The ACLU will never be quite the same: Spirited free speech advocate David Cole steps down — First Amendment News 432

It is no mere academic matter if Georgetown Law succumbs to pressure to fire Ilya Shapiro over a pair of offensive tweets. The controversy surrounding conservative lawyer Ilya Shapiro’s future at Georgetown University Law Center threatens to turn academic freedom on its head. — David Cole (2022)

In the Trump era, keeping government out of the speech regulation business is likely to be more essential than ever. — David Cole (2017)

Despite its proud heritage and ongoing support of the First Amendment, there have been times when the modern ACLU was either equivocal or silent on certain free speech issues. Even so, free speech advocates had a strong and smart ally in David Cole, the ACLU’s national legal director from 2017 until this week, when Cole announced he is stepping down. As FIRE’s Executive Vice President Nico Perrino recently told The New York Times, Cole “falls within the lineage of the free speech advocates” at the ACLU that fought boldly for free speech freedoms.

Indeed. Although he stands tall and on his own feet, lingering within Cole is the fighting free speech DNA of the likes of Walter Nelles, Walter Pollak, Morris Ernst, Nadine Strossen, and Ira Glasser. By that measure, he’s old school in a modern era.

Before he joined with the late William Kunstler in briefing the landmark cases of Texas v. Johnson (1989) and U.S. v. Eichman (1990), Cole majored in English at Yale University and graduated in 1980. Before he argued NEA v. Finley (1998), he was a Yale Law School student, graduating in 1984, and then a law clerk to Third Circuit Judge Arlin M. Adams (1984-85). Long before Cole argued Holder v. Humanitarian Law Project (2010) with then-Solicitor General Elena Kagan on the other side, he was a staff attorney for the Center for Constitutional Rights from 1985 to 1990, and then taught at Georgetown Law School starting in 1994. Just prior to leaving for Georgetown Law, he successfully argued National Rifle Association of America v. Vullo (2024).

To be sure, in the course of his long career there was a time when he was on the “other side,” as in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018). But hell, even Justice Louis Brandeis had a dark moment as when he voted to sustain the conviction of Charlotte Whitney in 1927. (See Collins and Skover, “A Curious Concurrence: Justice Brandeis' Vote in Whitney v. California,” Supreme Court Review, 2005).

• The ACLU & the First Amendment: David Cole interviewed by Jess Bravin, First Amendment Salon (Dec. 8, 2016)

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In 2013, then professor Cole was selected as the inaugural recipient of the Norman Dorsen Presidential Prize by the ACLU Foundation. High praise indeed — yet one wonders: Will the ACLU of today select a successor with the free speech spirit of Cole? Will it continue the free speech tradition that Cole so ably represented? Whatever the answer, one thing is certain: David Cole will be a difficult act to follow, if only because he revitalized a proud tradition that must always struggle to fight another day.

Other free speech cases argued or briefed by David Cole include:

• Mahanoy Area School District v. B.L. (2021)
• North Jersey Media Group, et al. v. Ashcroft (2002)
• Reno v. American Arab Anti-Discrimination Comm. (1999)
• Bullfrog Films, Inc. v. Wick (1998)
• Lebron v. National Railroad Passenger Corp. (1995)
• Gay Men's Health Crisis v. Sullivan (1992)
• Open Door and Dublin Well Woman v. Ireland (1992, European Court of Human Rights)
• Rafeedie v. Immigration and Naturalization Service (1989)
• Randall v. Meese (1988)
• Heidy v. US Customs Service (1988)
• Ad-Hoc Committee of Baruch Black and Hispanic Alumni Association v. Baruch College (1987)
• David Cole on the 'Material Support' Law and the Constitution, American Constitution Society (2011)

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Writings by David Cole on free speech

• “‘We Do No Such Thing’: 303 Creative v. Elenis and the Future of First Amendment Challenges to Public Accommodations Laws,” Yale Law Journal Forum (Jan. 29)
• “The University and Freedom of Expression,” The New York Review (Feb. 15, 2022)
• “Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law,” Basic Books, 2016 (revised paperback edition, 2017)
• “Why Free Speech Is Not Enough,” The New York Review (March 23, 2017)
• “Let Them Buy Cake,” The New York Review (Dec. 7, 2017)
• “After Snowden: Regulating Technology-Aided Surveillance in the Digital Age,” Capital University Law Review (2016)
• “Free Speech, Big Money, Bad Elections,” The New York Review (Nov. 5, 2016)
• “What Should We Do About the Leakers?” in “After Snowden: Privacy, Secrecy, and Security in the Information Age,” Ed. Ronald Goldfarb (2015)
• “The Three Leakers and What to Do About Them,” The New York Review (Feb. 6, 2014)
• “The First Amendment’s Borders: The Place of Holder v. Humanitarian Law Project in First Amendment Doctrine,” Harvard Law and Policy Review (2012)
• “The New McCarthyism: Repeating History in the War on Terrorism,” Harvard Civil Rights-Civil Liberties Law Review (2003)
• “Criminalizing Speech: The Material Support Provision,” in Stewart A. Baker and John Kavanagh, eds., “Patriot Debates: Experts Debate the USA PATRIOT Act” (2005)
• “Government-Funded Art and the First Amendment,” in Michael Kelly, ed., “Encyclopedia of Aesthetics” (Oxford University Press, 1998)
• “Playing by Pornography's Rules: The Regulation of Sexual Expression,” University of Pennsylvania Law Review (1994)
• “From Hand-Holding to Sodomy: First Amendment Protection of Homosexual (Expressive) Conduct,” Harvard Civil Rights-Civil Liberties Law Review (1994) (with William Eskridge)
• “First Amendment Antitrust: The End of Laissez-Faire in Campaign Finance,” Yale Law & Policy Review (1991)
• “Agon at Agora: Creative Misreadings in the First Amendment Tradition,” Yale Law Journal (1986)

More in the news

• Josh Blackman, “Making Sense of the Moody Opinions In NetChoice,” The Volokh Conspiracy (July 15)
• Mike Vilensky, “Michigan ‘Conversion Therapy’ Ban Faces Free Speech Lawsuit,” Bloomberg Law (July 15)
• “City Fine for Profane Yard Sign About Biden and Trump Was Unconstitutional, Judge Rules,” First Amendment Watch (July 15)
• David Greene, “Platforms Have First Amendment Right to Curate Speech, As We’ve Long Argued, Supreme Court Said, But Sends Laws Back to Lower Court To Decide If That Applies To Other Functions Like Messaging,” Electronic Frontier Foundation (July 13)
• Emily Nayyer, “Surveys reveal rising student and faculty concern about censorship, self-censorship post-October 7” FIRE (July 12)
• Dennis Hetzel, “Fla. Supreme Court says peaceful protesters can’t face rioting charges,” Free Speech Center (July 9)

2023-2024 SCOTUS term: Free expression and related cases

Cases decided

• O’Connor-Ratcliff v. Garnier 
• Speech First, Inc. v. Sands (certiorari granted, judgment re: the bias policy claims vacated, and case remanded to the Court of Appeals for the 4th Circuit with instructions to dismiss those claims as moot) (Thomas and Alito, dissenting)
• National Rifle Association of America v. Vullo 
• Vidal v. Elster
• Gonzalez v. Trevino (vacated and remanded, per curiam with Alito, Kavanaugh, and Jackson (joined by Sotomayor) concurring in separate opinions and Thomas dissenting)
• Murthy v Missouri (decided on Art. III standing grounds)
• Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton 

Review granted

• Free Speech Coalition, Inc., et al., v. Paxton
• Vidal v. Elster (argued Nov. 1)
• O’Connor-Ratcliff v. Garnier (decided March 15, see below under “State Action”)
• Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton (argued Feb. 26)
• National Rifle Association of America v. Vullo (argued March 18)
• Murthy v Missouri (argued March 18)
• Gonzalez v. Trevino (argued March 20)

Pending petitions

• Henderson v. Texas
• Murphy v. Schmitt
• Villarreal v. Alaniz 
• In Re First Choice Women's Resource Centers, Inc.
• Pierre v. Attorney Grievance Commission of Maryland
• No on E, San Franciscans Opposing the Affordable Care Housing Production Act, et al. v. Chiu
• Pierre v. Attorney Grievance Commission of Maryland

State action

• Lindke v. Freed (Barrett, J., 9-0: “The state-action doctrine requires Lindke to show that Freed (1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts. To the extent that this test differs from the one applied by the Sixth Circuit, we vacate its judgment and remand the case for further proceedings consistent with this opinion.”)
• O’Connor-Ratcliff v. Garnier (Per Curiam: 9-0: “We granted certiorari in this case and in Lindke v. Freed (2024), to resolve a Circuit split about how to identify state action in the context of public officials using social media. Because the approach that the Ninth Circuit applied is different from the one we have elaborated in Lindke, we vacate the judgment below and remand the case to the Ninth Circuit for further proceedings consistent with our opinion in that case.”)

Review denied

• O’Handley v. Weber
• Frank v. Lee
• Mckesson v. Doe (Separate statement by Sotomayor, J.)
• Brokamp v. James
• Griffin v. HM Florida-ORL (application for stay denied)
• M. C. v. Indiana Department of Child Services
• Spectrum et al v. Wendler
• Porter v. Martinez
• Molina v. Book
• Porter v. Board of Trustees of North Carolina State University
• NetChoice, LLC v. Moody
• Alaska v. Alaska State Employees Association
• X Corp. v. Garland
• Tingley v. Ferguson (Justice Kavanaugh would grant the petition for a writ of certiorari. Justice Thomas, dissenting from the denial of certiorari. (separate opinion) Justice Alito, dissenting from the denial of certiorari. (separate opinion))
• Jarrett v. Service Employees International Union Local 503, et al
• Sharpe v. Winterville Police Dept.
• Winterville Police Department v. Sharpe
• Stein v. People for the Ethical Treatment of Animals, Inc., et al.
• Blankenship v. NBCUniversal, LLC
• Center for Medical Progress v. National Abortion Federation
• Frese v. Formella
• Mazo v. Way

Free speech related

• Miller v. United States (pending) (statutory interpretation of 18 U.S.C. § 1512(c) advocacy, lobbying and protest in connection with congressional proceedings) 
• Fischer v. United States (vacated and remanded, 6-3 per Roberts with Barrett, Sotomayor and Kagan dissenting: To prove a violation of §1512(c)(2), the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in an official proceeding, or attempted to do so.)

Last scheduled FAN

FAN 431: “Thoughts on realism and free speech: The ‘Wu Effect’ and the continuing liberal drift away from the First Amendment”

This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.