"The everyday guy can fight and sometimes win": ACLU doc goes inside four David & Goliath cases

"The Fight" directors tell Salon they want the film's viewers to see that civil rights are not about partisanship

Published July 31, 2020 5:00PM (EDT)

Brigitte Amiri and Dale Ho in "The Fight" (Magnolia Pictures)
Brigitte Amiri and Dale Ho in "The Fight" (Magnolia Pictures)

The uplifting documentary, "The Fight," available virtually July 31, chronicles the efforts of four ACLU lawyers taking on a quartet of cases in 2019 dealing with immigration law, reproductive rights, voting, and LGBT discrimination. Codirected by Eli B. Despres, Josh Kriegman, and Elyse Steinberg, the film lays out the issues of each case, but focuses mainly on the lawyers, who meet with clients, practice their speeches, get flustered, and react to the decisions. 

The film addresses the efforts of the ACLU to "defend individual rights and liberties guaranteed by the constitution of the United States," a mission it has held for 100 years. While the organization has defended cases of free speech, interracial marriage, pornography, evolution, abortion, and same-sex marriage, over the years, a segment in the middle of "The Fight" shows how the ACLU does not have to agree with its clients. They assisted Milo Yiannopoulos, the Westboro Baptist church, and white supremacist groups, whose march in Charlottesville, Virginia culminated in Heather Heyer's death.

"The Fight" intercuts its four case studies with news clips, such as Trump's speeches and tweets, as well as other media to show how each case plays out. The film's four cases are: 

  • Garza v. Hargan A 17-year-old Jane Doe is denied a desired and constitutional abortion by Scott Lloyd, the then Director of the Office of Refugee Resettlement when she is detained; Argued by Brigitte Amiri
  • Stone v. Trump. Brock Stone, a transman in U.S. military, contests the transgender ban on military personnel, potentially ending his service and benefits, or other transpeople from enlisting; Argued by Joshua Block and Chase Strangio
  • Ms. L v. ICE. A mother seeking asylum has her child taken away from her; Argued by Lee Gelernt
  • Department of Commerce v. New York. Is it "arbitrary and capricious" to add a citizenship question to the Census? Argued by Dale Ho

The filmmakers take a verité approach to showing how these ACLU lawyers handle the pressures and strategies of their work. In a recent Zoom interview, Despres, Kriegman, and Steinberg spoke about making their documentary and the ACLU. 

How did you determine which cases to select, and how did you get the lawyers to agree to be filmed doing their high-pressure work?

Elyse Steinberg: The idea for the film came about because seven days into Trump's presidency, the night he enacted his Muslim ban, I joined the protestors on the steps of the Brooklyn courthouse. I was a few steps away when Lee [Gelernt] emerged after the decision came down and his fists were raised high. I could see his expression on his face and the total shock and exhilaration and the crowds of people chanting "ACLU." I felt this was a story we needed to tell. We needed to be with Lee and the ACLU in this moment. For the next four years, the story of ACLU vs. Trump was going to be one of these great, significant civil rights battles of my lifetime, and as verité filmmakers this is where we needed to come in. I came back that night with the idea. 

Eli B. Despres: Eylse came back to the office and she erased the whiteboard where we write down our ideas, and she wrote "The Fight" and said we are getting inside the ACLU. And there went the next three years.

Josh Kriegman: We went to the ACLU and we pitched them. We are verité documentary filmmakers and we explained our style — to get inside and have total access to the lawyers at all moments, the strategy sessions, the arguments, practice sessions, debates, [film] in the hallways, and personal stuff, and they heard our vision and they said, "That was a wonderful vision, but there's no way you're ever going to be able to film here." Many, many conversations later, they came around to allowing us in. We built trust in what we wanted to do as filmmakers and why, and they recognized in the aftermath of Trump being elected that it was an undeniably historical moment that needed to be documented. There was that mission component. 

Steinberg: It still baffles me. I remember the phone call and doing the pitch and saying we want to be inside the ACLU, and show everything, but they said you will never make a documentary on the ACLU. It began a long series of conversations. They realized what an important moment it was and that it needed to be documented for history. We were there and following the cases that emerged. We got to follow some of the most important stories — family separation, abortion rights, voting rights, LGBT rights, some of the defining civil rights battles that are central to American history now.

Kriegman: In terms of choosing our subjects, we knew these cases were critically important, but we met these lawyers, and we felt this kind of spark of excitement that documentarians are always chasing. Watching dynamic, talented people at the height of their abilities, pushing themselves to the limit, that is absolutely electrifying. The topics were important, but the people we were with were extraordinary. We knew that we wanted to be with them for the next few years. 

The film also considers the history of these issues, from the 1940s Japanese Internment camps to 1963 and voting rights, and the 1970s, with abortion, even a gay marriage case. Obviously, these issues are still topical. What observations do you have about the cyclical nature of the cases?

Despres: The moment that's ongoing right now resonates with our movie. Our movie starts with protest in the street. Over and over again in U.S. history, you see these movements start in public, whether it's suffragettes, the Civil Rights movement, the gay rights movement with Stonewall, and then they move into the courtroom. We are seeing that happen again. For us, there's a cynical view of the cyclical nature of this but the ball keeps moving down the field. ACLU lawyer Chase Strangio had a huge victory [a month ago with Bostock v Clayton County] at the Supreme Court, as did all Americans who believe in equal rights. This story is part of the grand tapestry of the quest for justice in the United States. I'm inspired. We felt privileged to have been able to be with these people documenting this. 

Kriegman: The film is an invitation for people to feel hope and inspiration and feel energized. Many people have observed that it is in the midst of crises that authoritarians seize opportunities to take hold, and for lack of security and safety or out of fear we relinquish certain rights, but we are in a moment where it's more important than ever for us to be vigilant about preserving liberty and the ACLU is at the forefront of these battles — as they have been.

Steinberg: The cyclical nature — it's what a lot of the ACLU lawyers talk about. They understand that this is a struggle and that it's long, and they have to keep going and they look at history. But they talk about the Martin Luther King line, "The arc of the moral universe is long, but it bends towards justice." But that gives a sense of hope that you have to believe in this fight you win sometimes, and when you do, you move forward, and sometimes you step back and then you move forward again. Chase is gobsmacked and exhilarated that he got this win [Bostock]. It gives us a sense of hope, and one reason we wanted to make this film was to show that the everyday guy can fight and sometimes win. That's a nice message for everyone who is feeling activated. 

How did you conceive of the time frame for the film, and arrange to film the action as it unfolded? You could not have been aware of how the cases would be decided when you started filming.

Kriegman: One of the pitfalls of the work is that we really can't dictate how it unfolds. We knew that we wanted to be there, but we were bracing for the reality that legal cases unfold over a long period of time and we would have to be persistent to capture the arc of these cases as they actually unfolded. It really was just a matter of staying in there for as long as we needed to to see the progression of these cases as they worked their way through the courts.

Despres: There is a reason the courtroom thriller is a well-trod genre. There is a [built-in] tension, and we did not know the ending. But we knew that if we stuck around, we'd end up in a courtroom, perhaps the Supreme Court, and something important would unfold because of what our subjects had been doing.

Steinberg: We felt with a courtroom case, there is an inherent three-act structure to it. We didn't know how long it would take, which is one of the challenges with legal cases, unlike an election. We had to be with these subjects and stories. And it still goes on, but we were able to get the full story. 

What decisions did you make on how you told the story, from intercutting the cases to using animation for the courtroom scenes, and introducing clips and footage to build conflict?

Despres: Whenever possible, we never want to use talking heads who don't have any skin in the game. We like our experts to actually be participating in the story. I don't think we will go to an academic holding forth unless they are participants. It's important to us to let subjects tell their own story. And let the audience just watch what's happening and absorb it — the arguments, the strategy sessions, or Lee is getting information in real time about his case while he's going on the air. Those are the visceral moments we live for as documentarians. In terms of structure, it was a challenge because there are four stories. We had support from the editors in putting this together. It was a lift. [Determining] how deep a dive to do and how much you help the audience become an expert in the legal cases is a real balancing act. We tried many different cuts of scenes, making them more or less complex or nuanced, but we knew the backbone was always going to be the experience of our subjects doing this unbelievably difficult thing with incredibly high stakes. 

You present what Brigitte Amiri calls, "A canary in a coalmine" case as Jane Doe will be forced to carry her baby to term against her will if the decision goes against her. It could have lasting impact for Roe v. Wade. You emphasize the importance not just of the Supreme Court and Brett Kavanaugh being the judge in Amiri's case, but also the importance of a class action suit so it is protection for more than just one woman, but all women. Can you talk about that?

Steinberg: One of the things with Brigitte's case was that the ACLU, when they look to take a case, it has to have the underlines of a class action. Brigitte, initially, had a sense that there were other women who could not get an abortion. She wasn't sure. Then it started to unfold in real time that there were more women out there. She had not experienced anything like that in her many years of working. It was a real David v Goliath thriller. It also felt like this was a test case. It had the implication for Roe v. Wade when you have more and more judges that Trump put into the Federal Courts open to overturning Roe v. Wade, and Republican representatives and governors who were supporting pro-life and feeling that abortion rights are under threat right now. It's a scary time for abortion rights. It was one of the great moments to film was watching the great victories. And I was with her when she had that [celebratory] train wine. 

There is a consideration in Stone v. Trump that Josh Block, a cisgender man, argues for transpeople. His colleague, Chase Stranglio, who is trans, is reluctant to participate because of his inexperience. How did you read that situation and their working relationship?

Despres: I think that the thing that interests us was following these historic moments through these personal stories. We're interested in these subjects as human beings. That happened early in filming. You can tell the friendship between Josh and Chase is real and profound. There are very complicated feelings in the dynamic between them, and their roles in this case are genuine.

I tip my hat to Elyse who spearheaded these relationships. It's about building trust with the subjects who are willing to be unguarded and express themselves while you are there. They understand our intention is fidelity to truth and telling their story and staying out of their way and not editorializing. I think making them comfortable enough to have that conversation with us there was exciting and wonderful. It's hard to say more about that dynamic than what's on screen. They have complicated feelings about that relationship and who is doing what and they represented themselves well.

Kriegman: That moment highlights a way to emphasize the humanity of the people behind the cases. The heroism lies in not just that they are fighting to save democracy, but we are seeing that through a personal lens and these moments of humanity that we relate to as viewers that hammers home the larger story that is unfolding around them. 

In the voting case Dale Ho has to prove discriminatory intent without framing the case that way. What concerns, if any, did you or he have about revealing the inner workings of the lawyers and their strategies?

Steinberg: We actually talked with Dale about this and filming those moments. Initially, with all the lawyers, there was a bit of wanting to establish trust and a relationship, but very quickly, once we established our relationship, we got out of the way. "Your work is important, and we are just here to film." They felt we weren't there, and their motivation to let us in was the same as the ACLU's; they felt this was such an important moment, and it needed to be documented and it needed to be told. The stakes were so high. Yes, there was a concern they might look embarrassed and going home with him and see him juggling with his children, and see him fumble and make mistakes, but it was about highlighting the stakes of his case. They all forgot about us, but they spent more time with us than their spouses, usually. 

The immigration lawyer, Lee Gelernt, is invested in protecting the rights of immigrants and not letting the president separate families. He emphasizes the trauma of the separated families. His emotions were so powerful. What thoughts do you have about how emotion plays a role in these cases? 

Steinberg: The story of family separation is just horrifying, and Lee said it was one of the worst things he'd seen in 20 years. He felt the need to humanize what was happening for the judges and take out the legal arguments and really hit home that children were being separated from parents. There is nothing more horrifying or devastating to think about. Lee was the first lawyer to file a class action lawsuit to stop this. He was on the front lines of that and he's still trying to reunite parents and their children.

Despres: Why he's so electric and compelling on screen is three-fold. He's a monster in the courtroom and a devastating intellect, but he's not the guy you want to assemble your IKEA furniture. But he's so clearly living and dying with his clients. Those elements make him impossible to tear your eyes off. The stakes are monstrously huge and because of the character traits in Lee, you can't stop watching him. I'm really grateful he's out there, and it's not me. He's a great champion for these people. 

I like the point the film makes about how the travel ban language gets watered down until it passes, or the transgender ban in the military changes so it can be enacted. What observations do you have on this heinous practice of inciting fear and playing to a base? 

Kriegman: Yeah, it's one of the things about Trump, and I'd be curious to see what they lawyers say about this, but my sense is that his opening volley is so extreme and so shocking in so many different arenas. I mean, out to the gate with the Muslim ban, it was so far beyond what you would imagine an American president would do that he somehow manages to walk it back and water it down, and negotiate it back to something less shocking. By that point, people are inured to the reality of what it actually is, yet it is still extreme policy. You saw that with the Muslim ban and Josh and Chase's case. It's a striking part of his strategy that is disturbing in its effectiveness. 

Steinberg: The lawyers were surprised. Watching it, they didn't know what his administration would do. Would his tweets become policy? After Trump tweeted he was going to kick transpeople out of military, was that going to become policy? Maybe he's just tweeting, but then the policy came down. And then they challenged it, and then they won, and they adapted. The fact that the Trump administration continued to fight it, and they were adapting and getting better. It made the job of the ALCU lawyers harder.

Despres: There are such demands on our attention. Lee would give press statements at the height of the travel ban with scores of microphones, and towards the end, he'd see a gaggle of reporters there, and it turns out they were there for something different. It's hard to keep the American public's attention on everything that matters, but there are people paying attention. But there is a connection between what happens in the street and what happens in the courtroom. 

You include scenes of the lawyer reacting to hate mail, attacks via email and phone messages. Obviously, your subjects are doing a job they believe in to help others. Do you think "The Fight" can change minds?

Kriegman: I hope so. When did the Constitution become a partisan issue? There is a certain audience for the film, but the hope is the that film encourages people to think of civil rights in a basic sense. It's not a question of partisanship or a question about Trump; it's really a question about liberty. I certainly hope that the film will help people reflect on that and possibly help Trump supporters reflect on that and cause them to reconsider.

Steinberg: The reason that we like to tell these stories is to get behind these big cases and see the human story and what it's really like to be with these lawyers in these epic battles. In that way it's a universal struggle. These lawyers are just everyday people dealing with their children and the pressure of the job, and our hope is that everybody can see the stakes of this fight through this personal lens, and that is a universal message.

"The Fight" is available in theaters and on demand beginning July 31.

By Gary M. Kramer

Gary M. Kramer is a writer and film critic based in Philadelphia. Follow him on Twitter.

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