FAN 50 (First Amendment News) ACLU’s 2015 Workplan & the First Amendment — Anthony Romero Responds

In my last FAN post I noted that the ACLU’s 2015 Workplan (an eight-page informational and fundraising document) had only a passing reference to the First Amendment — a mainstay of the ACLU since its founding. There was no highlighted listing of free speech rights in the categories of activities to be protected. Furthermore, a February 24, 2015 two-page ACLU fundraising letter concerning the 2015 Workplan contained no reference whatsoever re protecting free speech rights. In light of this, I invited the ACLU’s Executive Director Anthony Romero “to explain why protecting our First Amendment freedoms did not receive greater and more expanded attention in the national ACLU’s 2015 Workplan.”

Mr. Romero kindly accepted my invitation and his response of February 27th is set out below. As you can see, protecting free speech freedoms continues to be an important part of the ACLU’s mission even if its fundraising letters sometimes downplay or overlook all the fine First Amendment work the group does.

Burt Neuborne

Burt Neuborne

Unfortunately, Mr. Romero declined to do a Q&A with me, for now at least — but my invitation remains open.

Meanwhile, I am pleased to say that I am scheduled to do a Q&A with Professor Burt Neuborne, who served as the National Legal Director of the ACLU from 1981-86 and who has just published a book entitled Madison’s Music: On Reading the First Amendment.

Stay tuned.  

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Dear Mr. Collins:

Anthony Romero

Anthony Romero

I appreciate your concern that the 2015 Workplan did not contain a section devoted to the ACLU’s efforts defending First Amendment freedom of expression, but I want to assure you that this remains a robust, bedrock area of our work to which we remain fully committed. As we note in the Workplan, the issues we chose to focus on in that document are just the tip of the iceberg in terms of the ACLU’s work. The Workplan is our annual opportunity to highlight certain broad issue areas and our funding goals to continue to move forward in those particular areas of our work.

Moreover, the issue areas outlined in our Workplan tend to be those where there exists a national trend – such as a coordinated effort to erode rights (e.g., reproductive rights, voter ID laws) or an opportunity for new gains (e.g., freedom to marry, mass incarceration) – or those where recent events warrant a highly coordinated, national effort on the part of the ACLU (e.g., government surveillance, privacy & technology, police misconduct).

First Amendment issues come up throughout our work and play an important role in many of our cases. At the national office, this work comes under the umbrella of our Speech, Privacy, and Technology Project which is dedicated to protecting and expanding the First Amendment freedoms of expression, association, and inquiry; expanding the right to privacy and increasing the control that individuals have over their personal information; and ensuring that civil liberties are enhanced rather than compromised by new advances in science and technology. The project is currently working on a variety of issues, including political protest, freedom of expression online, privacy of electronic information, journalists’ rights, scientific freedom, and openness in the courts.

The project routinely briefs critical First Amendment issues in the Supreme Court and the federal Courts of Appeal. In this past year, we have authored and submitted three friend-of-the-court briefs to the Supreme Court arguing for maximal free speech protections, including: a brief arguing that a political candidate had the right to challenge a law criminalizing “political lies,” (brief available here); a brief arguing that the government must meet a high bar in order for a jury to convict an individual for a “true threat,” whether online or off (brief available here); and, just last week, a brief supporting the Sons of Confederate Veterans’ challenge to Texas’ censorship of “offensive” messages on specialty license plates (brief available here). The ACLU is and has always been fully committed to protecting free speech, even when that speech may be offensive or controversial to many.

[RC: The ACLU also recently filed an amicus brief in the Supreme Court in Williams-Yulee v. The Florida Bar, the judicial election campaign solicitation case.]

The project also maintains a strategic litigation docket focused on new First Amendment issues of national concern. For example, in the last few months we filed a First Amendment claim on behalf of media clients challenging Ohio’s censorship of execution access (case page here), as well as a groundbreaking challenge to Arizona’s recent anti-nudity law – one of numerous such state bills passed in the name of prohibiting “revenge porn,” but drafted so broadly as to function as a broad ban on sharing lawful nudity; that case page is available here. Of course, we also engage in diverse non-litigation advocacy and public education on free expression issues; you can read about our recent First Amendment-related issue advocacy at this link.

aclu_logoFurthermore, our First Amendment freedom of expression work is somewhat unique in that a large share of it involves responding to threats or incidents that occur on the local level and not generally as part of a broader, coordinated threat to freedom of expression. For as long as the ACLU has existed, the vast majority of First Amendment cases have been litigated by our affiliates. At the state level, First Amendment litigation tends to comprise a large portion – in many states perhaps even a majority – of ACLU affiliates’ litigation dockets.

So while free speech work remains a core, priority area of focus for the ACLU, much of the on-the-ground work of preventing or challenging restrictions of freedom of expression is carried out by ACLU attorneys and lobbyists in our local affiliate offices—often, with assistance and resources from the national office. A salient example of this is the ACLU of Missouri’s recent work to protect the rights of protesters in Ferguson; the national office assisted when a federal agency (the FAA) entered a no-fly zone which we believed to improperly limit media access. I’ve also included (at the bottom of this email) some links to our news releases on a selection of recent, ACLU First Amendment cases brought by both the national office and state affiliates, for your reference.

Mr. Collins, I hope this reply provides some clarity with respect to your concerns. Please rest assured that the ACLU remains committed to staunchly defending freedom of speech and expression.

All my best,

Anthony Romero

ACLU work on freedom of protest in Ferguson (highlights)

First Amendment Lawsuit Challenges Arizona Criminal Law Banning Nude Images
https://www.aclu.org/free-speech/first-amendment-lawsuit-challenges-arizona-criminal-law-banning-nude-images

Supreme Court Hears Argument in Case Alleging Bush Protestors Were Treated Less Favorably than Supporters by Secret Service
https://www.aclu.org/free-speech/supreme-court-hears-argument-case-alleging-bush-protestors-were-treated-less-favorably

Coalition Files Lawsuit Over Controversial “Ag Gag” Law
https://www.aclu.org/free-speech/aclu-idaho-and-coalition-files-lawsuit-over-controversial-ag-gag-law

ACLU-NJ Stands Up for Student’s Free Speech Rights
https://www.aclu-nj.org/news/2014/03/28/aclu-nj-stands-students-free-speech-rights

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Last Scheduled FAN Post, #49: “ACLU “2015 Workplan” sets out narrow range of First Amendment Activities

Last FAN Post, #49.2: “Court denies cert in ballot initiative disclosure case

Next Scheduled FAN Post, #51: Wednesday, March 11, 2015

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5 Responses

  1. Brett Bellmore says:

    Not impressed. Dropping all mention of a major part of the ACLU’s work from the promotional literature? What effect will that have in the long term on who joins and funds the ACLU? And what effect will that have on what they can afford to do in the way of that work?

    They’re already having a tough time with their donors and supporters over defending freedom of political speech. It’s only going to get worse as they encourage support from people who don’t like that freedom, and discourage supporters who do like it.

    On another topic, how many different captas does this site have? Seven?

  2. Joe says:

    Since Brett has shown selective concern on liberty, it is not really surprising them highlighting a range of things they are working on since it doesn’t include guns or money in politics (rather, the side of this greatly disputed question he disagrees with) doesn’t impress him. His focus on “Democrats” threatening liberty repeatedly shows he cares more about certain liberties than others.

    ACLU continues to support freedom in political speech even if they split over one aspect it that Brett focuses much of his concerns over (cf. concerning about voting rights, which has 1A interests as noted by Burt Neuborne’s new book that Brett is quite willing to give the government a lot of power over, even when there is a lot of evidence that it leads to depriving people of rightful liberties).

    As noted at PrawfsBlawg, as compared to other areas, freedom of speech is much more safe. If so, fund raising would more likely focus on more glaring problem spots. It is duly noted that there are a few issues there that the organization divides over, which probably factors into the workplan. I do think public protests provide a clear concern in the 1A context.

  3. Brett Bellmore says:

    Actually, since I happen to like the ENTIRE Bill of Rights, I think your beef with me is that I *don’t* have a selective concern for liberty, but am instead also concerned with the aspects of it you dislike.

  4. Joe says:

    I provided an example. There are others. BOTH political parties support limiting liberty. A consistent “libertarian” would have a pox on both their houses strategy, not continuously (to make a trend notable, be it not complete) citing one side. But, libertarians repeatedly aren’t consistent. They favor certain rights over others, concerned about certain things. This is unremarkable since different parties do that. It is just tiresome when they give themselves too much credit while trying to shame others.

    I support all the amendments. You “like” of them in practice amounts to favoring one side much more — actions over words there.

  5. Brett Bellmore says:

    “BOTH political parties support limiting liberty.”

    Did I ever deny that? A consistent libertarian who doesn’t want to totally waste his time, living as he does in a nation where the major parties have rigged the system to make all third party efforts futile, must chose his evil. And I have caculated that the right’s efforts at limiting liberties are likely to be less successful than the left’s.

    That the ACLU is increasingly partisan in it’s attention to civil liberties issues contributes to that calculation.