David Cole is the National Legal Director of the ACLU and the Honorable George J. Mitchell Professor in Law and Public Policy at the Georgetown University Law Center.
 (May 2017)


Trump’s Travel Bans—Look Beyond the Text

Protesters demonstrating against President Trump’s first travel ban, Los Angeles International Airport, January 2017
Imagine if a mayoral candidate promised repeatedly during a campaign that he would keep African-Americans out of the town, and then, upon election, adopted a policy barring entry from seven cities with populations that were 90 percent African-American. Suppose, further, that after that order was struck down, he issued a new one barring entry from six majority-black cities, and his aides stated publicly that it was only a technical adjustment. Would anyone doubt that the policy discriminated on the basis of race? Would we worry about chilling candidate speech? Substitute Muslim for African-American, country for city, and president for mayor, and you’ve got Trump’s executive orders.

Robert B. Silvers (1929–2017)

Robert B. Silvers in his office at The New York Review of Books, early 1980s
Until I arrived at the Review as an editorial assistant, I had never met anyone who so rarely engaged in idle pleasantries as Bob. His daily language was pared down, accurate, and sincere. I found his example revelatory, and I would ponder his usage and elisions like a giddy college freshman. Bob would never, for instance, wish us a good weekend. Presumably he had no particular investment in the quality of our weekends, and possibly he didn’t even know when his assistants’ weekends were, since we took turns working Saturday and Sunday shifts with him. But was he also, I wondered, rejecting the implied value of a good weekend? Is the goal of leisure time pleasure? Edification? Novel experience? If we couldn’t settle on criteria, we couldn’t possibly arrive at a valuation, in which case why bother asking on Monday morning how someone’s weekend had been?

Why Free Speech Is Not Enough

Jeff Sessions being sworn in as US attorney general, with his wife Mary Sessions, President Donald Trump, and Vice President Mike Pence, February 2017

The Taming of Free Speech: America’s Civil Liberties Compromise

by Laura Weinrib

Free Speech and Unfree News: The Paradox of Press Freedom in America

by Sam Lebovic
“Civil liberties once were radical.” So begins Laura Weinrib’s important revisionist history of the origins of American civil liberties, provocatively entitled The Taming of Free Speech: America’s Civil Liberties Compromise. In her account, the fight began in the early twentieth century as a radical struggle for workers’ rights and redistributive justice. The central claim was for a “right of agitation,” which its proponents believed predated the Constitution and afforded workers the right to engage in direct collective action to pressure employers for higher wages and better working conditions.

Trump Is Violating the Constitution

Donald Trump just before he was sworn in as president of the United States, Capitol Hill, January 20, 2017
The president of the United States is supposed to serve the American people, not himself, and certainly not the interests of foreign states. President Trump chose to seek this office, and this responsibility. He is trying to have it both ways, serving himself, his family, and his far-flung business interests while simultaneously making foreign and domestic policy decisions that will inevitably have direct effects on his personal holdings. That way lies scandal, corruption, and illegitimacy.


Poetry in the Courtroom

Gavin Grimm, Gloucester, Virginia, August 22, 2016

On Friday, April 7, Judge Andre Davis of the US Court of Appeals for the Fourth Circuit resorted to a poem by the Palestinian-American writer Naomi Shihab Nye, in an extraordinary opinion praising a young man who fought for his rights—and lost. Judge Davis’s opinion attests to the courage of Gavin Grimm for standing up for his rights, even as the court denied his request for vindication of those rights.

It’s Still a Muslim Ban

A custodian working under a portrait of an immigrant from the early twentieth century at Ellis Island, New York, January 31, 2017

Trump has issued a replacement executive order, one that his lawyers evidently felt would be easier to defend. Importantly, the new order still shares the central defect of its predecessor: it is a “Muslim ban” in intent and effect. It would be difficult to imagine a stronger case of impermissible religious discrimination than this one. The president has admitted his purpose on multiple occasions.

Trump in Court

High school students protesting Trump's travel ban at Foley Square, New York, February 7, 2017

The overwhelming rejection of Trump’s travel ban by the courts and by the American public has been triggered by an order directed at foreign nationals, not US citizens. It wasn’t our rights that were at stake, but their rights. If this is what measures aimed at foreigners trigger, imagine what will happen if and when he issues an executive order that infringes on any Americans’ rights.

Five Questions for Jeff Sessions

Senator Jeff Sessions, with Senators John Cornyn and Mark Pryor, July 25, 2006

As a matter of longstanding policy, the ACLU does not take positions supporting or opposing nominees for office, and as a result it rarely testifies in confirmation hearings. But we are sufficiently concerned about Sessions’s record that we have elected to depart from our usual practice and speak out—not to oppose the nomination, but to insist that the many questions about Sessions’s record must be answered before the Senate votes on his nomination for attorney general.