The ACLU has a new client: the National Rifle Association
The American Civil Liberties Union and the National Rifle Association agree on very little. They often find themselves on opposite sides in big cases, and they certainly have very different views on gun rights.
But when the Supreme Court agreed to the NRA’s free speech criticism of what it said were a New York official’s efforts to blacklist the NRA, one of its lawyers had a bold idea. Why not ask the ACLU to represent her before the judges?
“The NRA can be seen as the 800-pound gorilla of the Second Amendment,” said attorney William A. Brewer III. “It is clear that the ACLU is the 800-pound gorilla on the First Amendment.”
David Cole, the national legal director of the Civil Liberties Group, said the request in some ways raised a difficult question.
“It is never easy to defend those you disagree with,” he said. “But the ACLU has long stood for the position that we may not agree with what you say, but we will defend to the death your right to say it.”
Mr. Cole’s group has occasionally been subject to criticism in recent years that it has paid less attention to the principles of free speech and is more committed to values rooted in equality. He rejected that criticism, even as he acknowledged that the decision to represent the NRA would not be met with universal praise.
“It will be controversial, inside and outside the ACLU,” Mr. Cole said. “But if it were easy, it wouldn’t mean much.”
He added: “In this hyper-polarized environment, where few are willing to go on and on about anything, the fact that the ACLU is here defending the NRA only underlines the importance of the principle of free speech at stake.”
In a statement, the civil liberties group made a distinction.
“The ACLU does not support the NRA or its mission,” the statement said. “We joined as co-counsel because government officials should not abuse the agency’s powers to blacklist an organization simply because they oppose an organization’s political views.”
A central question in the case, National Rifle Association v. Vullo, No. 22-842, is whether Maria Vullo, a former superintendent of the New York State Department of Financial Services, abused the government’s power in a manner that violated the First Amendment.
According to the NRA’s lawsuit, Ms. Vullo crossed a constitutional line by encouraging banks and insurance companies to stop doing business with the group after the 2018 school shooting in Parkland, Florida. The rampage left 17 people dead.
A unanimous three-judge panel of the United States Court of Appeals for the Second Circuit in New York, ruled against the NRA. Judge Denny Chinwriting for the panel, acknowledged that government officials “may not use their regulatory powers to coerce individuals or entities to refrain from engaging in protected speech.”
“But at the same time,” he wrote, “public officials have the right – and even the obligation – to address issues of public interest.”
Ms. Vullo’s actions were on the right side of the constitutional line, Judge Chin wrote. Key documents, he said, “were written in an even-handed, non-threatening tone and used words intended to persuade rather than intimidate.”
The question of when government advocacy violates the First Amendment will be before the judges in a different case this term. That concerns the Biden administration’s efforts to convince social media companies to remove what the administration says is misinformation on topics such as the coronavirus pandemic and the 2020 election.
In his request for review by the Supreme CourtAccording to the NRA, represented by Mr. Brewer’s firm and Eugene Volokh, a leading scholar of the First Amendment, the appeals court’s ruling could have far-reaching consequences.
“The Second Circuit opinion below gives government officials free rein to financially blacklist their political opponents — from gun rights groups to abortion rights groups to environmentalists and more,” the petition said.
In answerMs. Vullo’s lawyers wrote that “the ability to express an opinion on important public policy issues is critical to the work of many government officials.”
The letter added that Ms. Vullo “has not violated the First Amendment by expressing her views on a national tragedy and by encouraging regulated entities to reconsider their relationships with gun promotion organizations.”
Neal K. Katyal, a lawyer for Ms. Vullo, declined to comment on the ACLU’s participation in the case.
Mr. Cole, who will argue for the NRA when the case is likely to be heard by the justices in March, said it involves principles that apply to all kinds of groups.
“If Maria Vullo can do this at the NRA, why can’t a supervisor in Texas do this at an immigrant rights group, or a supervisor in Arkansas at Planned Parenthood?” he asked.
He added that federal officials could also abuse their power under the appeals court ruling. “Donald Trump has made no bones about getting revenge on his opponents,” Cole said. “This would be a playbook for him to do just that.”