ACLU to represent NRA in Supreme Court free speech case

The American Civil Liberties Union and the National Rifle Association agree on very little. They are often on opposing sides in major cases and certainly have radically different views on gun rights.

But when the Supreme Court agreed to hear the NRA’s free speech challenge against what it said were efforts by a New York official to blacklist it, one of its lawyers had a bold idea. Why not ask the ACLU to represent him before the judges?

“The NRO can be considered the 800-pound gorilla of the Second Amendment,” said attorney William A. Brewer III. “Clearly, the ACLU is the First Amendment’s 800-pound gorilla.”

David Cole, national legal director of the civil liberties group, said the request in some ways poses a difficult question.

“It’s never easy to defend those you disagree with,” he said. “But the ACLU has long held 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 criticized for becoming less attentive to the principles of free speech and more committed to values ​​rooted in equality in recent years. He rejected that criticism, although he acknowledged that the decision to represent the NRA would not be met with universal praise.

“It’s going to be controversial, within the ACLU and beyond,” Mr. Cole said. “But if it was easy, it wouldn’t mean so much.”

He added, “In this hyper-polarized environment where few are willing to cross the aisle for anything, the fact that the ACLU is defending the NRA here only underscores the importance of the underlying principle of free speech.”

In a statement, the civil liberties group drew a distinction.

“The ACLU does not endorse the NRA or its mission,” the statement said. “We signed on as paralegal because public officials should not be allowed to abuse the power of office to blacklist an organization simply because they oppose the organization’s political views.”

A central issue in the case, National Rifle Association v. Vullo, No. 22-842, is whether Maria Vullo, the former head of the New York State Department of Financial Services, used government power in a way 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 U.S. Court of Appeals for the Second Circuit in New York ruled against NRA Judge Denny Chin, who, writing for the panel, recognized that government officials cannot “use their regulatory powers to physically or legally coerce persons to refrain from protected speech.’

“At the same time,” he wrote, “government officials have the right—indeed, the duty—to deal with matters of public concern.”

Ms. Vulo’s actions were on the right side of the constitutional line, Judge Chin wrote. Key documents, he said, “were written in a level-headed, non-threatening tone and used words designed to persuade, not intimidate.”

The question of when government advocacy violates the First Amendment is before the justices in another case this term. This one concerns the Biden administration’s efforts to persuade social media companies to delete what the government says is misinformation about topics such as the coronavirus pandemic and the 2020 election.

In its petition for Supreme Court review, the NRA, represented by Mr. Brewer’s firm and Eugene Volokh, a prominent First Amendment scholar, said the appeals court’s ruling could have serious implications.

“The Second Circuit’s opinion below gives public officials free reign to financially blacklist their political opponents, from gun rights groups to abortion rights groups to environmental groups and more,” the petition reads.

In response, Ms Vulo’s lawyers wrote that “the ability to express an opinion on important matters of public policy is vital to the work of many public servants”.

The brief added that Ms. Vullo “did not violate the First Amendment by expressing her views on a national tragedy and 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 entry into the case.

Mr. Cole, who will represent the NRA when the case is heard by the justices, likely in March, said it involved principles that apply to all kinds of groups.

“If Maria Vullo can do this with the NRA, then why can’t a regulator in Texas do it with an immigrant rights group or a regulator in Arkansas do it with Planned Parenthood?” he asked.

He added that federal officials can also abuse their power, according to the appeals court ruling. “Donald Trump has made no secret of his desire to exact revenge on his opponents,” Mr Cole said. “It would be a playbook for him to do just that.”

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