Shortly before the American Civil Liberties Union filed a brief in support of the National Rifle Association on Friday, David Cole, the ACLU’s national legal director, sent out a short email to staff. Cole explained that he felt that New York Democratic Gov. Andrew Cuomo had “explicitly target[ed] the NRA” based on its “constitutionally protected political advocacy” by advising banks and insurers not to do business with the pro-gun group. “If the state can penalize gun promotion advocacy groups by threatening their service providers,” Cole continued, “it can do the same to other groups”—including Black Lives Matter. Thus, the ACLU had decided to urge the courts to “carefully scrutinize” whether Cuomo has tried to unconstitutionally punish the NRA based on “hostility to [its] viewpoint.”
Within hours, the organizationwide listserv had lit up. Staffers at both the national office and state affiliates wrote back to register their frustration with Cole’s decision. The ACLU of New York sent out a statement on Monday explaining why it had declined to support the national office’s position. Some attorneys vigorously defended the group’s brief; others cautiously endorsed it, while complaining that its authors had failed to seek input from other stakeholders before committing to a contentious stance. Privately, some litigators fumed, concerned that the organization had needlessly tarnished its reputation by devoting limited resources to help the NRA, a formidable lobbying group with the means to defend itself.
Friday’s brief marks the third time in about a year that the ACLU has come to the defense of conservative expression and incurred backlash among its own staffers. That fallout illustrates a fierce dispute within the organization over who deserves its aid during this violent moment in American history, as a resurgence of xenophobia and racism threatens vulnerable people across the country. The rift is not only a conflict over resource allocation or bad publicity. It is a fight over the true definition of civil libertarianism in the Trump era. In the fierce backlash to the NRA decision, those who favor standing up for the marginalized—while letting the powerful fight their own battles—seem to be winning.
In one sense, the internal debate over the NRA brief shows the ACLU at its best. In line with its free-speech credo, the organization tolerates and even fosters a commendable amount of dissent in its ranks. “We not only take great pride in the diversity of our employees, but also the diversity of their own viewpoints and opinions,” Cole told me. So, on Monday, with Cole’s assent, three members of the New York Civil Liberties Union sent a companywide email explaining why they did not join the NRA brief and urged the national office not to file it. The email—which was signed by Art Eisenberg, legal director; Chris Dunn, associate legal director; and Donna Lieberman, executive director—laid out a series of key objections.
First, Eisenberg, Dunn, and Lieberman asserted that the NRA case does not “present any novel legal issue” worthy of the ACLU’s attention. Instead, it “turns on a fact-intensive inquiry” regarding information that is “deeply contested.” The lawsuit alleges that Cuomo penalized the NRA by exhorting insurers and financial institutions to cut ties with the group because of its pro-gun advocacy. But the state has been investigating the NRA’s Carry Guard insurance products, which indemnify members who fire guns in self-defense, since 2017. In 2018, the New York Department of Financial Services fined Lockton Affinity, the company that administered Carry Guard, $7 million for illegally covering criminal shootings and operating without a license. It also fined Chubb, the insurance giant that underwrote Carry Guard, $1.3 million for financing these unlawful practices.
If Cuomo really implored financial institutions to drop the NRA because he dislikes the group’s pro-gun expression, then he violated the First Amendment by retaliating against political speech. If, on the other hand, he issued his warning because the NRA was engaged in financial wrongdoing, then his actions were perfectly lawful. The Carry Guard fines, which ended in settlements from both Lockton Affinity and Chubb, point toward the latter possibility.
Eisenberg, Dunn, and Lieberman argued that they “suspect [the NRA] has contrived a First Amendment legal claim for its own political purposes.”
Second, Eisenberg, Dunn, and Lieberman noted that the NRA “has enormous resources and is fully able to present its First Amendment claim” and litigate the case. They further contend that, in light of the ACLU’s own “limited resources,” the organization should “distinguish between groups—like the NRA—that have enormous resources at their disposal” and those that do not, such as Black Lives Matter. They added that “we are mindful of the impact that defending the NRA may have on our work with important allies.”
A number of staffers made this final point in starker terms, directly criticizing Cole’s analogy between BLM and the NRA. One litigator at a state affiliate wrote to the listserv: “While I do respect the reasons others posit for taking this case on, I don’t respect the continued refusal of privileged decision-makers to recognize how deeply problematic it is to use BLM as a shield for actions that support white supremacy, particularly [from] an organization that enjoys the immense level of privilege we do.”
Another attorney at a state affiliate also argued that BLM was being used as a “shield” and added, “Comparing BLM to the NRA is a false equivalence. Show me one BLM rally/march/protest where a bunch of people of color are allowed to run around with guns hoisted on their hips.” Cole told me he did not mean to “equate the NRA and BLM” but rather to point out that “if a governor can get away with this against a well-resourced group like the NRA, then groups with fewer resources, like BLM, could also be targeted.”
The ACLU has struggled with this problem before. In August 2017, it helped white nationalists secure a permit to hold an armed demonstration at a downtown Charlottesville park. After white-nationalist demonstrators attacked counterprotesters and a man with ties to neo-Nazi groups allegedly killed Heather Heyer with his car, the ACLU was condemned for supporting the free-speech rights of the white supremacist rallygoers. Myriad ACLU members lodged complaints about the incident, and the organization decided to stop representing protesters who planned to carry loaded firearms. That same month, the ACLU defended white-supremacist troll Milo Yiannopoulos’ right to advertise his book on D.C.’s metro system. In response, staff attorney Chase Strangio issued a sharp statement denouncing his organization’s involvement.
Strangio was one of the first ACLU attorneys in the listserv discussion to dispute Cole’s characterization of the NRA case, writing that “a comparison between the NRA and BLM fails to account for the very different ways these groups face discrimination and violence and access power.” On Monday, he told me that “I am always questioning who has access to power and am wary of any suggestion that somehow a principled defense of the powerful will benefit the disempowered. I just have not seen our system work that way.”
Most of the ACLU staff members I spoke with echoed Strangio’s belief that by rushing to aid the NRA, the organization had failed to learn the lessons of last year. “The events of Charlottesville prompted a long-overdue internal discussion about how to balance our First Amendment advocacy with our work advancing other constitutional principles, like equal protection, and serving coalitions working with marginalized communities,” one ACLU attorney told me. “In that context, this decision feels like a step backward.” A state affiliate attorney told me that “our choices reflect little understanding of how power and privilege work in the real world.”
The ACLU had, in fact, previously moved toward incorporating what one staff attorney described as “power analysis” into its free speech litigation. In June, the Wall Street Journal published a leaked internal memo that sought to address potential “conflicts” between the organization’s “values and priorities.” In choosing which cases to take, the memo said, ACLU attorneys would consider structural power dynamics as well as the impact of the “proposed speech” on “marginalized communities” and the extent to which the speech may advance views that “are contrary to our values.”
The ACLU’s decision to fight for the NRA’s free expression would appear to be at odds with its ostensible shift in priorities. At bottom, the quarrel over Friday’s amicus brief is a debate over what civil libertarianism means in 2018. Does it require absolute fidelity to neutral principles like freedom of speech? Or does it require certain principles to yield in the face of renewed and devastating daily assaults on the equal-protection rights of marginalized groups across the country? The ACLU has long boasted that it defended Nazis in the 1970s. At the time, American Nazis seemed like vile but mostly harmless bigots. Today, both the president and his allies have embraced key elements of their white-supremacist ideology to varying degrees. And modern racists are able to demonstrate—and commit mass murder—with a terrifying arsenal of firearms, thanks in large part to laws promoted by the NRA.
“In the real world,” an ACLU litigator wrote on the listserv on Friday, “where our black allies live all the time, the single thing that is most impeding the speech of vulnerable communities is the fear of violence and targeting … every single day, everywhere.” The NRA has contributed to that horrific reality, helping to create an epidemic of gun violence that has disproportionately affected communities of color. Does the ACLU have an obligation to defend the NRA’s speech when that speech contributes to the oppression of communities whose lives and liberty the ACLU strives to safeguard? A growing number of civil libertarians in Donald Trump’s America have concluded that it does not. And as widespread pushback over the NRA brief proves, the ACLU may soon abandon its adherence to formal neutrality—and adopt a vision of liberty that openly favors the oppressed over the oppressors.