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.
 (June 2017)

IN THE REVIEW

Trump’s Constitutional Crisis

Attorney General Jeff Sessions with now-fired FBI Director James Comey at a meeting of federal law enforcement officials at the Justice Department, Washington, D.C., February 2017
James Comey is no saint. But thanks to Donald Trump, he is now a martyr. On May 9, in a twist that would have seemed far-fetched even on House of Cards, President Trump fired Comey as director of the FBI on the recommendation of Jeff Sessions, his attorney general. According …

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
From its first issue in 1963, Robert Silvers was either co-editor with Barbara Epstein or, after her death in 2006, editor of The New York Review. Bob worked almost to the very end of his life, which would be no surprise to those who knew him well, including those who have written these brief memoirs.

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.

NYR DAILY

Trump’s Constitutional Crisis

Attorney General Jeff Sessions with now-fired FBI Director James Comey at a meeting of federal law enforcement officials at the Justice Department, Washington, D.C., February 2017

On May 9, in a twist that would have seemed far-fetched even on House of Cards, President Trump fired James Comey as director of the FBI on the recommendation of Jeff Sessions, his attorney general. The notion that Trump and Sessions took action against Comey because of his unfairness to Clinton may be the most brazen effort at “fake news” or “alternative facts” yet from a president who has shown no reluctance to lie, even and especially when the truth is plain for everyone to see.

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.