Court Cases

The Supreme Court has long recognized that public school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The District of Columbia recognized the same when it promulgated the D.C. Student Bill of Rights, which provides that “[e]ach student shall have the right to exercise his or her constitutional rights of free speech, assembly, and expression without prior restraint, so long as the exercise of these rights does not substantially interfere with the rights of others.” Yet Jackson-Reed High School refuses to allow the exercise of these rights by its Arab Student Union. The Arab Student Union is a recognized student club at Jackson-Reed High School, a public high school in the District of Columbia that is one of the most diverse high schools in the country. For the past four months, the club and its members have been trying to engage in expressive activities at the school—showing a documentary film, putting up posters, distributing literature, presenting a cultural program—but have been stopped at every turn by the school administration. Specifically, the school has denied the club permission to hold voluntary lunchtime meetings to screen a film critical of the Israeli government, and the school has refused even to consider alternative films proposed by the club. The school has censored handouts the club sought to distribute and prohibited them from distributing certain materials entirely. And the school has prevented them from holding a cultural event and then heavily curtailed what they could say at such an event. The Arab Student Union’s activities would not be disruptive; they are the same kinds of activities in which other student clubs engage. Their speech has been suppressed because the school does not want their viewpoint—which concerns the ongoing war in Gaza and its effects on the Palestinian people—to be heard. Representing the club, we sued D.C. and the principal of the school for violating the Arab Student Union’s (and its members’) First Amendment rights and their rights under the federal Equal Access Act and the D.C. Student Bill of Rights. We seek a court order that the students be allowed to show their film before the end of the school year and more generally to be permitted to express their views with their fellow students like any other student club at the school. A hearing on our motion for a preliminary injunction was scheduled for May 10, 2024. But on May 7, with the court’s strong encouragement, we began conversations with the defendants to see if we could reach an agreement about what the Arab Student Union could do during the remaining weeks of the spring semester. We eventually reached an agreement that allows the club to show one of the movies it had requested and to distribute its printed material, including one of the pages that had been censored. Principal Brown also agreed to send an email to all faculty and administrators reiterating that the standards for expressive activities apply equally to all student groups. The lawsuit will continue, so that we can clearly establish the right of the ASU and all student groups to exercise their First Amendment rights in D.C. Public Schools.

A Strategic Lawsuit Against Public Participation (“SLAPP”) is a term for a legal action that is of little merit but is filed anyway for the purpose of stopping someone from engaging in (usually constitutionally protected) speech by burdening them with a costs of a lawsuit. In December of 2010, the D.C. Council passed, with our support, an Anti-SLAPP Act that provides a special procedure for people engaged in advocacy on public interest issues to have a court dismiss SLAPP suits quickly. One of the provisions of the Anti-SLAPP Act limits the discovery (that is, court-ordered exchange of information among the parties in a lawsuit) that can occur when the Anti-SLAPP Act’s protections are invoked. This is because discovery can be costly and time-consuming, so that even speakers who should obtain dismissal of a SLAPP might be chilled from speaking in the first place if they knew they could be forced to undergo discovery before dismissal. In this case, the D.C. Court of Appeals ruled that the discovery limitations of the Anti-SLAPP Act were invalid because they modified D.C. court procedures in a manner inconsistent with the D.C. Home Rule Act of 1973, by which Congress granted the District limited powers of self-government. Together with many other public interest groups, we filed an amicus brief in support of reconsidering this decision, in the hope that the court will restore the discovery protections for speakers hit with SLAPPs. For more information on Washington D.C.’s Anti-SLAPP Act, click on the following link: http://www.anti-slapp.org/your-states-free-speech-protection/ In January 2024, the court granted the petition for rehearing. In April 2024, we joined with other public interest groups once again to file an amicus brief on the merits discussing the importance of the Anti-SLAPP Act and its protections for public advocacy.

After various attempts by the Trump administration to prevent refugees from exercising their rights to seek asylum in the United States, the Biden administration is trying to do the same thing. In May 2023 the Department of Homeland Security issued a new immigration regulation called “Circumvention of Lawful Pathways,” which dramatically altered the process that Congress has mandated for people who enter the United States without visas and who express a fear of harm if they are removed. The new policy effectively eliminates access to asylum for most non-Mexicans who enter the United States at the southern border without permission. As part of the United States’ longstanding commitment to protect people fleeing persecution, Congress has guaranteed that any noncitizen who is physically present or arrives in the United States may apply for asylum. Even when it created the “expedited removal” process that permits the rapid removal of certain noncitizens who enter without permission, Congress sought to ensure that this process would not wrongfully return people to potential persecution. In service of that goal, Congress established a screening process called the “credible fear interview,” at which people who express fear of removal must show only a “significant possibility” that they could later establish eligibility for asylum after a full hearing in immigration court. The new regulation upends this system by requiring non-Mexican adults and families who do not enter the U.S. through approved channels at the southern border to show, at their credible fear interviews, that they are not in fact barred from asylum, thus eliminating the “significant possibility” standard at that Congress has mandated at those interviews. The new regulation likewise changes the screening standard for claims to other forms of protection—withholding of removal and protection under the Convention Against Torture—by applying a higher “reasonable possibility” standard to these claims in place of the “significant possibility” standard that has previously been used for these claims. The new regulation also reduces the time between a person’s apprehension and his or her credible fear interview to just 24 hours, leaving almost no opportunity for noncitizens to consult with anyone or to meaningfully prepare for these often life-or-death interviews. We filed this lawsuit in June 2023, together with the National ACLU’s Immigrants’ Rights Project, challenging the new regulation’s application to these credible fear interviews (other parts of the new regulation are being challenged in an ACLU lawsuit filed in California). The complaint asserts that the new regulation violates the Immigration and Nationality Act and is arbitrary and capricious and violates the procedural requirements of the Administrative Procedure Act.

Sometimes, in a Freedom of Information Act case, the mere disclosure that the government has, or doesn’t have, documents responsive to a request would disclose facts that the government is entitled to keep secret. For example, the courts ruled that the CIA could refuse to confirm or deny that it had any records relating to a ship called the Hughes Glomar Explorer (which turned out to be a ship the CIA was using to try to salvage a sunken Soviet submarine) because the mere disclosure that it had such records would reveal that the ship had a connection to the CIA. Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976). From that case, a response to a FOIA request of “we cannot confirm or deny that we have any responsive records” has come to be called a “Glomar response.” Because a Glomar response completely defeats a FOIA request, without requiring the government to explain why the content of relevant documents are covered by one of the FOIA’s exemptions, it provides a tempting opportunity for abuse by agencies that want to keep secrets. And the CIA has been using it more and more. We and the National ACLU agreed to litigate this appeal of the CIA’s invocation of Glomar to ask the D.C. Circuit to help curb the agency’s overuse of this magic word. Plaintiff James G. Connell III, a lawyer representing a detainee at Guantanamo Camp VII (a site for “high-value detainees”), made a FOIA request for records regarding the CIA’s operational control of Camp VII. The CIA produced three responsive records, but then said “Glomar” as to anything else. The district court upheld the CIA’s response and dismissed the case. Our appeal argues that the CIA has not shown that it is logical or plausible to believe that its Glomar response is necessary to protect agency secrets. Additionally, we argue, prior official statements about Camp VII, including in a congressional report that the CIA vetted, have disclosed that the CIA did have some operational control of Camp VII, thereby waiving its ability to assert a Glomar response to Mr. Connell’s FOIA request. We ask the court of appeals to order the CIA to disclose that it does have relevant documents, so that the FOIA litigation can move to the next step, where the CIA can argue why specific documents or parts of documents are exempt from disclosure because they contain classified information or other legitimate secrets. On August 6, 2024, the Court of Appeals ruled against us, concluding that there had been no “official acknowledgement” that the CIA had operational Control of Camp VII, and that it was “plausible that revealing the existence or nonexistence of records of a classified or otherwise unacknowledged connection between the CIA and the subject of Connell’s FOIA request could reveal intelligence sources and methods information.” We are now considering whether to seek Supreme Court review. In November 2024, we asked the Supreme Court to hear the case, to correct the erroneous view by the court of appeals that, when evaluating a Glomar response, it must ignore all evidence that does not come from the agency to which the FOIA request was directed.

In this case, we argue that WMATA’s advertising guidelines violate the First Amendment, which prohibits government agencies from discriminating against private speech based on its viewpoint or from applying rules that so vague they can’t be applied consistently.

In 2015, police officers shot tear gas at two legal observers with bright green "Legal Observer" hats. The court ruled that words printed on clothing are not entitled to First Amendment protections. Together with the National ACLU and the ACLU of Missouri, we petitioned SCOTUS to review the case.

The lawsuit, filed as a class action, primarily seeks a court order to prohibit DOC officials from imposing requirements on Jewish people in their custody to provide external verification of their religion as a condition for approving their kosher meal requests.