This piece originally appeared on .
The Washington Post recently raised eyebrows when it emblazoned the slogan “Democracy Dies in Darkness” beneath its front-page logo. It “sounds like the next Batman movie,” joked New York Times Executive Editor . But Baquet would surely agree with both the express and implied messages that the slogan is meant to convey: that the survival of a vibrant democracy depends on an informed citizenry, and that the administration of poses a unique threat to our democracy.
That threat was very much on display last week, with Trump’s startling decision to fire FBI Director in the midst of an ongoing FBI investigation into potential criminal misconduct by members of his inner circle. The comparisons to Watergate were immediate and inescapable. In an episode commonly known as the “Saturday Night Massacre,” President Richard Nixon ordered the removal of a special prosecutor who had been appointed to investigate the Watergate break-in, and in so doing hastened his own resignation from office a year later. (Unsurprisingly, reported a significant in searches last week for the term “Saturday Night Massacre.”)
The parallels are hard to ignore, but there’s a critical difference. In 1973, President Nixon’s actions were met by a skeptical Congress that was serious about following the investigation of Nixon wherever it might lead. Last week, notwithstanding the plainly absurd (and often contradictory) explanations put forward to justify Comey’s abrupt firing, the leaders of both the and the endorsed the president’s troubling actions and dismissed the notion that any broader investigation might be warranted.
The ACLU has joined others in calling for the appointment of a Special Prosecutor and the creation of a Select Committee to investigate allegations that Trump associates engaged in illegal activity during the campaign, but we need to be prepared for the possibility that with the president’s party in control of Congress, the formal mechanisms of constitutional oversight will be deliberately stymied.
What then?
In the face of a concerted effort by the president and congressional leadership to thwart a thorough investigation and to keep us in the dark, how will the American people have the information we need to hold our leaders accountable?
In moments like this one, we should be grateful that the Constitution’s framers placed freedom of the press in the First Amendment. It’s precisely when the machinery of constitutional oversight breaks down that a fiercely independent, courageous, and free press is most vital. And in order for the press to play that vital role, it has always depended on unauthorized disclosures from government employees who were willing to risk their own jobs and freedom to ensure that the public knew the truth about matters of national importance. All joking aside, we have often needed a “Batman” to step forward to bring government wrongdoing out of the darkness and into the light.
The New York Times was able to publish the secret history of the Vietnam War only because Daniel Ellsberg provided the classified evidence. The Washington Post was able to initiate the Watergate investigation because “Deep Throat” offered the clues. More recently, the public has depended on patriotic whistleblowers to learn the truth about grave abuses ranging from the CIA’s operation of “black-site” torture prisons to the NSA’s unlawful mass surveillance of U.S. citizens.
Throughout our history, the ACLU has been proud to stand behind some of these brave Americans, and we are prepared to do so again. We may very well need new heroes to rise to the moment and ensure that the Trump administration does not succeed in sweeping criminal misconduct and abuses of power under the rug. If the United States is to remain a government of the people, by the people, and for the people, the people have to be informed. And if our elected officials abdicate that responsibility, it may once again fall to an ordinary American to show extraordinary courage.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.