectional, our founders included Helen Keller, Crystal Eastman, James Weldon Johnson, and of course, Roger Baldwin.   It’s deliciously fitting that the ACLU’s 101st birthday coincides with the very day Donald Trump leaves office. The ACLU has seen presidents come and go. As we know, some have tested this country’s dedication to democratic values more than others. Since Donald Trump took the oath of office, we’ve filed 413 legal actions, turned out thousands of people to airports, courthouses, and mass mobilizations. We filed our last legal action against the Trump administration on Friday. We stood watch until the minute Trump left office, and our watch continues.    These past four years, we won victories to stop LGBTQ employment discrimination, protected and expanded voting rights, blocked state-level abortion bans, worked to reunite families needlessly separated at our Southern border, and battled Trump’s Muslim ban in court numerous times.   With his policies and rhetoric, President Trump tried to divide us. He tried to make us a nation of us versus them. He pitted immigrants against citizens, and fanned the flames of white supremacy while Black people were murdered by police. He called certain cities and states more deserving than others. He waged war against our free press.   After 101 years, we at ACLU are not surprised when presidents disappoint us. To be clear, we never believed that we were living in Donald Trump’s America. Rather, he lives in our America. In our United States of America, we the people means all of us. So rest assured that the ACLU will keep fighting to advance freedoms where we can, and defend them where we must. We are committed to working with but also holding President Biden and Vice President Harris accountable to the promise of our constitution. With our help, they will be the transformational leaders that our country needs and deserves right now. And thanks to people like you, we now have the strongest ACLU our nation has ever known.    There is work to do to create a more perfect union. We know there are battles just around the corner to preserve the rights many have fought and won. We will work to forge an inclusive pathway to citizenship for the estimated 11 million undocumented and stateless people living in the United States — without caveats or tradeoffs. We join the chorus calling for this nation’s long overdue racial reckoning.    The ACLU won’t rest until we live in an America where equality and justice are a lived reality for all of us. We never lost hope, and we are not only more resolute than ever. We are certain that our ACLU values and principles will continue to prevail for the next 101 years. “We the people” deserve — and will accept — nothing less.

In 2018, the ACLU brought a successful lawsuit, Ms. L. v. ICE, against the Trump administration’s barbaric practice of forcibly separating migrant families. At the time, we had no idea of the scale and depravity of the injustice, but now know that thousands of children were deliberately ripped from their parents, including toddlers and babies.   This fall, we reported that hundreds of these families had still not been located, triggering a promise by President-elect Biden to create a task force to address family separation. We welcome all assistance the Biden administration can provide to help us find these families. But, critically, the new administration must do more than that if it is going to fully address the family separation tragedy it inherited.   Understandably, many are asking why hundreds of families remain missing after so many years and what has happened to the thousands of other families who were located.     The reason so many families have not been located is because the Trump administration withheld their names and then failed to disclose information that could have helped us find them. Indeed, it was not until 2019 that we even received the supposedly final list of children, and by then some of the children had been without their parents for nearly two years.    Making matters worse, the contact information for the families frequently was stale, too vague, or non-existent. While an ACLU-convened steering committee (consisting of the Paul Weiss law firm, KIND, WRC, and Justice in Motion) has nonetheless managed to find most of the families even with this limited information, the parents of 611 children have yet to be located.     We repeatedly asked the Trump administration whether it had additional contact information, and, over and over, the administration told us it did not. But last month, in response to the international outcry over the still-missing families, the administration suddenly gave us phone numbers and addresses, claiming it was an oversight. Beyond any additional assistance the Biden administration can give us to find the still-missing families, it must do four things.   First, it must permit deported families to reunite in the United States. Many mistakenly assume that only the missing 611 remain separated. But the Trump administration deported hundreds of other parents without their children (often telling the parent that their child would meet them on the plane only to have the plane take off without the child). We have found many of these still-separated families, but the Trump administration gave them only two brutal choices: remain separated from their children or bring their children back to the very danger they fled in the first place. The Biden administration has the power to immediately “parole” these families into the United States, allowing them to reunite in safety here.   Second, the Biden administration must use its executive power to protect these families from deportation once reunited in the U.S. The Trump administration has been deporting them, but given what these families have endured, that is unconscionable. And once their deportations are deferred, the Biden administration must explore all available means to confer permanent legal status. Importantly, this will also help us locate the missing 611, because families will be more willing to come forward if they know they will be safe.   Third, the Biden task force must create a fund to provide basic necessities, including trauma-informed care for both the children and parents. Without this help, these families stand little chance. As the American Academy of Pediatrics has concluded, the Trump administration engaged in “child abuse” that has caused lasting trauma. Physicians for Human Rights has gone further and called it torture.   Finally, the task force must ensure there are no more family separations so we do not repeat this tragedy.   The Biden administration is inheriting tremendous challenges. But addressing family separation should be a no-brainer. In 2018, when the country learned that babies and toddlers were being ripped from their parents’ arms, the public revulsion spanned the ideological spectrum. The sentiment was uniform: our government should not take babies from their parents and use them as political pawns.    Ultimately, it is a moral imperative to eliminate the historic stain on this country. I have been doing this work at the ACLU for nearly 30 years and have never seen a more inhumane practice or one that received such widespread, swift, and unequivocal condemnation. I still worry, though, that all the talk of aggregate statistics and abstract policy prescriptions will blur the human dimension, and the fact that the trauma caused to each of these children by family separation is its own tragic story.     I hope the Biden administration will remember stories like that of one of the first reunited families in our case, whose mother told us that her 4-year-old son kept asking if they were going to take him away again. Or the little boy with glasses whose mother said that he was unable to get his glasses case before he was taken away screaming, and that she worried every day whether the government would get him a new pair if they broke.   Or the parents who knew their children would be taken and asked, but were denied, the opportunity for a moment to brace the children for what was about to happen. Or the mother who was forced to watch as agents drove away with her 18-month-old baby while the baby craned his neck to get one last glimpse of her. Or all the other mothers and fathers who were not even told where their children had been taken or given the chance even to say goodbye, left only to wave through a glass window.

With two swift actions last week, the Supreme Court proved it is alarmingly disinterested in protecting women’s lives.    The first action by the court involved mifepristone, a drug used for medication abortion and miscarriage care. The Supreme Court

As the Trump presidency draws to an end, we near the 4-year anniversary of the birth of one of its defining and most damning legacies: the Muslim ban. When Trump implemented his first Muslim ban, the public response was immediate. Crowds of protesters flooded airports in support of Muslims and other impacted communities who were immediately being detained or turned away all over the country. Lawyers and immigrants’ rights organizations nationwide, including the ACLU, filed a series of lawsuits as court after court ruled to block the ban. Despite the backlash, Trump issued new iterations of the ban to circumvent the law and conceal its real purpose, which in his own words was to block Muslims from entering the United States. Ultimately, the Supreme Court allowed the third iteration of the ban to be implemented. The Trump administration then rescinds the ban. 

The nation stands alert, anxious about armed actions planned for Jan. 17 and Jan. 20 to contest the election of Joe Biden and Kamala Harris. The FBI has warned of the potential for armed demonstrators targeting legislatures, and extremist groups have made their intentions clear on message boards. Last week we witnessed an insurrection, with white supremacists storming our nation’s capital, some ready to take whatever actions they thought necessary to ensure their leader remained in power, despite decisive Electoral College and popular votes against him. The insurrectionists killed a police officer, brutally beat news reporters and other police officers, and chanted, “Hang Pence.” The Capitol was breached, leadership were rushed to secret secure locations, congressional offices were stormed, and bombs were planted outside the offices of the Democratic and Republican National Conventions. Many members of Congress and staff and those charged with securing their safety feared for their lives. After a long summer of protesting to affirm to the nation that Black Lives Matter, we saw the Confederate flag on parade in the U.S. Capitol. As the nation steels itself for the threat of repeat performances across the country, some have asked what states can do to protect their people and representatives. In particular, can weapons be banned at protests? In the ACLU’s view, the answer is yes — so long as the ban is applied neutrally to all, without regard to the viewpoints of a march. To be clear, what happened at the Capitol on Jan. 6 was not a protest, but a violent insurrection that left five dead and many more injured and endangered. Violence, threats, and intimidation have no place in the exchange of ideas and are not protected by the First Amendment. But where the issue is a protest and one that is peaceful, can states nonetheless ban protesters from carrying guns? Yes. The U.S. Supreme Court has held that the Second Amendment protects a right to possess a gun in one’s home, but that right is not absolute. As the Supreme Court stated, it is not a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The Second Amendment permits “reasonable regulations” of arms. Indeed, the court was explicit that nothing in its opinion recognizing a right of individuals to bear arms “should be taken to cast doubt on … laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” We have longstanding laws to keep guns out of sensitive places like government buildings and airports. Visitors can’t bring guns into the U.S. Capitol or the Supreme Court. In other jurisdictions, people can’t bring a gun to polling sites during voting. Police confiscate any weapons that revelers bring to the National Mall on the Fourth of July every year. The rationale for these constraints is clear: Guns create safety risks that the state has a right to regulate. While some regulations of the possession and use of guns raise Second Amendment concerns, a ban on carrying weapons at a protest does not. The result is the same under the First Amendment. To be sure, openly carrying a gun can send a message, but the government has long had the power to set limits on the time, place, and manner of assemblies. Such restrictions need only be reasonable and content-neutral, meaning that they apply equally to all, regardless of ideology, political affiliation, or message. The government can limit the hours and volume of protests held outside hospitals or schools, for example — as long as the rule applies without regard to the content of the speech. Similarly, a ban on guns is a reasonable time, place, and manner restriction on a protest — provided that it is applied uniformly to all protests and all protesters. It’s about safety, not expression. Importantly, barring weapons at a protest doesn’t stop gun owners from speaking about any topic. It doesn’t stop speech in protest of the restriction, nor does it stop speech however odious or hateful. Those who seek to protest Donald Trump’s loss in the November election are free to do so — as long as they do so peacefully. And states and local governments also have the authority to bar weapons at protests. Our right to speech is about words, not weapons.