By Adam Pagnucco.
The American Civil Liberties Union (ACLU) of Maryland has weighed in on the current controversy surrounding CASA’s remarks on Israel last week. Specifically citing the statement by Montgomery County’s nine state senators, the ACLU has released its own statement claiming that any effort to “punish” CASA for its “protected political speech” would be unconstitutional.
ACLU’s statement is reprinted below.
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ACLU of Maryland Statement in Support of CASA and the First Amendment
MEDIA CONTACT
Meredith Curtis Goode, media@aclu-md.org
November 15, 2023
The ACLU of Maryland firmly supports CASA and their fundamental First Amendment right to issue statements of public concern in the public forum. It would be both wrong and unconstitutional for the Montgomery County Senate Delegation, or any government officials, to act on threats to punish CASA based on their protected political speech.
CASA was founded by people fleeing violence in Central America, and provides the Maryland immigrant community with basic services, jobs, health services, and English classes, and creates the possibility for immigrants to build the foundation for thriving in their community. CASA builds power for positive social change from the ground up, with an intentional focus on working class Black, Latino/a/e, Afro-descendent, and Indigenous communities. In its statement, CASA expressed solidarity with the people of Palestine, stating that they “strongly support[] the struggle for decolonization” and “condemn[] the outrageous attack by Hamas on Israel”, and “call for an immediate cease-fire to save all precious life”.
The Montgomery County Senate Delegation issued a response suggesting that anything short of unconditional agreement with its own views about the conflict could result in defunding CASA. The threat to defund CASA for its statement amounts to unconstitutional viewpoint discrimination: the government cannot favor one side of a public debate while suppressing the other. Publicly threatening to defund an organization because of its political position is exactly the kind of viewpoint discrimination that the Constitution forbids, and among the most dangerous kind of wrongdoing by public officials because it fundamentally threatens democratic institutions, and chills not only the direct target, but anyone else thinking about also speaking out.
Further, the Delegation’s statement directly threatens collective punishment of the immigrant community, which has for many years relied on and benefited from CASA’s unique, broad, and deep expertise and impact. The Delegation’s claims of allyship to the immigrant community ring false, as no true advocate for the rights of Maryland immigrants would condition support on silence and compulsory allegiance to the government’s opinions.
To be crystal clear, CASA’s speech is fully protected under the First Amendment to the U.S. Constitution. Threats to terminate contract and grant funding for statements made in the public forum on matters of public concern fly in the face of the most basic free speech rights, and the U.S. Supreme Court has said as much:
“It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. Other principles follow from this precept. In the realm of private speech or expression, government regulation may not favor one speaker over another. Discrimination against speech because of its message is presumed to be unconstitutional. These rules informed our determination that the government offends the First Amendment when it imposes financial burdens on certain speakers based on the content of their expression. When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”
Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 828–29 (1995) (citations omitted).
Regardless of CASA’s status as a contractor or grantee, the government cannot seek to regulate or punish their privately funded political speech. See Bd. of Cnty. Comm’rs, Wabaunsee Cnty., Kan. v. Umbehr, 518 U.S. 668 (1996) (county government’s decision to terminate or not renew plaintiff’s trash hauling contract in retaliation for his speech critical of the county commissioners violates First Amendment on same terms as apply for government employees); Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205 (2013) (Congress cannot require NGOS that receive grants to combat HIV/AIDS to have a policy explicitly opposing prostitution; government cannot seek to leverage funding to regulate speech outside of the contours of the program being funded). Courts have also recognized that retaliatory nonrenewal of grant funding based on the viewpoint expressed violates the First Amendment. See, e.g., Esperanza Peace & Just. Ctr. v. City of San Antonio, 316 F. Supp. 2d 433, 436-64 (W.D. Tex. 2001) (city’s decision to discontinue grant funding for arts organization in retaliation for their LGBTQ+ advocacy in their grant funded programming punished them for their viewpoint in violation of First Amendment). There can be no doubt that CASA’s statement expressing solidarity with the Palestinian people is purely political speech that is not part of the government funded immigrant services they provide. It is equally clear that the Delegation’s threat to cease funding CASA’s work is explicitly tied to that private political speech.
The Delegation’s improper threats put all advocacy organizations, student organizations, and individual advocates on high alert that the Senate Delegation will seek to use their official authority to silence people who disagree with them. The Delegation should retract its threat to defund CASA and refrain from further abuses of their authority. The immigrant community, the AMEMSA (Arab, Middle Eastern, Muslim, and South Asian) community, and any others who fear expressing their First Amendment protected political views deserve better. Marylanders must be entitled to express First Amendment protected political views without fear of government reprisal.
Just as the ACLU acted to protect the Constitution in the wake of September 11 and resisted former President Trump’s Muslim Ban, we will oppose unlawful efforts to shut down and chill speech aligning with AMEMSA and other BIPOC communities whose views do not align with the government’s in this political debate.
Make no mistake, if retaliatory action is taken to defund the essential services that CASA provides to the immigrant community, we will respond accordingly.