If there was ever any doubt that Donald Trump would cement a campaign heralded by calling Mexicans rapists into policy, it was dispelled on 27 January 2017, when, to cap his first week in office, the president issued an executive order barring entrance from a slew of Muslim-majority countries. The so-called “Muslim travel ban” immediately roiled the country’s airports, as travelers were detained and families indefinitely separated in the midnight hours after the ban’s announcement. At the same time, protesters gathered outside the federal courthouse in Brooklyn; as depicted in early scenes from The Fight, a new documentary on the American Civil Liberties Union (ACLU), a crowd cheered as lawyers got to messy, long-haul business of going to judicial war.
Actor Kerry Washington, most recently of Hulu’s Little Fires Everywhere and a producer on The Fight, watched on TV as the deputy director of the ACLU’s Immigrants Rights Project, Lee Gelernt, exited the courthouse to chants of “ACLU! ACLU!” and declared a temporary victory: those detained by the new administration in airports would not be deported. Gelernt’s breathless recounting of the injunction’s relief had the feel of a post-championship court-side interview, and it caught Washington’s eye. “They are going to be on the frontlines of all the most important battles that we’re going to be facing to defend our civil rights and civil liberties,” she recalled thinking to the Guardian. “Who’s going to be in the trenches with these guys capturing this war movie that’s unfolding in front of us?”
In the crowd at the Brooklyn courthouse that night was Elyse Steinberg, a documentary film-maker captivated by the same determined exhilaration on Gelernt’s face. “When Lee got his victory and he emerged from the steps and I saw him with his fists raised high,” she told the Guardian, “I just felt like this is the film that we needed to make. We needed to be with the ACLU and the lawyers in this epic battle for civil liberties that was going to be raging for the next four years.”
In the three and half years since Steinberg stood outside the courthouse, the ACLU has held the legal line against the civil rights assaults of the Trump administration, work that The Fight depicts as variously harried and routine for the Manhattan-based team of lawyers and deeply consequential for the clients they represent. The Fight, co-directed by Steinberg, Josh Kriegman and Eli Despres follows four pivotal court cases central to combatting the Trump administration’s racist, Maga-exclusive agenda: the separation of migrant families at the southern US border and the horrific, indefinite detention of children without their parents; a policy which allowed the Office of Refugee Resettlement to deny abortion access to an undocumented woman detained by Ice; the addition of a citizenship question to the decennial US census; and the blanket ban of transgender people from serving in the US military.
In each case, The Fight reveals the work of an ACLU attorney, particularly under an administration whose policies are often enacted without regard for bureaucratic chaos, to be mostly a scramble: hustling through briefs, cramming in a hotel room the night before argument, hungrily reading just-downloaded PDFs. The moments of mundane work dilemmas – Gelernt finding a single workable outlet at Starbucks to charge his dying phone, the LGBT & HIV project attorney Joshua Block fussing with uncooperative Microsoft Word dictation, the voting rights lawyer Dale Ho accidentally misreading a consequential decision or saying goodnight to his kids during another long day on the road – paint a fuller picture of the work. They take the ACLU staff “from being these larger than life Avengers legal superheroes, which is what they are, to also being husbands and wives and moms and dads, regular folks who have figured out how to use their talent for good in the world”, said Washington.
The unglamorousness of the hustle, or of the reproductive rights lawyer Brigitte Amiri’s celebratory “train wine” on the Amtrak back to New York after a favorable hearing, contrast sharply with the stakes of the court cases at hand. “If I’m not going to be a civil rights lawyer right now, in this moment, then…when?” says Ho as he worked on a census decision which, had it been in favor of the administration, would have inaccurately skewed fair representation in Congress and federal funding for a decade to come. Amiri’s case – in which the federal government unlawfully barred an unidentified, undocumented asylum claimant for obtaining an abortion was “a harbinger of things to come”, she told the Guardian, as it preceded several states passing abortion restrictions or outright bans in 2019.
The Trump era has rebranded the ACLU, founded in 1920 as a non-partisan defender of civil liberties, from the nation’s premier public-interest law firm into an explicitly progressive organization, a primary beneficiary of grassroots donations for the #resistance; the organization raised $79m from over a million donors between Trump’s election and February 2017. But the pivot has raised renewed questions about the organization’s ideological commitments; The Fight touches briefly on the group’s contentious history as ardent defenders of the first amendment, such as its famous defense of neo-Nazis’ right to march through downtown Skokie, Illinois, in the 1970s – a decision which set a half-century of precedent for free speech protections of protests, cost it thousands of members and raised questions about the lengths to which a blanket commitment to free speech withstood on-the-ground scrutiny.
As the crew filmed, a state branch of the organization sued the city of Charlottesville, Virginia, in August 2017 to allow the white supremacist Unite the Right to be held downtown. The subsequent violence, in which a car plowed into a crowd of counter-demonstrators and killed 32-year-old Heather Heyer, launched a reckoning for the ACLU. The filmmakers captured, in part, internal discussion to revise its free speech for all policy for those carrying weapons.
The traumatic shadow of Charlottesville looms large, as does the grueling slog of the administration’s fourth year, but all three directors said the process of filming was ultimately hopeful. The film, said Washington, is a reminder that even given Covid-19 circumstances, which has rendered some of the scarring conflicts of just two years ago unfathomably distant, “the fight is possible, it’s happening” and viewers can “get in the fight by filling out your census”.
“Fill out your census and vote and show up – donate your time, donate your money, be part of the solution at a time when it’s truly needed,” she added.
The work on the ground continues: if the census question felt like incredibly high stakes in 2019, then opposing the suppressive chaos of elections in a pandemic (such as the massively curtailed polling locations, especially in majority-black areas, in the Georgia and Wisconsin primary elections) feels like “an everything-is-on-the-line moment”, Ho told the Guardian, “because if people don’t feel safe voting in November, we’re not going to have a free and fair election”.
“We’re doing everything we can to make sure people can vote safely and no one feels like they have to make a choice between protecting their health and exercising their right to vote,” Ho said, a pandemic update on the mantra of relentlessness offered by Amiri in the film: “All I’ve ever known how to do was fight and so we just keep fighting,” she says, knee deep in the scramble to maintain reproductive rights access for the most marginalized in America. “And even though we’re tired and even though it’s exhausting and it’s maddening, it’s what we do.”
The Fight is released digitally in the US and UK on 31 July.
