By Louise Melling, ACLU Deputy Legal Director and Director of Ruth Bader Ginsburg Center for Liberty & David Cole, ACLU Legal Director

The nation stands alert, anxious about armed actions planned for Jan. 17 and Jan. 20 to contest the election of Joe Biden and Kamala Harris. The FBI has warned of the potential for armed demonstrators targeting legislatures, and extremist groups have made their intentions clear on message boards.

Last week we witnessed an insurrection, with white supremacists storming our nation’s capital, some ready to take whatever actions they thought necessary to ensure their leader remained in power, despite decisive Electoral College and popular votes against him. The insurrectionists killed a police officer, brutally beat news reporters and other police officers, and chanted, “Hang Pence.” The Capitol was breached, leadership were rushed to secret secure locations, congressional offices were stormed, and bombs were planted outside the offices of the Democratic and Republican National Conventions. Many members of Congress and staff and those charged with securing their safety feared for their lives. After a long summer of protesting to affirm to the nation that Black Lives Matter, we saw the Confederate flag on parade in the U.S. Capitol.

As the nation steels itself for the threat of repeat performances across the country, some have asked what states can do to protect their people and representatives. In particular, can weapons be banned at protests? In the ACLU’s view, the answer is yes — so long as the ban is applied neutrally to all, without regard to the viewpoints of a march.

To be clear, what happened at the Capitol on Jan. 6 was not a protest, but a violent insurrection that left five dead and many more injured and endangered. Violence, threats, and intimidation have no place in the exchange of ideas and are not protected by the First Amendment.

But where the issue is a protest and one that is peaceful, can states nonetheless ban protesters from carrying guns? Yes.

The U.S. Supreme Court has held that the Second Amendment protects a right to possess a gun in one’s home, but that right is not absolute. As the Supreme Court stated, it is not a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The Second Amendment permits “reasonable regulations” of arms. Indeed, the court was explicit that nothing in its opinion recognizing a right of individuals to bear arms “should be taken to cast doubt on … laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”

We have longstanding laws to keep guns out of sensitive places like government buildings and airports. Visitors can’t bring guns into the U.S. Capitol or the Supreme Court. In other jurisdictions, people can’t bring a gun to polling sites during voting. Police confiscate any weapons that revelers bring to the National Mall on the Fourth of July every year. The rationale for these constraints is clear: Guns create safety risks that the state has a right to regulate. While some regulations of the possession and use of guns raise Second Amendment concerns, a ban on carrying weapons at a protest does not.

The result is the same under the First Amendment. To be sure, openly carrying a gun can send a message, but the government has long had the power to set limits on the time, place, and manner of assemblies. Such restrictions need only be reasonable and content-neutral, meaning that they apply equally to all, regardless of ideology, political affiliation, or message. The government can limit the hours and volume of protests held outside hospitals or schools, for example — as long as the rule applies without regard to the content of the speech.

Similarly, a ban on guns is a reasonable time, place, and manner restriction on a protest — provided that it is applied uniformly to all protests and all protesters. It’s about safety, not expression.

Importantly, barring weapons at a protest doesn’t stop gun owners from speaking about any topic. It doesn’t stop speech in protest of the restriction, nor does it stop speech however odious or hateful. Those who seek to protest Donald Trump’s loss in the November election are free to do so — as long as they do so peacefully. And states and local governments also have the authority to bar weapons at protests.

Our right to speech is about words, not weapons.

As the COVID-19 pandemic stretches on and worsens, people across the country face the devastation left in its wake. The public health and economic consequences of the pandemic have cost millions of people their jobs and the ability to pay rent — leaving far too many renters facing the added threat of eviction and losing their homes.

The patchwork of responses has yet to slow down the eviction crisis thus far. Congress first responded through the CARES Act by putting a halt on evictions with a moratorium for a fraction of tenants across the country, but this expired in July 2020. In September, the Centers for Disease Control and Prevention adopted another moratorium protecting more renters until the new year. Congress then extended that moratorium for one month. Despite this, heading into January, up to 14 million households were at risk of eviction, and the rental assistance provided by Congress in the stimulus bill will reach some too late and others not at all. And come Jan. 31, 2021, the federal moratorium — as well as many of the remaining local and state moratoria on evictions — is set to expire. This will leave millions of families and communities unprotected from the threat of eviction.

Once these tenant protections end, landlords will not hesitate to pursue mass evictions. Data from the Eviction Lab shows that landlords have filed evictions in droves the moment federal, state, and local moratoria have ended, and in some jurisdictions, eviction filings are actually increasing despite the moratoria that are still in place. 

Eviction court proceedings are skewed to favor landlords and evict people from their homes.

Eviction proceedings historically have been unfair and imbalanced. In the courts, the odds are stacked against tenants: 90 percent of landlords are represented by legal counsel in evictions, but fewer than 10 percent of tenants have representation. 

This isn’t surprising considering many tenants are facing eviction because of unforeseen circumstances or financial stress that prevents them from being able to afford their rent, let alone counsel. Others lack the ability to go to court due to employment, child care, or transportation restrictions. On top of this, tenants have few options for legal aid and legal services programs, and legal aid has always been underfunded. Any defenses that are available to a tenant are virtually impossible to prove without a lawyer. As a result, tenants default at high rates, and landlords count on this imbalance to file meritless eviction cases. This systematically sets up tenants to fail, forcing them to leave their homes and leaving them to deal with the devastating, long-lasting impacts of eviction. 

Black tenants — especially Black women — disproportionately face the threat of eviction. 

Due to decades of inequalities in our housing system, communities of color and low-income women feel the impacts of eviction the most — Black women in particular. Black women are more than twice as likely to have evictions filed against them as white people. Less than half of Black and Latinx families own their homes compared to 73 percent of white families. Black and Latinx tenants are also twice as likely as white tenants to report that they have little to no ability to make rent each month. Longstanding systemic income and wealth inequality also put communities of color and women at higher risk of eviction. 

The harms of eviction also run deep — having an eviction on your record results in blacklisting, as many landlords will not even consider an applicant with a prior eviction filing, even if they won the case. Eviction records follow people for years, stigmatizing already vulnerable groups and blocking them from housing opportunities.

Securing tenants’ right to counsel is key to fighting mass evictions.

Securing tenants’ right to counsel is one way federal and state governments can take action to stop this impending mass wave of evictions and keep people in their homes during the pandemic and beyond. Right to counsel measures ensure that tenants who are facing the complex process of an eviction proceeding are guaranteed legal representation — giving tenants a fair chance to access legal protections and stay in their homes. Additionally, tenant attorneys can help tenants apply for rental assistance, ensure that courts do not proceed while such applications are pending, and address situations where landlords refuse to accept the rental assistance.

Right to counsel measures for tenants in eviction proceedings have been enacted in seven cities to date: New York City, San Francisco, Newark, N.J., Cleveland, Philadelphia, Boulder, Colo. and Baltimore. And these measures actually work. 86 percent of tenants who had representation as a result of New York City’s right to counsel legislation were able to remain in their homes. In San Francisco, the eviction filing rate decreased by 10 percent between 2018 and 2019, and of those receiving full representation, 67 percent stayed in their homes. Providing a right to counsel allows people and families to keep their homes and communities, and in the time of a pandemic, promotes public health. 

Federal and state governments need to take action to protect tenants from mass evictions. 

With the federal eviction moratorium set to end on Jan. 31 and no additional federal emergency rent relief in sight, it is paramount for Congress, states, and cities to act — and supporting right to counsel measures must be key to addressing mass evictions. The emergency package that passed Congress and was signed into law on Dec. 28 fell far short, extending the moratorium only until the end of January, providing a fraction of what is needed in rent relief, and allocating only $20 million in total for tenant representation while failing to explicitly address right to counsel. The ACLU and National Coalition for a Civil Right to Counsel call on the federal government to provide funding support for cities and states that implement a right to counsel for tenants in eviction proceedings, as well as to implement a fully effective moratorium on evictions and additional rental assistance for tenants. 

We need meaningful action to stop mass evictions during the pandemic and beyond. All people — regardless of their circumstances or background — should have access to safe and stable housing.

By Anthony D. Romero, ACLU Executive Director

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.