Some dyed in the wool civil libertarians have criticized the ACLU for supporting Donald Trump’s impeachment. These critics maintain that our commitment to the First Amendment should solely trigger a defense of the president’s “free speech.” But freedom of speech poses no bar to holding a president responsible for his unfounded, bad-faith effort to subvert the results of a free and fair election.

Our board — comprised of leading lawyers and activists from every state and the District of Columbia — is a thoughtful, deliberative body of committed civil libertarians. After meetings on both Saturday and Sunday, the ACLU board unanimously passed a resolution again calling for President Trump’s impeachment, which can be found here.

We discussed at length the free speech implications of this impeachment process. We concluded that President Trump’s remarks on Jan. 6 can be considered part of a pattern of efforts to upend an election he lost. If a president’s repeated lies, illegal political pressure, and the stoking of a mob to subvert the democratic process are not an abuse of power warranting impeachment, it is difficult to know what would be.

Holding the president accountable for his words on Jan. 6, as part of that pattern, does not run afoul of the First Amendment. The House impeachment resolution reflects this. It does not single out Trump’s speech on Jan. 6 inciting a mob, but rather identifies it as part of a pattern of “efforts to subvert and obstruct the certification results of the 2020 presidential election,” including the improper pressure placed on Georgia Secretary of State Brad Raffensperger “to ‘find’ enough votes to overturn the Georgia presidential election results and threatened Mr. Raffensperger if he failed to do so.”

The ACLU believes a president can be impeached for speech that a private citizen could not be prosecuted for.

First, proceedings to impeach and remove a president are not criminal proceedings. They specifically seek to remove the president from office. While the First Amendment would likely bar the criminal conviction of a private citizen for the president’s Jan. 6 speech, impeachment is a political remedy: to remove an executive official who has abused his office, not to convict them of a criminal offense. The Supreme Court has long held that public employees can be fired for on-the-job speech that would be fully protected from criminal prosecution. Whether the president has any First Amendment rights when speaking in his capacity as president has never been established. At a minimum, because of his role and authority, the president does not have the same freedom of speech as an ordinary citizen.

The First Amendment doesn’t protect the rights of public employees to say whatever they want when speaking in their official capacity. As a matter of law, public employees are regularly sanctioned for speech that fosters a hostile work environment. Their public position imbues their speech with more influence than the average citizen — as the saying goes, with great power comes great responsibility. It follows that President Trump doesn’t have unfettered free speech rights to subvert the results of a fair and free election. In short, a president who recklessly urged his followers to violate the law could be impeached even if an ordinary citizen could not be convicted for the same words, absent proof that his speech was intended and likely to produce imminent lawless action.

Second, impeachment proceedings do not require conviction of a crime, but a determination by the House and Senate that the president has abused his office in such a serious manner that he should be removed. “High crimes and misdemeanors” don’t have to be actual crimes or misdemeanors, and surely recklessly urging an unruly mob to intimidate members of Congress performing their constitutional duties, in order to undercut the results of a free and fair election, is sufficient.

No organization or individual has more consistently stood up for the free speech rights of individuals than the ACLU. From our defense of labor activists’ speech in the 1920s and 1930s, to Skokie, to Charlottesville, to our defense of BLM protesters, to the student free speech case the Supreme Court agreed to hear just last week, my organization steadfastly defends the First Amendment rights of individuals, no matter the popularity of their speech.

Part of that legacy is our landmark Supreme Court case, Brandenburg v. Ohio, which established First Amendment protections in the context of criminal prosecution for incitement of violence. That case ruled that even explicit advocacy of criminal activity is protected unless the individual’s speech is intended and likely to produce imminent lawless action. As proud (and protective) as we are of our Brandenburg precedent, we don’t believe that case should stand in the way of impeaching Donald Trump.

This civil libertarian can sleep well at night knowing that the First Amendment can be preserved, and Donald Trump can be impeached. In these hyper-partisan times, it is no surprise that leading critics of the ACLU might wish to deride us for allegedly sacrificing our commitment to the First Amendment in favor of punching down at an increasingly unpopular president. But as is reflected in our board’s thoughtful second call for Trump’s impeachment, our allegiance has always been, and remains, with the Constitution.

I also sleep soundly because I fundamentally believe that our society is finally grappling with complicated issues of race, rights, and freedoms that it long overlooked or took for granted. Recent debates about Twitter’s barring of Trump permanently, the racially disparate treatment of BLM protestors and white supremacist insurrectionists by law enforcement, and the impeachment of President Trump have led to a soul-searching debate that will make this country better and stronger in the long run. Indeed, Donald Trump’s most lasting legacy may be that he catalyzed a “resistance” movement that will transform into a deeper commitment to social justice and constitutional norms. It is this invigorated movement that will shape the work of the next administration.

Good night and good bye, President Trump. 

Greetings,

It has been difficult to remain connected in 2020 with our friends, family, and colleagues. We want you to know we appreciate you, and we’d like to get to know you better and learn how we can be in touch in 2021 and beyond. So, let's connect!

Before 2020 comes to a close, we hope you: 

• Update your contact information with us so we can be in touch in 2021 with news, action alerts, and more.
• Make your annual tax-deductible gift to help support all our work defending democracy. 
• Become a member or renew your membership.  
• Read our Year in Review blog to learn about what we’ve accomplished with your support.   
• Feel free to give us a call at 701-478-9924 or email northdakota@aclu.org with any questions about your support or about the work of our team in North Dakota and our friends Nationwide at the ACLU. 

We wish you and your family a happy holiday season and a happy New Year! 

Warmly,

The ACLU-ND Team 

Dane, Janna, Adam, Libby, Heather, Candi, Andrew, and Jen. 

The past year has tested our resolve and magnified the injustices that have plagued our country for centuries. But it also demonstrated our strength and resilience in the face of adversity – not to mention a lot of creativity in finding new ways to push for civil rights in an ever-changing virtual world.  

Here’s a look back at some of the highlights for the ACLU of North Dakota.

Helping North Dakota Kids Today Will Make North Dakota Stronger Tomorrow

Across the country, school districts are struggling with students who don’t have enough money to pay for cafeteria meals and accrue a debt to eat.

Lunch debt collection policies vary from district to district. At some schools, children have had their meals thrown in the trash for unpaid school lunch debt. Others have been barred from participating in extra-curricular or after-school activities. It’s happening in North Dakota, too. 

Often, private donors step in to help foot the bills. But soliciting donations to cover school lunch debt isn’t exactly a sustainable solution. That’s why the ACLU of North Dakota worked with a coalition of organizations to change school lunch debt policies. Now, thanks to a Fargo School Board policy update in early 2020, families will no longer have to worry about being sent to collections or referred to social services over lunch debt.

Helping North Dakota kids like this today will only help make our state stronger tomorrow.

Good Health Starts with Stable Housing

For North Dakotans whose income was impacted because of involuntary unemployment, extended sickness or required quarantine during the COVID-19 crisis, stable housing was – and still is – a major concern. In fact, nearly 1/3 of respondents to a North Dakota Department of Commerce COVID-19 Community Impact Survey said they have concerns about housing evictions.

The ACLU of North Dakota, along with organizations like the Fargo-Moorhead Coalition to End Homelessness and High Plains Fair Housing, urged Gov. Doug Burgum to issue a temporary moratorium on eviction actions in the state.

While Burgum wouldn’t issue an eviction moratorium, his administration offered an alternative solution: the Rent Bridge Program. This program, which provide temporary rental assistance to eligible renters who are experiencing a loss of household income due to COVID-19, has the potential to be an even better solution to keep people in their homes. We’re happy the state finally responded to our concerns and call to action. Good heath really does start with stable housing. 

Racial Justice Movement Sparks Changes in Fargo

After the murder of George Floyd by the hands of police in Minneapolis, North Dakotans responded with protests and marches across the state. The ACLU provided support to organizations like One Fargo at the Fargo-Moorhead Black Lives Matter group for these protests. We were also the first organization to call for the resignation of Todd Osmundson, the former Fargo deputy chief of police, for his actions when he infiltrated and agitated protesters. 

Real change, however, starts at the top – which is why the ACLU worked with the city of Fargo to add more diverse voices to its police chief hiring committee. Five people of color were selected to be on the hiring committee, and the committee selected a progressive, reform-minded chief – the first step toward real police reform in Fargo. A community task-force will continue the work by meeting with the Fargo police chief and mayor on a regular basis. Watch out, Fargo. Change is coming! 

Get Out the Vote Efforts Bring More People to the Polls

In an unprecedented year, it was only natural that we had an unprecedented election.

The ACLU has a long history of helping voters understand and exercise their voting rights – and this year was no different. With misinformation flowing from the highest levels, we knew how important it was for voters to be prepared and make their plan for voting – either by absentee ballot or in person on Election Day. It was never more important to help educate voters on how, where and when they can vote, and how to advocate for their constitutional right to cast a ballot when obstacles are thrown in their way. 

That’s why we launched an aggressive voting rights campaign – amplified through digital and outdoor advertising, direct mail, an expansive email program, interactive online tools, and social media outreach – and provided voting rights information, absentee ballot request forms, and instructions to people across the state. 

By doing so, we helped thousands of North Dakotans vote safely by mail – and if people were comfortable, in person on Election Day – in the November election. 

Looking Ahead to 2021

Thank you for supporting civil rights and liberties. Moving forward, we’re more committed than ever to building a more just and equitable South Dakota for everyone. Thank you for joining us in the fight. You make progress possible.