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. (March 2017)

FEATURED

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.

After Dallas

A prayer vigil following the shooting of five police officers, Dallas, Texas, July 8, 2016

It is the “war” on crime itself that is most to blame. More than any other nation in the world, we turn to the state-sanctioned compulsion of the criminal justice system to “solve” social problems. Our “first responders” are too often the police, bearing handcuffs and guns rather than public assistance or life support.

The Terror of Our Guns

An AR-15 rifle, an assault weapon similar to the one used by Omar Mateen in the June 12 shooting in Orlando, on display at the National Rifle Association’s annual meeting, Louisville, Kentucky, May 20, 2016

The Gunning of America: Business and the Making of American Gun Culture

by Pamela Haag

Guns Across America: Reconciling Gun Rules and Rights

by Robert J. Spitzer
The long tradition of gun regulations almost certainly means that the Supreme Court will not construe the Second Amendment to invalidate most gun laws on the books today, but that simply leaves the matter to the political process, where the NRA is plainly winning. If history is any guide, it will succeed in thwarting any new gun control initiative prompted by the Orlando massacre.

IN THE REVIEW

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.

What James Comey Did

A Trump supporter at a campaign rally in Golden, Colorado, October 2016
Whatever else one might say about the just-concluded 2016 presidential election, one thing is certain: FBI Director James Comey played an outsized and exceptionally inappropriate part. His highly prejudicial announcement on October 28, just eleven days before the election, that he had reopened an investigation into Hillary Clinton’s private e-mail server ensured that the final critical days of the campaign were taken up with innuendos and suppositions set off by his action.

NYR DAILY

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.

The Way to Stop Trump

Senator John McCain (right) with fellow senators Lindsey Graham, Joe Lieberman, and Scott Brown, introducing legislation to refine the Detainee Treatment Act of 2005, Washington, DC, March 10, 2011

Will Trump be able to put in place all the worst ideas he tossed out so cavalierly on the campaign trail? Building a wall; banning and deporting Muslims; ending Obamacare; reneging on climate change treaty responsibilities; expanding libel law; criminalizing abortion; jailing his political opponents; supporting aggressive stop-and-frisk policing; reviving mass surveillance and torture? Whether Trump will actually try to implement his proposed plans, and more importantly, whether he will succeed if he does try, lies as much in our hands as in his.

Comey Breaks the Rules

FBI director James Comey, Washington, DC, July 7, 2016

FBI director James Comey prides himself on being independent. But “independence” doesn’t excuse not following the rules. By elevating his own concerns about his personal reputation above the rules, Comey will forever be remembered as the FBI director who abused the power of his office to interfere in an imminent presidential election.

Police Injustice: How the Court Fails

Though it has just concluded a term in which its rulings have advanced the cause of justice, the Supreme Court continues to approach criminal justice cases without confronting the reality of race-based policing, as in the decision issued in the second-to-last week of the term, Utah v. Strife. As a result, the rules it promulgates too often exacerbate rather than curtail discriminatory law enforcement.