newsletter 12/15/22

Cause for Optimism this Holiday Season

Institute for Constitutional Advocacy and Protection
GEORGETOWN LAW

Season’s Greetings from all of us at ICAP! 

As ICAP wraps up its fifth year of advocacy and litigation on the pressing constitutional issues of our time, we hope you’ll put a bow on it by supporting our work!  Although we are within Georgetown Law, ICAP is self-funded.  Our work to preserve democratic institutions and defend constitutional values would not be possible without generous contributions from supporters, whose gifts directly fund the salaries of our lean team of talented litigators, pay our litigation expenses, and help sustain ICAP for the challenging fights to come.  Follow this link to make a one-time gift or become a sustaining monthly supporter.

Thank you!

After another year of apprehension and uncertainty over the future of American democracy, we enter 2023 with optimism about the strength and resilience of our country’s people and institutions.  Following unprecedented organizing, public education, and preparation by ICAP and our coalition partners around the threat of election-related political violence, we were relieved that the midterms transpired largely without incident.  Meanwhile, voters from both parties sent a clear message to reject extremism and chaos, defeating election deniers in every state in which they sought statewide office.  Historic justice has also been done in our courts, where a jury vindicated the Justice Department’s prosecution of members of the Oath Keepers for their role in the January 6 insurrection, returning guilty verdicts on seditious conspiracy and obstruction charges.  ICAP’s Executive Director Mary McCord was one of the first to call for the government to consider seditious conspiracy charges, and recently wrote this insightful breakdown of the verdict in Just Security.

Supreme Court tea leaves are infamously difficult to read, but last week’s oral argument in Moore v. Harper—a case Judge Michael Luttig calls “the most important case for American democracy literally since the founding of the nation”—gave us more reason for measured hope.  In a brilliant argument by ICAP’s faculty chair, Neal Katyal, a majority of the Court seemed disinclined to adopt a maximalist version of the “independent state legislature” theory, which could give partisan state legislatures nearly unchecked power to subvert the will of their voters.  ICAP contributed to the case both behind the scenes and on the docket, filing an amicus brief on behalf of a bipartisan group of former Pennsylvania officials highlighting the dangers of eliminating state court review of partisan gerrymandering for compliance with state constitutions.

ICAP also continues its efforts to preserve constitutional rights victories in the federal courts of appeals by persuading the Supreme Court to decline to intervene.  This Fall, we successfully secured the denial of Supreme Court review in five important civil rights cases, including a pair of fatal police brutality decisions where eleven Ninth Circuit judges dissented from the denial of en banc review (briefs available here and here) and a Title IX decision addressing a university’s obligation to protect a student from sexual harassment by her professor (brief available here).       

Also at the high court, ICAP filed a brief on behalf of former CIA Director John Brennan and 20 former national security officials, warning of the national security threats posed by online radicalization to violence.  Our brief argued that Section 230 of the Communications Decency Act—passed in 1996 to facilitate development of the Internet by immunizing internet platforms from liability for harms caused by posting third-party content—could not have been intended to bar suits against internet platforms for harms caused by terrorist content amplified and recommended by their own algorithms.  In another case, we filed a brief on behalf of three Jewish advocacy organizations, urging the Court to hear a constitutional challenge to a law penalizing boycotts of Israel and outlining how throughout history, Americans—including Jewish Americans—have engaged in boycotts as an expression of their ideological commitments.  

Our litigators also continue to achieve notable victories in the lower courts.  Last week, a federal court agreed with ICAP that Maryland’s “Broadcast Ban,” which prohibits members of the public from broadcasting official recordings of criminal proceedings they have lawfully obtained, violates the First Amendment. In a significant win for the freedoms of speech and press, the court held that the Broadcast Ban “burdens too much and furthers too little” to pass constitutional muster, noting that “[p]ublic scrutiny of a criminal trial enhances the quality and safeguards the integrity of the factfinding process.”  Likewise, ICAP prevailed in federal court against a challenge seeking to exclude student voices from the Howard County school board, following our victory on this issue in a separate state court case this summer.

ICAP’s innovative advocacy continues to feature in national and local media outlets and on the national political stage. Just days before the election, the New York Times Editorial Board published a powerful editorial, “America Can Have Democracy or Political Violence. Not Both,” which pointed to ICAP’s anti-militia litigation—and our recent injunction against a New Mexico militia—as a model for political violence prevention.  And earlier this week, Mary McCord appeared before the U.S. House Committee on Oversight and Government Reform’s Subcommittee on Civil Rights and Civil Liberties to testify on the evolution of anti-democratic extremist groups and paramilitary organizations. You can read her written testimony here.

Finally, ICAP is thrilled to announce that our first Policy Counsel, Jacob Glick, joined us this week, fresh off his work as investigative counsel on the House January 6 Committee.  Jacob previously served as counsel to Rep. Jamie Raskin on the House Committee on Oversight and Government reform.  He brings a wealth of relevant expertise and insight to our fast-developing policy work.  Please join us in welcoming him to ICAP!

From all of us at ICAP, we wish you and yours a happy holiday season. Thank you as ever for your support.

Keep up with ICAP on Twitter via @GeorgetownICAP; and suggest what we should take on next via reachICAP@georgetown.edu.With thanks for your continued support, The ICAP Team.