ACLU’s David Cole: ‘Protecting the First Amendment Is Fighting for Justice’

By Tracy Schorn

January 31, 2018

David Cole, national legal director, ACLU

In February’s Washington Lawyer, ACLU national legal director David Cole discusses the organization’s work since President Trump took office. Below is our expanded interview with Cole on First Amendment rights and the importance of protecting all speech regardless of its popularity.

The last time the D.C. Bar interviewed you, it was just before the election. You sure picked an exciting time to be at the ACLU. How has the organization changed since the outcome of the election? Have priorities shifted?

I was recruited with the notion of “Just think what it will be like to lead the ACLU’s legal team under a liberal Supreme Court.” Everyone assumed at the time that Hillary Clinton would be elected president, she would appoint Justice Scalia’s successor, and for the first time in 40 years there would be a liberal majority Supreme Court.

Obviously, the job changed dramatically on November 8, 2016. In many ways, it’s a more important job than ever. When you have a president who disregards basic constitutional norms, his party in control of both houses of Congress and most state legislatures, and having appointed a majority of the Supreme Court, the checks and balances have to come from somewhere else.

One of those [checks] is civil society—nonprofit organizations like the ACLU, Planned Parenthood, the NAACP Legal Defense Fund, and the like. Also universities, the press, and even religious institutions—they’re all protected by the First Amendment, in part because of the critical structural part they play in a robust democracy.

Civil society is how citizens come together outside the government to rein in the government. The press reports on the government. The academy criticizes the government. Religious groups have their own normative commitments that are not determined by the government. And nonprofit groups can be watchdogs and defenders of principles.

The ACLU has been doing this for 96 years. We have sued Democratic presidents and Republican presidents. We defend the Bill of Rights, regardless of who is in office. But our job is obviously more challenging with someone like Donald Trump, who has shown utter disregard for basic constitutional principles.

At the same time, we have more support than we’ve ever had. Before Trump was elected, the ACLU had 400,000 members. Today, we have 1.75 million members. In a democracy, that’s power. People believe in our vision and want to work with us to make our vision a reality. That’s a tremendous opportunity—and responsibility.

You just argued the case Masterpiece Cakeshop v. Colorado Civil Rights Commission before the Supreme Court, involving the baker who claimed a First Amendment right not to bake a wedding cake for a gay couple. The ACLU generally defends First Amendment claims. Why were you on the other side in this case?

We are second to none in defending the First Amendment. But in this case, we don’t think the First Amendment claims are meritorious. The bakery, which chose to open its doors to the public, cannot invoke a First Amendment right to discriminate. No one has to become a public accommodation, but once you make that choice, you can’t deny service to citizens because of who they are. The First Amendment would be implicated if the government singled out particular messages and either prohibited or compelled them, but that’s not what the Colorado law at issue here does: It applies to all businesses open to the public, regardless of whether they are “expressive” or not, whether they sell books or nails. And I don’t think any of us would want to live in a world in which businesses, no matter how expressive, could put up signs saying “We don’t serve gays” or “Whites only.”

You’ve represented a lot of unpopular people—gay performance artists, Palestinian “terrorists,” flag burners. Did representing Jason Kessler and the neo-Nazis at Charlottesville give you pause?

These are challenging cases. When we represent someone whose point of view is diametrically opposed to ours, who seeks to undermine the rights we are trying to defend with vulnerable groups, that creates a tension for the ACLU.

We’re a big tent organization. We defend the rights of people to speak regardless of how offensive their views are, regardless of whether we’re in agreement with them, if they’re pro-equality or anti-equality. That’s an important part of who we are—and it’s an important part of what the First Amendment is.

But history demonstrates that protecting the First Amendment is fighting for justice. At the most fundamental level, there isn’t a tension between free speech and equality. Because the way you fight for equality in a democracy is by using your free speech, your right of association, your right of assembly. So if we sacrifice those principles in the name of equality, we may undermine our own ability to advocate on behalf of vulnerable groups and the disadvantaged.

Does it really further the goals of democracy to tolerate views that are antithetical to democracy itself?

I have faith in the American people. I think that when those views are aired, they are roundly rejected. The best response to the white supremacists in Charlottesville was what happened one week later in Boston, where you had 40,000 counter-demonstrators to something like 50 white supremacists.

What was interesting in the wake of Boston was that the alt-right cancelled a whole slew of planned demonstrations. They realized that events like Boston are bad press for them. They come out and they spark speech that rejects their views as abhorrent. That’s how the system ought to work. On the other hand, when their views are suppressed, when they are barred from speaking, they become martyrs [and] get more attention. Who ever heard of Richard Spencer before universities started not allowing him to speak? Now he’s a household name, not because of the power of his ideas but because of efforts to silence him.

I think it’s much more effective when we ignore [white supremacists], we do counter-protests, we shame them, and we don’t suppress them. They’re not impervious to bad press.

In a recent article, you cited a 2015 Pew Research Center poll that reported that 40 percent of millennials think the government should be able to suppress speech deemed offensive to minority groups, as compared to only 12 percent of those born between 1928 and 1945. What do you make of this finding?

It’s very disturbing. They are our future. If young people aren’t committed to free speech, it raises questions about how robust free speech will be going forward. So we need to speak to that. The ACLU is actively engaged in public education to remind people of the importance of tolerating and protecting speech, even when we hate what it expresses. We have a summer institute for high school seniors that educate them in the ways of defending liberty. We’ve spoken at colleges on the suppression of speech. We’re fighting that. It’s a battle for the hearts and minds of young people today.

The attempts to suppress speech are ill-advised. When you’re on a college campus, the authorities tend to be fairly progressive, so you think, “Well, if we can get authorities to suppress speech, they’ll suppress the right speech.” In the real world, the authorities are not always progressive. So it’s very dangerous to establish the precedent that officials, whether inside or outside universities, have the power to suppress speech because they find it offensive. It would ultimately work against the causes that these college students want to advance.

Why do you think there’s been this shift?

I think it could be a reflection of the successes we’ve had in establishing First Amendment protections. For decades, the scope of political freedom was one of the core questions in American democracy, from the targeting of anarchists in the early part of the last century to locking people up for speaking out against World War I, to anti-communist measures of the Red Scare and the McCarthy era, to the civil rights movement when many civil rights demonstrators were suppressed for their speech.

The ACLU and many others fought throughout this period to establish a robust principle of First Amendment protection. As a result, the state cannot suppress speech because it thinks it offensive or even advocating unlawful activity. In the late 1960s, the [Supreme] Court established a set of rules that are very, very speech-protective. That is now established so young people growing up today have not had to fight for these rights. Because it is an accepted right, they have not seen the dangers in a concrete way, and as a result, I think they too often take it for granted.

How are you feeling about the First Amendment under the current administration?

The First Amendment plays an important role as a check on government abuse by protecting the right of speech, the right of association, the right of assembly, the right of religious expression, and the right of the press. But it only works as a check if people exercise those rights.

I think one of the most positive signs in the wake of the Trump administration is the engagement I’ve seen from the citizenry around civil rights and civil liberties. Things like the Women’s March, the airport demonstrations [against the travel ban], our new membership at the ACLU.

If we are to defend liberty effectively in the Trump era, people have to get engaged, stay engaged, and work together in defense of the principles we hold most dear.

I’m optimistic. We might well look back on this time not just as four years of darkness, but as a long-term transformation in American politics. The result may be a much more robust and engaged citizenry who understands the value of rights and civil liberties. But only if we as citizens choose to make it so.