Public Counsel’s Mark Rosenbaum speaks at a press conference at Bubble Bath Hand Car Wash in Torrance, California, where two workers were recently unlawfully arrested by ICE.
In the first year of the second Trump administration, more than 350 cases have been filed to date in response to its actions, a record for any president over such a short period of time. There’s no reason to expect this deluge to stop. But because it remains an open question how much the administration actually intends to comply with the many court orders issued in response to its actions, litigation can only be part of a larger strategy to respond to what the administration is doing.
Take, for example, a recent court order restricting immigration stops, stemming from a case filed jointly by the American Civil Liberties Union (ACLU) and Public Counsel, which barred authorities from stopping or arresting people based solely on racial profile (and then from detaining them without legal representation or due process). Last Monday, the Supreme Court lifted the lower court’s restrictions. But while the administration was appealing the order, it had not ceased the immigration raids, as the court had ordered. A purely legal strategy, in such a situation, is clearly inadequate for the work we are doing.
Pressure must be applied outside the courtroom as well as inside it. And despite the administration’s apparent indifference to public opinion, public sentiment is not irrelevant in the broader political and legal ecosphere. Even in the president’s case, there is evidence that he cares what certain people think, as exemplified by the now infamous TACO trade on Wall Street, and a stated openness to finding ways to legally employ migrant farm workers, to list two examples.
Moving the needle on public opinion can ultimately build a base of support for cultural and policy change that can stand the test of time. For this reason, litigation in an information vacuum not only represents a missed opportunity for advocates, but seeing litigation as one part of a larger storytelling campaign can change hearts and minds for the long term, across social groups and identities.
A central challenge is that while many public interest cases have significant, direct impacts on millions of Americans, the legal process is designed to be inaccessible, using its own language, having its own processes and rules, and operating in very insular ways. Especially for those who believe in accessible and transparent justice, pairing litigation with communications is therefore not only the best way to address the problem of the moment, but an opportunity to engage, educate, and mobilize citizenry.
So much of the communication around major cases starts with the law and then goes to the facts, but it should be the other way around. After all, legal principles gain their meaning from what happens to real people, with whom the public can empathize. By translating what is happening in a case and why it matters, you create pathways for folks to engage, learn, and ideally mobilize in your or your issues’ favor.
Moreover, there’s a reason courtroom dramas continue to find their place on your favorite streaming service: Legal cases are rich with characters, narratives, and conflict. At its best, litigation communications is about augmenting often-arcane legal arguments with messaging centered on the shared values at play, the lives impacted, and the personal stakes for those who may otherwise feel distant from the case (or where the impacts may not be immediately clear).
Take, for example, the case of Daniel Ramirez Medina, a DACA recipient who was unlawfully detained by Immigration and Customs Enforcement (ICE) just weeks into President Trump’s first term, and represented by Public Counsel. ICE’s actions were based in falsely claiming Mr. Medina was a gang member, among other things, and held him without regard for his legal rights. As the first DACA recipient to be arrested and held, Mr. Medina’s case became the blueprint for how to respond to the Trump administration’s overreach, providing a playbook of sorts for lawyers and advocates alike. Along with countering the administration’s legal arguments, this included executing a relentless communications effort to counter the government’s aggressive portrayal of Mr. Medina as a criminal, by showing Daniel for who he was (and is): A longtime, law-abiding resident, a committed father and partner, and a hard-working individual who was no different from the more than 500,000 DACA recipients living lawfully across the country.
At Public Counsel, we framed Daniel’s story as a cautionary tale of the harm that broad, unchecked agency power can have on protected families and American citizens living in the United States. We shared that story across broadcast and local television, radio, print, and social media platforms, with members of Congress and other officials, and with the immigration advocacy community broadly. In 2018, a federal judge barred the government from revoking Medina’s DACA status, reinforcing the legitimacy of his legal right to remain. Public opinion also shifted as other components of the administration’s approach to immigration prompted public outcry, with more Americans in 2020 viewing immigration positively.
We are using a similar approach to counter the ongoing immigration raids now randomly sweeping up health and childcare workers, food service and construction teams, field hands and contributors to the American economy. Here we have focused on the connection between the folks being apprehended and the increased cost of goods and services, which are costs the American electorate shares a deep concern about. Moreover, as was true in the Medina case, there is a clear distinction to be drawn between hard working folks contributing positively to their community and the murderers, drug dealers, and rapists (real or imagined) the administration promised to focus on. The former enjoy broad public support, and connecting their fate to the administration’s disregard for any reasonable legal boundaries has fueled growing opposition to its hardline approach, with the potential power to influence future policy.
Why do so many organizations litigate but don’t communicate? With most resources being dedicated to the cost and time associated with a lawsuit, communicating about an active case can be tricky. And yet litigation under the cover of darkness and away from the public spotlight is only a half measure when fundamental rights are at stake. Even if a litigation-only approach may result in a legal victory, moving public opinion and the politics of the moment may be what is actually needed for the illegal activity to cease (or for a legal outcome to be durable).
This has been most evidently the case where it relates to marriage equality, where a broad and persistent communications campaign helped move public opinion. The campaign certainly benefited from the positive portrayal of same-sex couples on television, and Harvey Milk’s legacy in bringing the gay and lesbian community out of the shadows, but everything about the advocacy campaign was precise and intentional: We leveraged every filing and hearing to engage the media, every plaintiffs’ anniversary, birthday, or personal milestone to build community on social media, and every piece of testimony to build a narrative that showed how baseless the opposition to marriage equality really was. Between 2010 and 2015, public opinion on marriage equality shifted 25 percent, and even now, public support remains strong despite some pullback from Republican voters.
A strong litigation communications strategy also opens the door to a win-by-losing approach, something many organizations should consider or even plan for. Especially when courts are not reliable, a near-term legal defeat can still be offset by an evolution in public perception. This has certainly been true of recent environmental cases, where not all cases have been won but where 61 percent oppose the president’s actions on this issue. Between 2017 and 2020, a period of extreme environmental litigation, public sentiment around climate change shifted by 11 percent.
For foundations that litigate, or that might themselves be forced to litigate, the takeaway here is both-and: Fund the best legal teams to develop the best legal theories and pursue litigation where necessary. But don’t only do that part of the puzzle. Whether you win or lose in the near-term, couple your legal strategy with a communications strategy so that you make the “what’s at stake” and “who is impacted” of your work better known. Doing so builds a more durable base of support.
The judicial branch of government provides a unique and valuable platform to tell a critical and compelling story. But it is a platform you have to seize and take advantage of. The story won’t write itself.
Read more stories by Mark Rosenbaum, Felix Schein & Hillary Moglen.