The ACLU filed an amicus brief in support of the National Rifle Association’s lawsuit against New York state authorities. New York has sent letters offering “guidance” to financial institutions that do business with gun-advocacy groups, and has imposed millions of dollars in fines on insurance companies retained by the NRA. The NRA claims — and the ACLU agrees — that this is unconstitutional: “In the ACLU’s view, targeting a nonprofit advocacy group and seeking to deny it financial services because it promotes a lawful activity (the use of guns) violates the First Amendment,” writes ACLU legal director David Cole.
This is an interesting, and I think welcome, development in the ongoing tug-of-war over the proper nature of the ACLU. One side thinks the ACLU should not consider a private entity’s politics when choosing to defend it against state incursions on its civil liberties, while the other thinks the ACLU should explicitly weigh political concerns and defend only those who occupy a disadvantaged position in some hierarchy. Though the group was founded by anti-war socialists, for most of its existence the former principle has governed: On speech, privacy, and other matters, the ACLU has defended Communists and neo-Nazis alike. But in recent years, as it has increasingly waded into partisan politics, its defenses of speech have wavered as the latter principle has gained more of a foothold. This decision cuts against that trend.
That tug-of-war I mention above is really happening. Last August, the group faced immense public backlash for having offered support to the Unite the Right rally organizers before their rally was held. In June, an internal memo revealed that the group would begin to consider whether political speech would have a deleterious impact on “marginalized communities” before exerting resources to defend it. I criticized the ACLU at the time, arguing that its changing position on speech was a consequence of aligning with progressives who believe that to defend facially neutral principles in a structurally unequal world is to legitimate these unjust hierarchies. So I found myself wondering whether this move to back the NRA in what seems like an open-and-shut First Amendment case has been met with any backlash from the left.
Sure enough, as Mark Joseph Stern writes in Slate, there has been plenty of criticism of the ACLU — from within the ACLU. Even for a group that welcomes internal heterodoxy, the decision was hotly contested: The New York chapter of the ACLU declined to support the national office, and a debate broke out on the listserv. “While some attorneys vigorously defended the group’s brief,” Stern writes, “some litigators fumed, concerned that the organization had needlessly tarnished its reputation by devoting limited resources to help the NRA.”
The arguments these critics resorted to are instructive. The New York chapter argues first that the facts of the case are “contested,” and that the legal question does not break any new ground. But more enlightening are its contentions that 1) the NRA has “enormous resources” and thus does not need the ACLU’s help, and 2) working with the NRA may have an “impact . . . on our work with important allies.” Meanwhile in response to legal director Cole’s fairly rudimentary point that if a state could target the NRA with this activity, it could also target a group such as Black Lives Matter, one litigator emailed that it is “deeply problematic . . . to use BLM as a shield for actions that support white supremacy,” and an ACLU attorney told Stern that he is “wary of any suggestion that somehow a principled defense of the powerful will benefit the disempowered.”
Criticizing the ACLU for defending the NRA, Unite the Right, or other groups is justified with reference to a hierarchy: whether a group is “marginalized” or not, “disempowered” or not, “oppressed” or not. (The New York chapter uses “resources” as a proxy, but that’s not quite right: The NRA may have the resources to defend itself in court, but other gun-advocacy groups also targeted by state regulators may not, and white supremacists are often reduced to begging for money online.) The problem in their eyes is that the ACLU has not endorsed what Stern calls “a vision of liberty that openly favors the oppressed over the oppressors.” That is, the only way for the ACLU to satisfy substantive demands of justice is to abandon its commitment to formal justice.
I would object that the oppressed–oppressor scale is amorphous, extremely coarse-grained, and collapses easily into simple partisanship. But for now I’ll just observe that Governor Cuomo and New York state regulators are justifying their pursuit of the NRA on exactly the same principle of targeting “oppressors.” In an interview, Cuomo defended the state’s actions against the NRA on these grounds: “The NRA represents an extremist group . . . been counterproductive . . . always been against any progress . . . caused carnage in this nation.”
This should put the stakes of the tug-of-war in sharp relief. The ACLU views its legal advocacy as a way to establish the rightful scope of private freedom in the U.S. For the ACLU to ignore state action against state-designated oppressors because it, too, views them as oppressors would be to tacitly side with the state. It would mark a fundamental departure from the ACLU’s longtime purpose. Its decision to back the NRA deserves praise, but the group remains on the brink, and the effort to pull it over won’t stop anytime soon.