I think the same principles apply, right? It’s just that we have to make sure that the government stays out of the business of regulating people’s private speech. That is probably my biggest concern right now, that hasn’t yet materialized or matured. But it may.
Were you comfortable with the way Facebook and Twitter barred certain people from—
No. We criticized Facebook and Twitter when they de-platformed Donald Trump. I mean, they kept people like [Jair] Bolsonaro and [Viktor] Orbán on, but they de-platformed Trump. We felt that they were not calling balls and strikes as they saw them. And we criticized them in real time, and we applauded them when they re-platformed them.
So are you pleased that, say, Mark Zuckerberg has changed his policy on Facebook?
Facebook is afforded a lot of latitude because it’s a private entity—the right to set its terms of service. That’s part of the free-speech kind of framework.
And you see it as a platform or as a publisher?
I see it as a platform. And there are parts of it when they’re pushing the algorithm out, and it’s both a platform and a publisher. And that’s why I think they can have a different set of rules applying to different parts of these companies. The algorithm is more like a publisher, and so you have to scrutinize it differently. But the terms of service—in terms of the individual user, and the ability to post one’s content, even when it’s hateful or not aligned with the A.C.L.U.’s values—has also got to be secure.
Let me go back to your trust or confidence in the courts. A federal judge called out the Trump Administration for blatantly ignoring an order to resume federal funding for the Office of Management and Budget that had been frozen. What can you do if Trump simply ignores the judges, and doesn’t want to listen to anybody, and just directs his people to keep doing what they’re doing? What possible authority or power does anyone have in this, much less the A.C.L.U.?
I think you keep running the gantlet. Basically, the Trump Administration is arguing not that we don’t have to heed you. They argue in their response to the judge: no, we are heeding you, we think your order was more limited. The judge then clarified, I think on Monday, saying that no, he had meant for them to reinstate all the grants writ large. And so this will continue to move up the food chain.
The crisis moment comes when the Supreme Court rules and says, The Trump Administration has flagrantly disregarded a clear judicial order, and thou must comply. And if they don’t comply, then we’re in a different moment.
I realize I’m repeating myself, but: play that moment out.
We have to exhaust all the remedies. We have to get fines. We have to ask for incarceration of individuals who flagrantly disregard judicial orders.
And that includes?
And that includes the federal-agency heads.
And it also includes the President of the United States, does it not?
He himself or the Vice-President? Sure, sure. No one’s above the law, right? Now, if we do not succeed, let’s say no one comes—the cavalry doesn’t ride—
Then what?
Then we’ve got to take to the streets in a different way. We’ve got to shut down this country.
What does that mean?
We’re just beginning to think it through. We’re talking with colleagues and other organizations. There’s got to be a moment when people of good will will just say, This is way too far.
What’s the historical precedent for that anywhere?
Well, there have been efforts. Marbury v. Madison—the case in which the government tried to snub its nose at the role of the Supreme Court. The Supreme Court was not yet as powerful or as established an institution as today. You also had F.D.R., who tried to pack the Court. It’s not new that Presidents bristle at judicial oversight. Clinton passed some of the most egregious court-stripping measures, like the law on prison reform, where he basically tried to get the courts out of the business of looking at prisoners’-rights cases or immigrants’-rights cases.
But I can just hear the listener’s mind saying, O.K., that was Bill Clinton, and that was bad enough. This is a person, an executive, a politician of a very, very different order.
Totally agree. And we’ve got to take it one step at a time.
When you say “shut the country down” and take to the streets, who’s doing that? Because I have to tell you, this time around, so far—and we’re not even a month into this—the number of people that you sense have decided things are so complicated, difficult, or awful, and have decided to shut politics out of their mind—“I’m not watching the news,” you hear this—is alarming.
It is alarming, but it’s also true that it’s evolving. I mean, for instance, we had a town hall recently. Fifty thousand people turned up. Largest number ever, even compared to Trump One.
It’s a self-selecting group, though.
Yeah, but that still shows you that there’s more energy there. There’s more of a heartbeat. I wouldn’t give up on the patient just yet. There’s more of a pulse.
Let’s go back to the phrase “shut the country down” that you used. What does that mean?
I think you have to call on, for instance, corporate leaders. We’ll have to yank them into the pool with us if they believe that part of what is going to protect good corporate interests or the workings of the economy is the rule of law. There’s got to be a moment when people are saying, Can you countenance this?
