The Constitution and social justice aren’t good friends. The talk may make it seem as if they are, but talk is cheap. Former Democratic presidential candidate and Vermont governor for life, Howard “The Cowboy” Dean nailed that on the twitters.
Maybe somewhere, but not in this country. Defending the Constitution, even though it means forsaking the passionate feelz of social justice, used to be the mission of the American Civil Liberties Union, a shoestring organization that took up unpopular causes because, well, that’s how the Constitution gets defended. Popular causes don’t need a defense.
But then came the Muslim ban, and no longer were they constrained to drink tap water. Flush with millions of dollars of contributions, they could now afford the fizzy stuff from France. So what if the nice folks sending loot didn’t grasp the organization’s mission. They weren’t going to dissuade them, and they surely weren’t giving the money back.
But that was just the start of the paradigm shift for the forlorn lawyers charged with doing the dirty work of upholding unpopular causes. They were in vogue. And they are in Vogue.
No swimsuits, thankfully, and no guys either. But what were the chances this pic would appear in the highest of fashion rags? And did they dress for the occasion?
To be an ACLU lawyer, suddenly, is to be something of a rock star. Lee Gelernt, the attorney who filed the first challenge against Trump’s so-called “Muslim ban,” appeared on Samantha Bee’s Full Frontal. Sarah Paulson called the organization out in her SAG Awards acceptance speech. Tom Hanks is sending an espresso machine to the New York office (presumably the same model he gave to the White House press pool). Sia pledged to match donations from fans, resulting in a storm of tweeted receipts.
Rock stars? They weren’t rock stars in Skokie, but times change. An organization that was once dedicated to being the last bastion of civil rights for the despised has now discovered People Power.
People Power is a bold new direction for a very old institution, and one that comes in direct response to the massive outpouring of support the ACLU has received since Donald Trump’s November upset. That support has manifested not only in the form of dollars—though donations and membership are way up—but in manpower, too. “The only thing that’s reassuring now,” I’m told by Donna Lieberman, executive director of the New York Civil Liberties Union, the largest of the affiliates, “is that the Trump regime and its take-no-prisoners approach to the institutions that form the foundations of our democracy has awakened the sleeping giant of the American people.”
Powerful words, but devoid of actual meaning. Is that mission creep or pandering?
If the ACLU made its reputation playing legal defense against constitutional infringements—“We’ve got your back,” is a common refrain—People Power seeks to lead the charge. And the people, an army of freshly minted activists, seem eager for marching orders.
What are the chances the ACLU’s new sycophants will be ordered to defend the rights of Skokie Nazis to march? Or Charles Murray to speak? Will that bring the celebrities out to extol their virtues? Will that get them hair and makeup before their beauty shot? An Oscar perhaps?
But if the evening had a climax, it happened earlier, during a presentation by First Amendment attorney Lee Rowland. It was, on the one hand, a straightforward brief on the legal contours of the right to dissent; on the other, it was a reminder—replete with slideshow images of the suffragettes, the Women’s March, Black Lives Matter, and Martin Luther King Jr.’s “I Have a Dream” speech—that the rights sanctified in the First Amendment, the ones that Donald Trump has repeatedly threatened and that some state legislatures have recently sought to squash, are what undergirds each and every popular crusade for a more equal and just America. And while there are many organizations mobilizing people to protest the Trump agenda, the ACLU is likely the group most concerned with protecting the basic right to do so.
See what they did there, “every popular crusade for a more equal and just America”? Sweet words though they may be, they’re the dog whistle of social justice, not civil rights.
“I’m what you’d call a true believer in the First Amendment,” Rowland announced. “It’s foundational.”
It is, indeed, foundational, but calling oneself a true believer might fall a bit short of reality. Lee and the ACLU have been taken to task for a conflicted view of the First Amendment.* It’s not that they’re not for the First Amendment, as much as they’re for other things more. They have feelings too, you know.
Even before Trump was elected, the ACLU was trying to rebrand, as this whole constitutional mission wasn’t playing well with the children.
In the summer of 2016, the ACLU put out a call to creative agencies asking for help with an image refresh. They wanted, remembers Michele Moore, to lighten up their tone. In September, they signed on with Co:Collective, which specializes in helping organizations define their “Quest,” or “higher purpose that powers everything they do.” With her agency’s help, Co:Collective chief creative officer Tiffany Rolfe told me, the ACLU settled on: “We the people dare to create a more perfect union.”
Then came Trump and, boom, the ACLU was suddenly cool. They were rock stars. Filthy rich rock stars.
Then Trump was elected, and suddenly the whole makeover seemed somewhat beside the point. Donations flooded in to the tune of $85 million. There was money enough to hire 100 new people and to ramp up advocacy efforts. The email list doubled. The social media following more than tripled. Membership nearly quadrupled, from 425,000 to 1.6 million. And crucially, now more than 20 percent of those donors and activists—roughly 300,000 people—are under 35.
There’s just one problem. This vast support has nothing to do with their mission or the Constitution. Rather, the ACLU now threads the needle by trying to appease their newfound cash machine while not doing everything possible to destroy constitutional rights in the process. They tout their gains, but only the ones the that align well with the feelz of the newly-minted activists, and only in words that are sufficiently vague and meaningless to keep the cash and cappuccino machines coming.
When you get a spread in Vogue, it must feel good, rewarding, to be loved and appreciated. Too bad that it’s for all the wrong reasons. But if they don’t pander to social justice and give away the Constitution, how will they get Fox to air “Real Housewives of the ACLU”?
*Lee Rowland, to her credit, has shown a willingness to do the unthinkable, arguing that Trump, despite his deplorability, still enjoys free speech.
Some people have cheered the judge’s ruling in this case — perhaps gratified that Trump’s ugly campaign is finally getting some comeuppance. It’s certainly understandable why reasonable people could see those Trump rallies as racist, sexist powder kegs. I know that many Americans fear we’re slipping into fascism, and see the violent euphoria that has sometimes emerged at Trump rallies as a harbinger of a moment from which our democracy won’t return. I worry, too.
But if we really want to protect against that moment, we cannot do it by weakening our commitment to constitutional values.
Now about that violent euphoria of the antifas?