We Shall Overcome

voters by party

The above data relate to the state of Georgia and were published by the Atlanta Journal-Constitution on June 29.

And let me take this occasion to offer heartiest congratulations to the stout-hearted progressives here at Happy Acres who hosted an extraordinarily informative session on how to register voters. We will be working to offer voter registration opportunities not only to our residents but also to our several dozen employees, and we’ll be volunteering at other locations as well.

We hope that the moral arc of the universe bends toward justice. But, just to be sure, we’ll give it a shove in that direction.

Onward Christian Soldiers

Antonin Scalia died on February 13, 2016, eight months before the November election. But Mitch McConnell said it was vital to wait for the next election to select his successor. Anthony Kennedy announced his resignation on June 27, 2018, four months before the election. But Mitch McConnell announced it was vital not to wait for the next election to pick his successor. Do these two positions reflect shameless intellectual dishonesty and blatant hypocrisy?

No, they do not. They are perfectly consistent.

How is that?

The golden threat that runs through McConnell’s reasoning is that only Republicans get to pick Supreme Court justices. Democratic presidents and Senates have no say in the matter.

Why is that?


  • once the sperm fertilizes the egg, God immediately supplies a soul to the zygote, and anyone who harms the zygote is guilty of an abominable crime and must be severely punished, and because
  • God hates gay people, and because
  • God is none too thrilled about affirmative action, and because
  • in consequence of the foregoing, God hates Anthony Kennedy and all his works, and demands that we will supply Him with a justice who will ensure that young women are back to aborting themselves with coat hangers, that gays are put back in their place, and that rights of persons of western European descent are jealously protected.

So this means that a good portion of the American public are in a state of orgasmic ecstasy over Kennedy’s replacement, and that they will all be sure to turn out and vote for Trump-supporting congressmen and senators?

Most probably.

Will that be a disaster?

No, it will not, because there are more of us than there are of them, and we are mad as hell, and we are all going to vote in 2018 and 2020.

There are lots of headlines saying Kennedy’s successor will change the court for a generation to come. Is that right?

Kennedy is mostly conservative. The other night I heard a talking head say—and therefore I know it is true—that on the fifteen 5-4, liberal-conservative decisions this term, Kennedy voted with the conservative majority every single time. But on abortion, gay rights, and affirmative action, it will make a difference. Jeffrey Toobin says that abortion will be illegal in 20 states by 18 months from now. Sounds about right to me.

So we should all go bang our heads against the wall, right?

No, that is not right. We have to win the 2020 election and pack the court. Republicans have violated norm after norm. We have no choice but to react in kind, taking advantage of the Constitution’s black letter law:

The size of the Supreme Court is not fixed by the Constitution. It is determined by Congress.

The original Judiciary Act of 1789 set the number of justices at six. When the Federalists were defeated in 1800, the lame-duck Congress reduced the size of the court to five — hoping to deprive President Jefferson of an appointment. The incoming Democratic Congress repealed the Federalist measure (leaving the number at six), and then in 1807 increased the size of the court to seven, giving Jefferson an additional appointment.

In 1837, the number was increased to nine, affording the Democrat Andrew Jackson two additional appointments. During the Civil War, to insure an anti-slavery, pro-Union majority on the bench, the court was increased to 10. When a Democrat, Andrew Johnson, became president upon Lincoln’s death, a Republican Congress voted to reduce the size to seven (achieved by attrition) to guarantee Johnson would have no appointments.

After Ulysses S. Grant was elected in 1868, Congress restored the court to nine. That gave Grant two new appointments. The court had just declared unconstitutional the government’s authority to issue paper currency (greenbacks). Grant took the opportunity to appoint two justices sympathetic to the administration. When the reconstituted court convened, it reheard the legal tender cases and reversed its decision (5-4).

Trump Weeps Crocodile Tears over Murder of Five Hardened Enemies of the People


Surviving enemy of the people to Trump: “I couldn’t give a fuck about your prayers.

Actually, the Trumpster was scared shitless that next time the shooter might be wearing a MAGA hat—and the Trumpster might get blamed.

And, yes, that might very well happen.

That’s why I chose to publish under a pseudonym. If you think that’s cowardly, then you are entitled to your opinion. I think it’s prudent.



I do not advocate yelling at people at restaurants.

But I reject the argument that yelling at restaurants is bad for progressives, because it just heats up the Republican Base.

The Republican Base is as het up as it could be. As is our side.

Fortunately, there are more of us than there are of them.

So let’s all go to the polls and vote.

After which, Sarah Huckabee Sanders can slink back into that obscurity which she so richly merits.

Anthony Kennedy’s Retirement


Yes, it’s really, really bad.

But here are a couple of thoughts.

First of all, it’s Congress that determines the number of justices on the Supreme Court. Roosevelt’s attempt to “pack” the Court in 1937 failed politically. But things are different now. With the Republicans having violated every norm, and having stolen the seat Gorsuch now occupies, it will be up to us in 2021 to do some norm violatin’ of our own. Too bad, but that’s how it is.

In the meantime, Trump will try, and will presumably succeed, in replacing Kennedy with a wingnut.

This will give Republicans of a certain stripe one less reason to show up and vote. (They may show up and vote anyway, but at least there will be one less reason to motivate them.)

And it will righteously piss off the progressives. We were going to turn out in droves anyway. Now, you bet we’re going to turn out in droves.

In Spite of Everything


Atlanta lemonade stand raises $13K for separated immigrant families

When an Atlanta mother told her two young children about families being separated at the U.S.-Mexico border, her 6-year-old son suggested starting a lemonade stand to help.

Shannon Cofrin Gaggero set a goal of $1,000, an amount she considered ambitious. A week later, the online and in-person campaign has raised nearly 13 times that amount.

The family and other volunteers hosted the lemonade stand and bake sale in Virginia-Highland on Sunday. While that event netted $1,100, the majority of donations — more than 200 of them — have come from the paired virtual Facebook event.

The local fundraiser follows the trend of hundreds of thousands of people worldwide donating to nonprofit organizations, prompted by images and audio of children crying for their parents. A Silicon Valley couple, David and Charlotte Willner, has raised more than $20,000,000.

You can donate here.




I Has Conspircy Thery


Paul Krugman predicts that Trump’s trade war is going to result in terrible economic disruption—quelle surprise—and that, when the disruption becomes evident even to those of the meanest intelligent, Trump and his minions will respond by finding someone to blame. Quelle surprise encore.

Globalists, speculators, rootless cosmopolitans, people like George Soros.

I think you get the gist.

Sounds about right to me.

Those Russian social media bots are gonna be hard at work, again.

Gonna get ugly, folks.


So Much Winning


The regulations of the Securities and Exchange Commission require the filing of form 8-K when an event occurs outside the ordinary course of business that materially affects a publicly traded company. Today, Harley-Davidson, Inc., filed a form 8-K stating in relevant part as follows:

The European Union has enacted tariffs on various U.S.-manufactured products, including Harley-Davidson motorcycles. These tariffs, which became effective June 22, 2018, were imposed in response to the tariffs the U.S. imposed on steel and aluminum exported from the EU to the U.S.

Consequently, EU tariffs on Harley-Davidson motorcycles exported from the U.S. have increased from 6% to 31%. Harley-Davidson expects these tariffs will result in an incremental cost of approximately $2,200 per average motorcycle exported from the U.S. to the EU.

Harley-Davidson believes the tremendous cost increase, if passed onto its dealers and retail customers, would have an immediate and lasting detrimental impact to its business in the region, reducing customer access to Harley-Davidson products and negatively impacting the sustainability of its dealers’ businesses. Therefore, Harley-Davidson will not raise its manufacturer’s suggested retail prices or wholesale prices to its dealers to cover the costs of the retaliatory tariffs. In the near-term, the company will bear the significant impact resulting from these tariffs, and the company estimates the incremental cost for the remainder of 2018 to be approximately $30 to $45 million. On a full-year basis, the company estimates the aggregate annual impact due to the EU tariffs to be approximately $90 to $100 million.

To address the substantial cost of this tariff burden long-term, Harley-Davidson will be implementing a plan to shift production of motorcycles for EU destinations from the U.S. to its international facilities to avoid the tariff burden. Harley-Davidson expects ramping-up production in international plants will require incremental investment and could take at least 9 to 18 months to be fully complete.

Harley-Davidson maintains a strong commitment to U.S.-based manufacturing which is valued by riders globally. Increasing international production to alleviate the EU tariff burden is not the company’s preference, but represents the only sustainable option to make its motorcycles accessible to customers in the EU and maintain a viable business in Europe. Europe is a critical market for Harley-Davidson. In 2017, nearly 40,000 riders bought new Harley-Davidson motorcycles in Europe, and the revenue generated from the EU countries is second only to the U.S.

To Bigotry No Sanction, To Persecution No Assistance

To the Hebrew Congregation in Newport, Rhode Island

Newport, R.I., 18 August 1790


While I receive, with much satisfaction, your Address replete with expressions of affection and esteem; I rejoice in the opportunity of assuring you, that I shall always retain a grateful remembrance of the cordial welcome I experienced in my visit to Newport, from all classes of Citizens.

The reflection on the days of difficulty and danger which are past is rendered the more sweet, from a consciousness that they are succeeded by days of uncommon prosperity and security. If we have wisdom to make the best use of the advantages with which we are now favored, we cannot fail, under the just administration of a good Government, to become a great and a happy people.

The Citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.

It would be inconsistent with the frankness of my character not to avow that I am pleased with your favorable opinion of my Administration, and fervent wishes for my felicity. May the Children of the Stock of Abraham, who dwell in this land, continue to merit and enjoy the good will of the other Inhabitants; while every one shall sit in safety under his own vine and figtree, and there shall be none to make him afraid. May the father of all mercies scatter light and not darkness in our paths, and make us all in our several vocations useful here, and in his own due time and way everlastingly happy.

George Washington

Shouting at People in Restaurants

fire and ice

This seems to be the day when we debate whether it is a good idea or a bad idea to shout at Trump officials and supporters while they eat in restaurants. Answer: not a good idea.

But the question is wrong. The question should be whether we should continue to recognize Trump officials and supporters as members of polite society. The question is, should we pretend we can have a normal conversation with them, when we cannot in fact have a normal conversation with them because they manfully refuse to recognize reality—or to admit that empathy is a valid human emotion?

The answer is no, we can’t, and no, we shouldn’t pretend.

IMHO, the right response is not fire. The right response is cold, hard ice.

Some say the world will end in fire,

Some say in ice.

From what I’ve tasted of desire

I hold with those who favor fire.

But if it had to perish twice,

I think I know enough of hate

To say that for destruction ice

Is also great

And would suffice.

– Robert Frost

No One Left

4 February 2017, West Point Cadets tour the Permanent Exhibition.

Trump Calls for Depriving Immigrants Who Illegally Cross Border of Due Process Rights

First they came for the legal rights of the undocumented immigrants.

And I did not speak out, because I was not an undocumented immigrant.

Then they came for the legal rights of the legal immigrants.

And I did not speak out, because I was not a legal immigrant.

Then they came for the legal rights of the journalists.

And I did not speak out, because I was not a journalist.

Then they came for the legal rights of the white working class.

And there was no one left to speak for them.

Let’s Just Shoot the Messenger


Someone named David Atkins, in a post titled The Loyal Trump Supporter Isn’t The Same As The Persuadable Trump Voter, heavily criticizes the New York Times piece that was the main subject of my immediately preceding post.

We can stipulate that a majority of folks who self identify as Republicans and who regularly vote the Republican ticket have proved to be cult followers, lovers of authoritarianism, consumed by racial and cultural resentment, at war with science, reason, and decency. That sounds harsh, but if the foo shits, wear it.

We can stipulate further that the number of folks who self identify as Republicans is decreasing. That point is made in the New York Times piece, and elsewhere.

And, lastly, we can stipulate that some self identified Republicans do not embrace authoritarianism, etc., etc.

The questions that remain are

  1. How many people are there in each of the two categories of self-identified Republicans?
  2. What will the hard core cultists tolerate, and what further actions by Trump might cause them—or at least a lot of them—to break ranks?

For example, let’s say Trump herds a couple dozen lions into the Houston Astrodome, and then whips a couple thousand immigrant kids into the arena? That’d be a hell of a deterrent, wouldn’t it?

And, what happens when the trade war gets really hot, the stock market falls, and small businesses can’t sell their products? Will the country club set stay with him?

  1. Percentages of “support” are important, but so are relative differences in enthusiasm. How will that play out?

And lastly,

  1. Is it a good idea or not, all things considered, to yell at Sarah Huckabee, if we happen to find ourselves at the same restaurant?

Question 4 is a legitimate subject of debate.

But progressives need to worry less about the answers to questions 1, 2, and 3. Whatever the answers are, we progressives have no choice. We have to resist.

But while we resist, let us make sure we are as effective as we can be. That means, among other things, keeping our eyes wide open, and not shooting the messenger when he brings bad news.

I grieve for the lost humanity of so many of my fellow Americans, but I have to confront it.

A Cure for Optimism, an Antidote to Pessimism

sunny day

A Cure for Optimism

If you got up this morning in a bright, sunny mood, you may not want to read the New York Times story As Critics Assail Trump, His Supporters Dig in Deeper. The headline tells it all. I can’t bring myself to quote or summarize it.

An Antidote to Pessimism

Meanwhile, there are indications that the Child Separation Crisis is causing Trump supporters to be read out of polite society. George Will and Steve Schmidt are telling us to vote Democratic in 2018. Young Trump Administration aides in D.C. can’t get dates. Cabinet secretaries can’t have a peaceful meal in D.C. Trump sock puppet spokespeople can’t eat in suburban Virginia restaurants.

I make it a general rule not to give adults advice on etiquette, and I’ll follow that rule here. That said, I think Jennifer Rubin has a pretty good observation this morning on the restaurant issue:

It depends on how you view the child-separation policy. If you think the decision to separate children from parents as a means of deterring other asylum seekers is simply one more policy choice, like tax cuts or negotiations with North Korea, then, yes, screaming at political opponents is inappropriate. Such conduct is contrary to the democratic notion that we do not personally destroy our political opponents but, rather, respect differences and learn to fight and perhaps compromise on another day. If, however, you think the child-separation policy is in a different class — a human rights crime, an inhumane policy for which the public was primed by efforts to dehumanize a group of people (“animals,” “infest,” etc.) — then it is both natural and appropriate for decent human beings to shame and shun the practitioners of such a policy.

This exception to the rule of polite social action should be used sparingly …

Nevertheless, it is not altogether a bad thing to show those who think they’re exempt from personal responsibility that their actions bring scorn, exclusion and rejection. If you don’t want to provoke wrath, don’t continue to work for someone whose cruel and inhumane treatment of others rivals the internment of U.S. citizens and noncitizens of Japanese descent during World War II.

Good points. And here’s a good question: Would it be a constitutionally protected act of religious expression for a Christian baker to refuse to sell Sarah Sanders a birthday cake?

It Evidently Has to Get Worse Before it Gets Better—and it Probably Will Get Worse

In the difficult-to-read New York Times article mentioned at the beginning of the post, some of the remaining, doubling-down Trump supporters mentioned the booming economy, the tax cuts, and the regulatory retreat. But there is a big trade war a-comin’. And these folks are about to get what they and their stock portfolios deserve for their devil’s bargain.

Send Him Back to Belarus!


It turns out that Steven Miller is descended from a Jewish couple who fled the pogroms in Belarus and got off the ship with assets worth eight dollars.

I recommend this thoughtful article on Miller’s upbringing and psychology, and on how ignorance of our own family history tends to be replaced with racism.

The majority of Trump supporters and immigrant-haters are not descended from Jews fleeing eastern Europe. Instead, for the most part, they are descended from people who held slaves for several hundred years.

It’s natural to want to avoid learning about your family history, if that is your family history.

Look away, Dixieland.

How the ACLU Uses Our Money: Not an Exposé, Just FYI

civil liberties

Years ago I gave some money to the ACLU, but I stopped giving money for a long time. (I have now resumed.) My concern was that the ALCU’s absolutist approach to civil rights did not reflect my own views. The problem is that, when one person’s civil rights—to free speech, to free expression of religion, and so forth—are interpreted in an aggressive and expansive fashion, they often come into serious conflict with another person’s rights.

Classic example: in the early 1990’s Congress passed the “Religious Freedom Restoration Act,” the bastard offspring of the ACLU and the National Conference of Catholic Bishops. The upshot was the Hobby Lobby case, wherein a corporation’s religious liberty overrode the right of employees to receive medical care.

We now learn, through a leaked internal ACLU policy memo, that the ACLU is now trying to grapple with the problem of conflicting rights, as it determines what cases to select. The issue is particularly acute as it concerns legal protection of hate speech.

The memo is long, but if you want to read or skim it, I reproduce it below.


ACLU Case Selection Guidelines: Conflicts Between Competing Values or Priorities


The ACLU is the premier defender of the Bill of Rights and works on multiple civil liberties and civil rights issues, using an integrated advocacy approach that includes litigation, communications, grassroots activism, and policy advocacy. Our position in one area can sometimes present a conflict with our work and goals in another area. Work to protect speech rights may raise tensions with racial justice, reproductive freedom, or a myriad of other rights, where the content of the speech we seek to protect conflicts with our policies on those matters, and/or otherwise is directed at menacing vulnerable groups or individuals. At the same time, work to advance equality may create tensions with speech and religious liberty, where equality demands require individuals or institutions to limit their speech or to act in ways that contradict their religious beliefs. Privacy safeguards may create tensions with protections for women in the domestic sphere. As a multi-issue organization, these conflicts are inevitable. We cannot eliminate them, but we can ensure that we consider them carefully and thoroughly.

The ACLU’s involvement in the protests and subsequent tragedy in Charlottesville, Virginia in August 2017 brought these issues to the fore once again and prompted these guidelines, first proposed on a nationwide call of the ACLU’s affiliate legal directors. The guidelines are designed to assist in consideration of the competing interests that may arise when such conflicts emerge. The guidelines do not seek to resolve the conflicts, because resolution will virtually always turn on factors specific to each case. Nor do they change ACLU policy, which is set by the Board. Rather, consistent with Board policy, they attempt to identify the kinds of questions that ought to be considered, the processes for their consideration, and the measures that can help mitigate the harms to competing interests.

These guidelines were developed by a joint committee of national ACLU staff and legal directors of six affiliates, with input from the full organization. 1 They are intended to bind the

1 The committee was chaired by David Cole (National Legal Director), and included Jennifer Bellamy (Legislative Counsel, National Political Advocacy Department), Nusrat Choudhury (Senior Staff Attorney, Racial Justice Project), Louise Melling (Director, Center for Liberty), Dennis Parker (Project Director, Racial Justice Project), Jeff Robinson (Director, Trone Center for Justice and Equality),Lee Rowland (Senior Staff Attorney, Speech, Privacy and Technology), Terry Tang (Director of Publications and Editorial, Communications), Cecillia Wang (Director, Center for Democracy), and Mohammad Zaidi (Director of Gift Planning and Special Campaigns, Development) from the National office, and affiliate legal directors Nancy Abudu (FL), Emily Chiang (WA), Jamie Crofts (W-Va), David Loy (San Diego), Leslie Mehta (VA), and Andre Segura (TX). (Leslie Mehta left the ACLU before the committee’s work was completed, but made valuable contributions to the process before leaving.) We solicited comments and suggestions from throughout the ACLU, through several messages to the staff of the national and all affiliate offices, and are indebted to the input of many staff members at the ACLU in the process of developing these guidelines. They were also reviewed by the Equity, Diversity, and Inclusion Council and its Task Force. The members of the EDIC are: Connie Chiang, Associate Corporate Counsel; Genie Cortez, Deputy Dir. of Centennial Campaign & Donor Stewardship; Terence Dougherty, General Counsel/Chief Operating Officer; Dorothy Ehrlich, Deputy Executive Director; Adina Ellis, Associate Director for Strategic Communications (WLO); Tomijean Fernandez, Director of Affiliate Fund Development; Sondra Goldschein, Director of Strategic Initiatives,

Jo-Anna Joseph, Chief Diversity Officer; Jesselyn Mccurdy, Deputy Director of Washington Legislative Office; Susan Mizner, Disability Rights Program Director; Jeff Robinson, Deputy Legal Director; Chase Strangio, Staff Attorney,

national legal department, but as each ACLU affiliate has its own independent decisional authority, and its own case selection criteria and processes, these guidelines are not intended to be (and cannot be) mandatory for affiliates. ACLU affiliates may choose to adapt these guidelines as they deem fit.


 The ACLU has faced conflicts between its values and priorities on many issues. Many arise in the speech realm in particular, because the ACLU is committed to defending speech rights without regard to whether the views expressed are consistent with or opposed to the ACLU’s core values, priorities and goals. The potential conflict between advocacy for free speech and for equal justice in the fight against white supremacy is especially salient, but by no means unique in presenting tensions between ACLU values. These guidelines are intended to be useful for addressing any potential conflicts that may arise, but we will use speech and race examples as illustrative.

The ACLU is committed to the fundamental rights to equality and justice embodied in the Fourteenth Amendment and civil rights laws. See Policies #301-332. We are determined to fight racism in all its forms, whether explicit or implicit, and the deep-rooted institutional biases that continue to reify inequality. We are also firmly committed to fighting bigotry and oppression against other marginalized groups, including women, immigrants, religious groups, LGBT individuals, Native Americans, and people with disabilities. Accordingly, we work to extend the protections embodied in the Bill of Rights to people who have traditionally been denied those rights. And the ACLU understands that speech that denigrates such groups can inflict serious harms and is intended to and often will impede progress toward equality.

At the same time, the ACLU is also committed to freedom of speech and peaceful protest embodied in the First Amendment. See, e.g., Policies #1, #3, #6, #41, #41a, #42, #43, #44, #46,

#71, #72a, #103, #119. As human rights, these rights extend to all , even to the most repugnant speakers—including white supremacists—and pursuant to ACLU policy, we will continue our longstanding practice of representing such groups in appropriate circumstances to prevent unlawful government censorship of speech. We have seen the power to suppress speech deployed against those fighting for the rights of the weak and the marginalized, including racial justice advocates and pipeline protesters at Standing Rock. As the Board put it, “although the democratic standards in which the ACLU believes and for which it fights run directly counter to the philosophy of the Klan and other ultra-right groups, the vitality of the democratic institutions the ACLU defends lies in their equal application to all.” Policy #46.

At the national and affiliate level, the ACLU has long defended both free speech and racial justice, has invested significant time and resources to further work in both areas, and will continue to do so. See, e.g. Policy #312b (“Each affiliate should give the empowerment of all people of color within their community the highest priority.”). Our racial justice work includes challenging the root causes of racial inequality, including institutional bias, implicit and explicit bias, and intentional discrimination; removing barriers to opportunities and equitable outcomes for communities of color and poor communities; and reforming systems that either perpetuate or worsen racial inequality, including the criminal justice system and mass incarceration. Much of our free speech work includes protecting the rights of civil rights protesters, prisoners, immigrants, abortion providers, the press, students, academics, unions and their members, and LGBT persons. Because we believe speech rights extend to all, and should be protected even when a speaker expresses views fundamentally opposed to our own, we have defended speakers who oppose abortion rights and who espouse homophobic, sexist, or racist views.

The ACLU has also made many other rights priorities, including religious liberty, privacy, autonomy, reproductive freedom, the rights of people with disabilities, and criminal defendants’ rights. In deciding how to use our limited resources, no civil liberties or civil rights value should automatically be privileged over any other. There is no presumption that the First Amendment trumps all other amendments, or vice versa. We recognize that taking a position on one issue can affect our advocacy in other areas and create particular challenges for staff members engaged in that advocacy. For example, a decision by the ACLU to represent a white supremacist group may well undermine relationships with allies or coalition partners, create distrust with particular communities, necessitate the expenditure of resources to mitigate the impact of those harms, make it more difficult to recruit and retain a diverse staff and board across multiple dimensions, and in some circumstances, directly further an agenda that is antithetical to our mission and values and that may inflict harm on listeners.

We also recognize that not defending fundamental liberties can come at considerable cost. If the ACLU avoids the defense of controversial speakers, and defends only those with whom it agrees, both the freedom of speech and the ACLU itself may suffer.The organization may lose credibility with allies, supporters, and other communities, requiring the expenditure of resources to mitigate those harms. Thus, there are often costs both from defending a given speaker and not defending that speaker. Because we are committed to the principle that free speech protects everyone, the speaker’s viewpoint should not be the decisive factor in our decision to defend speech rights.

As Policy #511 recognizes, because our resources are limited, “some selectivity must be exercised in deciding which cases should be taken. The ACLU cannot take every case where there is a civil liberties question being raised.” We do not have the capacity to take every case that has legal merit. We seek to bring select impact cases to defend and promote civil liberties and civil rights. In addition, although the government may not discriminate based on viewpoint, the ACLU as a private organization has a First Amendment right to act according to its own principles, organizational needs, and priorities..

The guidelines set forth below are designed to help ensure that we take into consideration the external and internal impact of any decision to accept or decline a case that presents a conflict among our values and priorities. They are not, by themselves, intended to determine a particular

result on any particular set of competing values, but instead to ensure that the organization engages in a nuanced and intentional consideration of the competing interests when these situations arise.

General Case Selection Criteria

 In light of the foregoing principles, we evaluate cases involving conflicts among our values and priorities, including but not limited to those involving free speech, equality, privacy, and religious liberty, according to numerous factors such as:

  1. The merits of the case;
  2. The potential impact of the government policy or practice on civil liberties or civil rights;
  3. The importance of the case to the development or defense of legal doctrine protecting civil liberties or civil rights;
  4. The likelihood of prevailing, or otherwise advancing ACLU objectives;
  5. The potential impact on civil liberties and civil rights, including those of our allies and coalition partners if we decline or accept the case;
  6. The potential impact on the ACLU’s credibility and effectiveness as advocates for the issue presented, as well as other civil liberties and/or civil rights issues if we take or decline the case;
  7. The availability of other competent counsel to represent the potential client if we do not take the case;
  8. The opportunity to support the rights at stake in ways short of direct representation, such as by engaging in informal advocacy, filing amicus briefs, or making public statements on behalf of the ACLU that support the rights without representing a client;
  9. The availability of other clients to advance the same issue, if we are concerned that a particular client would undermine the case or present conflicts with other values, priorities, or relationships;
  10. The resources required to work on the case, and whether the work will displace other work that furthers ACLU priorities;
  11. The potential benefit to our other work in light of our mission and values, including the impact of the case on the ACLU’s principled commitment to defending civil liberties and civil rights even where we do not support the views of the individuals whose rights are at issue;
  12. The potential harm to important relationships and ACLU standing with judges, cooperating counsel, and other members of the community, both from taking the case and from declining the case;
  13. The benefits of taking the case, whether by ensuring protection of fundamental liberties, providing a helpful framework for addressing the conflict, and/or by earning credibility and respect for standing up for fundamental rights and liberties;
  14. The feasibility of steps that might be taken to mitigate any potential harm from taking or declining the case, including but not limited to thoughtful and respectful outreach to allies, partners, and supporters before or as soon as our decision becomes

Considerations Specific to Speech Cases

 In carrying out the ACLU’s commitment to defend freedom of speech, a number of specific considerations may arise. We emphasize that in keeping with our commitment to advancing free speech for all, these are neutral principles that apply to all speakers, irrespective of the speaker’s particular political views:

  • Whether the speaker seeks to engage in or promote violence: The First Amendment is not absolute, and in particular, does not protect intentional incitement to imminent violence, conspiracy to commit violent acts, true threats directed at specific individuals,2 physical obstruction of the exercise of constitutional rights, or intentional destruction of private or public property. Speakers have a right to advocate violence and hate so long as it does not fall in the above narrowly defined categories. When we have reason to believe that individuals purportedly seeking to exercise their First Amendment rights are in fact intending to engage in unlawful incitement, violence, true threats, physical obstruction, or destruction of property, we should decline representation. To this end, and consistent with time and resource constraints, we should exercise due diligence in assessing the credibility of potential clients, including through review of social media and news reporting, research into prior events in which the speaker was involved, and any other reasonably reliable information we can Where there is concern that the potential client will engage in violence or other illegal and unprotected activity, and an affiliate lacks resources to investigate, the national office will seek to provide support. If there is not time to do research and there is reason to believe that the speaker seeks to engage in violence or other illegal and unprotected activity, we should be reluctant to accept representation.
  • Whether the speakers seek to carry weapons: The presence of weapons can be intimidating and inimical to the free exchange of They can chill speech and justify state suppression of protest. Accordingly, the ACLU generally will not represent protesters who seek to march while armed. It is important that this content-neutral rule be applied without regard to a speaker’s political views. It should also apply whether or not state law permits or prohibits the carrying of weapons in a protest. To this end, and consistent with time and resource constraints (including assistance from the national office to affiliates and vice versa), we should exercise due diligence in assessing whether the potential client seeks to march while armed. If there is reason to believe that the clients do so intend, and we are unable to satisfy ourselves that they will not do so, we should be reluctant to accept representation.
  • The impact of the proposed speech and the impact of its suppression: Our defense of speech may have a greater or lesser harmful impact on the equality and justice work to which we are also committed, depending on factors such as the (present and historical) context of

2 “True threats,” which are not protected by the First Amendment, are “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black, 538 U.S. 343, 359 (2003). For the ACLU, subjective intent to threaten is an

essential element of any true threat. By contrast, the First Amendment does protect broadly threatening language not targeted at a particular individual or group of individuals, hyperbolic threats, and speech that it is deeply offensive to particular individuals. NAACP v. Claiborne Hardware¸459 U.S. 886, 926-29 (1982) (NAACP boycott leader’s public statement that those who did not participate in boycott would have their necks broken was protected by the First Amendment) Snyder v. Phelps, 562 U.S. 443 (2011) (Westboro Baptist Church’s homophobic signs directed at funeral of gay servicemember protected by First Amendment); Watts v. United States, 394 U.S. 705 (1969) (threat to kill President was hyperbole, not a true threat, and therefore protected).

the proposed speech; the potential effect on marginalized communities; the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values; and the structural and power inequalities in the community in which the speech will occur. At the same time, not defending such speech from official suppression may also have harmful impacts, depending on the breadth or viewpoint-based character of the suppression, the precedent that allowing suppression might create for the rights of other speakers, and the impact on the credibility of the ACLU as a staunch and principled defender of free speech. Many of these impacts will be difficult if not impossible to measure, and none of them should be dispositive. But as an organization equally committed to free speech and equality, we should make every effort to consider the consequences of our actions, for constitutional law, for the community in which the speech will occur, and for the speaker and others whose speech might be suppressed in the future.

  • The extent to which we are able to make clear that even as we defend a speaker’s right to say what they want, we reserve our right to condemn the views themselves: While the ACLU vigorously defends the right to free speech of those who espouse views antithetical to our own, we also reserve our right to condemn those views. Our defense of free speech rests squarely on the proposition that speech deserves defending even if we, or others in the community, find it Accordingly, as a general matter we should be able to simultaneously defend a speaker’s right to speak and condemn their views, and we should seek to preserve that right through ethically appropriate representation agreements. See, e.g., Policy #46 (“[W]hen an ultra-right group[] espouses positions adversely affecting civil liberties . . . the [ACLU] should vigorously present its position, while defending the group’s right to speak.”). Attorneys must have the discretion to make judgments about what speech might undermine their case. But we generally should not agree to represent people who will not agree to sign an ethically appropriate advance waiver of potential conflicts arising from our condemnation of their views.
  • The extent to which we are able to mitigate any harm to our mission, values, priorities, and/or relationships: Where the ACLU defends the right to speak of those with whom it disagrees, it should generally engage in counter-measures both to reinforce the values the speaker attacks and to make clear that we do not endorse the substance of the views. Some options might include:
  1. Denouncing the views in press statements, op-eds, social media, and other available fora.
  2. Participating in counter-protests. When we assist people in securing the right to march or demonstrate for views we condemn, we can and generally should support and participate in counter-protests, with consideration given to participation by senior staff or board members to highlight the ACLU’s commitment and ensure that such participation does not disproportionately burden other
  3. Supporting other counter-speech by supporting, organizing or helping to organize events, facilitating access to media, or taking other actions that will amplify and strengthen the voices of those espousing our
  4. Expanding our work on behalf of the values the speaker
  5. Earmarking any fees recovered from the case to projects within the ACLU that further the values that we support and the speaker attacked, or donating them to another organization that works to advance those values, preferably in the geographical area where the speech occurred.

Process for Consultation, Communications, and Public Education

 The process by which decisions about case selection are made are as important as the substantive questions that should guide those decisions. We recognize that time and resource constraints will affect the process that the national office or the affiliates will be able to undertake in any particular case. We acknowledge, in particular, that protest cases often arise at the last minute, in response to actions taken by the authorities shortly before the protest, thereby reducing the time available for process. Nonetheless, the following principles are set forth as best practices, time permitting:

1) Consultation. Lawyers considering whether to take on a case that presents a potential conflict with other values advanced by the ACLU should consult with staff whose work focuses on advancing and defending those values. Thus, if an equal protection case against a religious entity might create tension with our religious liberty work, at minimum, lawyers and advocates who work on both equality and religious liberty should be consulted. In speech cases raising racial justice issues, at a minimum, staff in both the Racial Justice Project and the Speech, Privacy, and Technology Project should be consulted. Communications staff should be consulted early to ensure that we are ready to explain our actions to the public. Affiliates are encouraged to do this outreach within their own affiliate, and to reach out to the National Legal Director, who will be responsible for ensuring that lawyers from the relevant projects are notified and made available for consultation. Should the affiliate seek assistance in vetting potential clients’ intention to engage in violence or to march armed, the Legal Director will seek to identify staff to assist. Where appropriate, the Legal Director and/or Center Directors should facilitate a meeting among representatives of the various interests at stake to ensure a full airing of competing concerns. Those meetings need not include everyone who has an interest in the issue, but should seek to ensure that all of the principal interests are represented. The representatives in that meeting are responsible for acting both as representatives of their constituency and of the organization as a whole. Where feasible and appropriate, representatives from Advocacy, Communications, and Development should be included in the discussion. Where appropriate, consultation with affiliate boards may be advisable.

  1. Communications Preparation. Where the ACLU decides to take, or not take, a controversial case, every effort should be made to prepare for the questions that will inevitably arise, both internally and Where possible, and consistent with confidentiality dictates, staff should be notified of decisions to take or not take controversial cases before the decisions are public, so that they understand the decision-making process and rationale. Especially when we are taking a controversial case, we should be prepared to explain our reasoning and how we have reconciled the competing values at stake. Communications should be involved as early as possible to prepare for public inquiries. And internal communications should be as prompt as possible, so that those within the organization — including affiliates — are not surprised, and understand the rationale for the ACLU’s action. The internal communications should wherever possible make clear who was engaged in the discussions about the case and urge respect for staff carrying out the decision. Staff involved in advocacy and organizing in affected communities should be notified and consulted as early as possible, so that they have the tools necessary to explain our actions to allies and other interested parties in the affected communities. Development staff should also be involved, to enable them to respond to questions from supporters.
  1. Public Education. Controversial cases tend to garner public attention, and provide an important opportunity to educate the public about the ACLU and its We should work to recruit allies and prepare educational materials, consistent with confidentiality obligations, that will help explain and defend the ACLU’s decision to take — or not to take — a controversial case presenting tensions between our values.


 The guidelines and practices outlined here are not a panacea. They do not dictate outcomes in particular cases. In our view, that would be both unwise and inconsistent with ACLU policy. We are deeply committed to a wide range of rights and to the extension of those rights to all, and at times those rights will come into conflict. When conflicts do arise, the best we can do is work toward a response that is true to our principles, recognizes the costs associated with acting and not acting, includes a process that ensures attention to all of the competing values of the organization, and seeks to mitigate the costs of acting or not acting. The national office, working with the EDIC, will work to put protocols and procedures in place at National to ensure that the principles and guidelines set forth above can be realized in practice. Our commitment to a wide range of civil rights and civil liberties is a unique strength of our organization, but it means that these tensions will never disappear. Our hope is that these guidelines will assist in navigating difficult issues while maintaining fidelity to our deepest commitments.