ACLU defends censorship in Virginia

ACLU defends censorship in Virginia
ACLU protesters (Image: ACLU of Massachusetts)

In Virginia, the ACLU did nothing to help parents who were subjected to clearly-unconstitutional censorship in Fairfax County. Instead, it filed a brief in support of censorship in neighboring Loudoun County.

In Virginia’s Fairfax County, mothers Debra Tisler and Callie Oettinger suspected their Fairfax County school district was wasting taxpayer money on excessive legal fees. Tisler made a Freedom of Information Act request, and Oettinger published some of the records Tisler received on her website, after redacting any confidential information. School officials sued both women, demanding that the court order the mothers to return the documents—even though Tisler had legally obtained them—and order Oettinger to take the information off her website.

Incredibly, a state court judge granted a temporary order last month ordering Oettinger to take down the information. This was a flagrant, obvious violation of Supreme Court rulings declaring that such court orders against speech are unconstitutional “prior restraints” that violate the First Amendment. The Supreme Court has long made clear that people can’t be prevented from publishing information given to them by the government, even when the government gave them that information by mistake, and even when the information is highly private in nature. (See, e.g., Florida Star v. B.J.F. (1989)).

As of today, the ACLU has not said one word about this highly-publicized instance of censorship, which has been widely discussed in the media in the last couple weeks, such as at Fox News, on TV, and in print publications.

Instead of being helped by the ACLU, the parents had to obtain legal representation from the Goldwater Institute, which is located more than 2,000 miles away. The ACLU could easily have filed a brief in support of these parents, because it has many lawyers in Washington, DC and Richmond, Virginia. But it hasn’t.

While the ACLU had no interest in helping these parents facing censorship, it was eager to intervene in a lawsuit in neighboring Loudoun County, to help a school board accused of First Amendment violations.

On October 14, the ACLU announced, “Three teachers in Loudoun county are going to court simply because they don’t want to use trans & nonbinary students’ pronouns. We and partners filed an amicus brief to tell the court: Refusing to use a student’s pronouns because of who they are is discrimination.” The ACLU’s brief was filed in Cross v. Loudoun County School Board. In that case, the Virginia Supreme Court, relying on the First Amendment, earlier upheld a court order temporarily reinstating a coach who was suspended for objecting to transgender-pronoun mandates at a school board meeting.

The ACLU argues that teachers and students can be forced to use a transgender student’s preferred pronouns. The Supreme Court has never ruled on that issue. But the federal appeals court in Cincinnati ruled in Meriwether v. Hartop (2021) that a professor could not be ordered to use a transgender student’s preferred pronouns, because such compelled speech violated the First Amendment.

Some observers were appalled by the ACLU’s stance. “Compelled speech in a government school is a violation of the First Amendment. Why is the ACLU advocating for compelled speech?,” asked Professor Geoffrey Miller.  “The ACLU went woke years ago, abandoning civil liberties (free speech, due process),” said lawyer Candice Jackson, who once headed the Education Department’s Office for Civil Rights and served as deputy general counsel of the Education Department.

Calling transgender people by their preferred pronoun can be challenging. For example, the District of Columbia’s transgender best practices guide tells employers and workers to use imaginary pronouns like “ze” and “zir” to refer to transgender individuals who prefer that, and to use ungrammatical plural forms like “they” and “themselves” to refer to individual transgender employees who so desire. The Daily Caller described this in an article titled, “D.C. Will Fine You For Calling A Transgender Person The ‘Wrong’ Pronouns.”

Transgender pronoun demands can lead to costly lawsuits. In Oregon, a school district settled a transgender discrimination claim, paying $60,000 to a transgender employee who demanded to be called “they” rather than “he” or “she.” The district also agreed to “develop official guidance documents” for “pronoun usage,” and “violations of the guidance will be grounds for discipline.”

The teacher effectively forced his co-workers into using “they” to convey an idea about language and how language should be:  “Some people might argue, ‘Why don’t you just use “he?” It’s masculine,’” he said. “But ‘they’ continuously points to the fact that the language is not inclusive.” As the Portland Tribune noted, “using ‘they’ as a singular pronoun sets off grammar alarms in many people’s brains.”

As law professor Eugene Volokh observed in the Washington Post, to mandate such “highly conspicuous, nonstandard usage . . . violates basic First Amendment principles. Drivers, the Supreme Court held in Wooley v. Maynard (1978),” have the right “not to display ‘Live Free or Die’ on their license plates,” because people have the right to refuse to promote “the State’s ideological message.’ They would likewise be free not to display ‘Language Should Be More Inclusive.’ And they should be free not to use words that ‘set off grammar alarms’” that signal such an ideological message.

Similarly, Professor Volokh notes, it’s wrong for the government to force people to use “ze,” a made-up word that carries an obvious political connotation (endorsement of the “non-binary” view of gender).

Non-transgender people have no right to force people to call them by an imaginary or ungrammatical pronoun, so transgender people should not be able to make such demands, either.  Courts have ruled that civil-rights laws do not create a right to affirmative action or special treatment based on race or gender, in cases such as Coalition for Economic Equity v. Wilson (1997).

The ACLU’s antipathy to free speech is nothing new. Although ACLU stands for “American Civil Liberties Union,” it has often gone to court to fight civil liberties, such as freedom of speech, since the 1990’s. It has filed briefs on the losing side, urging that people’s freedom of speech, association, or religion be curtailed, in many First Amendment cases. In the Supreme Court, such cases include Rosenberger v. University of Virginia (1995), Masterpiece Cakeshop v. CCRC (2018), Boy Scouts v. Dale (2003) and Capitol Square v. Pinette (1995).

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.” Contact him at


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