I am a long-standing member of the ACLU. After the election of Donald Trump, the membership in this group more than tripled. I ran into the then-director of the Ohio ACLU and she wryly told me that while this surge in membership was welcome, there would come a time when the ACLU would take a stand on some issue that would make many of these new members realize that the ACLU was not an arm of the Democratic party and they would react angrily.
Mark Joseph Stern writes that another such moment has arrived as the ACLU has come to the defense of the NRA against the actions of New York governor Andrew Cuomo.
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.”
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.
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 condemnedfor 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 statementdenouncing his organization’s involvement.
The ACLU is not a stranger to these controversies. People with long memories will remember the anger it experienced when it defended the rights of Nazis to march in Skokie, Illinois back in 1977. These decisions involving civil liberties and free speech are never easy and the issue of what kind of speech is constitutionally protected is always a matter of contention.
It is good to bear in mind that supporting the suppression of the civil liberties of those we disagree with is a dangerous thing because history shows that the people whose rights are most endangered are the weak and powerless.