You probably remember the good ole' frying pan, fried egg, fried brain from back in the day. If taking a good beating from a frying pan is what happens to your brain on drugs, you should check out what's happened to your Bill of Rights on drugs.
Almost 40 years ago, perhaps sparking the Bush team's bright idea to declare a "war on terror," President Nixon declared a "war on drugs." By the time George Bush Sr. entered the White House in 1989, found that 62 percent of Americans would be willing to give up a few of their freedoms in order to fight the war on drugs. And Uncle Sam has been more than willing to take them up on it. Most of the court cases within the past 40 years that have methodically abridged individual rights like freedom of religion, freedom of speech, freedom from unreasonable searches and seizures and property rights, have all concerned drugs. Supreme Court Justice Thurgood Marshall even for the growing practice of sacrificing constitutional rights in the name of the fighting drugs: the "drug exception."
It seems appropriate on this Constitution Day to take a few moments to mourn all that we've lost from the Bill of Rights and the Constitution due to these "drug exceptions:"
Freedom from Unreasonable Search and Seizure: Perhaps the big loser of all has been the , which limits the power of the government to enter and search one's private property. Think about it: Unlike other crimes, drug offenses do not often have complaining witnesses (i.e.: people who come forward to request police assistance). The parties who use, sell or manufacture drugs are consenting participants who likely wish to hide their drug activity. In order to unearth drug crimes, the police must engage in wiretapping, surveillance, undercover operations, the use of confidential informants, entrapment by offering to buy or sell drugs, and countless other practices that strike at the heart of what the Fourth Amendment is all about. In the name of the drug war, courts have allowed suspicionless drug testing of wide swaths of students and private employees, and the State of Michigan almost got away with conducting random drug testing of welfare recipients. The incidence of surprise, on people's homes – and – in the name of routine drug policing has skyrocketed in recent years. Similarly, courts have repeatedly given the stamp of approval to the ever-increasing use of police drug dogs to search homes, cars, bags and people.
Freedom of Speech: When it comes to speaking out against the government's drug policy, the right to free speech has also fallen prey to the drug war. In 2007, the U.S. Supreme Court carved out a "drug exception" to one of the most central tenets of free speech jurisprudence: the government cannot discriminate on the basis of the viewpoints being expressed in speech. In Morse v. Frederick the Court ruled that a student's speech could be censored at a school-related event (even outside the school), not because it was disruptive or because it provoked imminent lawlessness, but because it contained the word "bong." The Court drew on other drug-related precedent to find that when it comes to students in the school context (and even students who are near a school, as in this case), the government can make exceptions to free speech rights when it comes to speech about drugs.
Freedom of Religion: In , the U.S. Supreme Court shunned the longstanding rules protecting the free exercise of religion and ruled that all religious practices give way to the general laws of the land – in this case drug laws. In response, Congress passed the (RFRA) which restored the rights of people to participate in religious activities even when their practices appear to be in tension with other laws. The U.S. Supreme Court subsequently struck down RFRA protections as applied to state laws so that when state laws and religious practices conflict, the state laws essentially win out. The silver lining, however, is that courts have ruled that RFRA protections remain intact in matters of federal law, such as in the case of Gonzales v. UDV (involving a church's use of ayuhausca tea as part of its ritual, in conflict with federal drug laws) and Guam v. Guerrero (involving Rastafarians' religious use of marijuana, in conflict with federal drug laws). Currently, courts are considering the legality of the .
Right to Vote: Because the laws of many states continue to deny voting rights to those with current or prior felony convictions – many of them for drug offenses – an entire class of citizens has been shut out of the democratic process. To date, an estimated 5 million Americans have lost their fundamental right to vote, and in 11 states you can be barred from voting for life.
These are just a few of the "drug exceptions" to the Constitution. To learn more about how our basic rights as Americans have been compromised in the context of the drug war, check out the excellent article, by the director of the ACLU Drug Law Reform Project, Graham Boyd, and writer Jack Hitt.
If you think the original drafters of the Constitution would be rolling over in their graves about now, you're probably right. While it's unlikely, in a time before the existence of heat-sensing surveillance, wiretapping and drug testing technologies, that they could have imagined the kind of power our government would someday have over our private lives, the drafters did include important, explicit rights in the Constitution and the Bill of Rights meant to shield individuals from just the kind of insidious government overreach we have sadly seen come to pass in recent years.
Constitution Day reminds us that all the good words written on a piece of paper (which, as some historians have suggested, may have even been made from industrial hemp, which is made of marijuana, now an illegal, Schedule I drug) don't mean a thing unless today's judges and policymakers interpret and enforce the rights that they accord to us all. This makes our role as the people to whom policymakers and elected officials are accountable all the more critical.
Let's hope that public views on civil liberties and the drug war have changed since 1989 when 62 percent of us said that we'd accept a "drug exception" to the Constitution. There's good reason to think the tide is shifting. Polls consistently show that a strong majority of Americans think the drug war is a failure and that resources should be shifted away from arrest, prosecution and prison and toward treatment and education. But the fact remains that the United States remains the world's largest jailer of drug offenders, disenfranchises an entire class of people with drug convictions and even denies educational funding to would-be students with drug convictions.
If history is any lesson, our constitutional rights will continue to slip away in the name of the drug war unless we fight to keep them. Here's to keeping up the fight. Happy Constitution Day!
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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 -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.