Shortly after the 2016 election, the American Civil Liberties Union launched an extremely effective ad campaign. The ACLU believed the incoming administration’s agenda to be contrary to the values of its organization and its constituency. “See you in court,” the ACLU promised. The money poured in. And they indeed went to court—a lot.
President Joe Biden likewise has made commitments and promises that Alliance Defending Freedom—the largest conservative, non-profit, legal organization in the nation—believes to be contrary to the values of our constituents and organization. Indeed, they are contrary to values essential to any healthy society.
We aim to replicate the ACLU’s strategy—but with laser focus and greater success. We will not stand idly by while the Biden administration threatens the fundamental rights, values, and the very freedom of millions of Americans.
The gravest threat that arises from Biden’s plans is the clear and present danger presented to one of our most basic freedoms: freedom of speech. Americans used to all unite behind the idea, “I may disagree with everything you say, but I will defend to the death your right to say it.” But no more.
Biden’s promises—as well as the political history of both Biden and Vice President Kamala Harris—indicate they are committed to retreating from this fundamental principle.
Harris was the attorney general of California when she helped to engineer and defend a law suppressing the free speech of pro-life pregnancy centers. Naturally, as an abortion advocate, Harris despises the messages coming from pro-life voices, but she went beyond disagreeing; she sought to force pro-life advocates to deliver her favored pro-abortion message.
California law forced these pro-life centers to tell their clients that the state of California offered free or low-cost abortions—and who to call to get one. Coercing someone to communicate a message they believe is immoral is a classic violation of freedom of speech. And in the California case, it was done with the full expectation that these pro-life centers would not comply and thus would close their doors. Coercion was the means; silencing pro-life voices was the ultimate objective. Fortunately, after I argued this case before the U.S. Supreme Court, California’s law was held to be unconstitutional by a 5-4 vote.
Similarly, the Equality Act—championed by Biden and Harris—contains multiple attacks on freedom. It will erect a federal standard that forces people like our client Jack Phillips, the cake artist who owns Masterpiece Cakeshop, to promote messages and celebrate events through their artwork that violate their religious beliefs. And the bill eliminates protections available under the federal Religious Freedom Restoration Act.
This is an assault on two First Amendment freedoms: freedom of speech (coerced artistic expression) and the free exercise of religion (the freedom to live your life consistently with your beliefs).
Additionally, the Equality Act outlaws counseling—which is clearly speech—that seeks to advise young people struggling with gender dysphoria. Counseling is legal if the counselor urges the young person to identify with a new gender, but it is illegal if the counselor wishes to help the young person work to return to comfort with their biological sex.
That is called viewpoint discrimination and is likewise a classic violation of the freedom of speech.
The ACLU also supports the Equality Act. The irony is the ACLU used to be the organization that would defend those with whom they disagreed. They used to understand that if you want freedom of speech for yourself you must defend it for others, even those with whom you vehemently disagree.
But the ACLU has abandoned its classical view of freedom of speech. And ADF has arisen to fill the gap.
On the issue of campus free speech alone, we have won over 400 victories against public universities that have restricted the free speech of students based on their viewpoints. Invariably, it is conservative speakers who are censored these days. But our commitment is unequivocal. We will vigorously pursue litigation—in the university context and elsewhere—according to the principle that free speech is for everyone, regardless of ideology.
We have every reason to believe the Biden administration will pursue policies and actions that silence, harass, punish, and persecute those who fail to measure up to their “progressive” standards.
Let me say this clearly: We will not be silenced. See you in court.
