David Cole Said It Would Be Like This: The ACLU's Smart Move in Representing the NRA in NRA v. Vullo

The right would likewise be smart in protecting speech on the left today.

Back in 2023, the U.S. Supreme Court agreed to hear NRA v. Vullo, where the National Rifle Association alleged that New York government officials violated the First Amendment by pressuring financial intermediaries to cut off or reduce their business ties to the NRA. At that point, the ACLU and its then-National Legal Director David Cole agreed to represent the NRA before the Supreme Court; indeed, Cole argued the case (extremely effectively, I thought).

This decision was controversial within the ACLU; indeed, the New York affiliate of the ACLU (the NYCLU) put out a public statement "strongly disagree[ing]" with the ACLU's decision to represent the NRA. The ACLU of New Mexico likewise dissented. But the ACLU leadership went ahead with the representation, presenting what I thought was a powerful Left-Right coalition before the Court.

And I take it that the ACLU's rationale wasn't just that the NRA deserved to have its rights vindicated; I assume that they also recognized that what New York was doing to a conservative speaker, conservative states (or a conservative federal government) could do to liberal speakers. First Amendment precedents protecting (or restricting) speakers on the left have long been later used to protect (or restrict) speakers on the right, and vice versa. For an explicit statement by Cole along these lines in a different NRA case brought by the New York AG, see here: "If the New York attorney general can do this to the NRA, why couldn't the attorney general of a red state take similar action against the ACLU, the AFL-CIO, Common Cause, or Everytown for Gun Safety?"

Boy, the ACLU sure called that one. NRA v. Vullo is now a staple of arguments against similarly coercive actions by the Trump Administration. It's being talked about now with regard to the Kimmel show suspension, but it has also been relied on by courts in  a challenge to the cancellation of federal grants to Harvard, a challenge to the Department of Education's actions related to DEI programs, challenges to the sanctions imposed by the Administration on various law firms, and more. And of course conservative speakers will be able to take advantage of it as well in future cases, too.

It is trite, but it is true: "[T]he freedoms … guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish." Wise people, left and right, have long recognized this. The national ACLU recognized it in NRA v. Vullo. I hope people on the right likewise recognize it today.

Comments

[loki13]

Speaking of pressuring groups ... just a reminder of exactly how the Kimmel controversy played out.

1. Kimmel is a notable critic of Trump. Trump has previously attacked him and called for him to be fired.

2. In the background, America's largest local TV company, Nexstar, was trying to a $6 billion merger with a rival (Tegna).

3. This merger is, um, not exactly anti-trust friendly. In fact, it would require the FCC to re-write the ownership rules currently in place.

4. Trump hatchet man Carr, chairman of the FCC, makes a statement attacking Kimmel. Carr specifically states that local stations have a lot of power over ABC, can choose to carry ABC programming, and "It's time for them to step up."

5. Immediately after that, Nexstar says that they will preempt Kimmel, forcing ABC to pull the show.

It's almost like these things are connected. Pay to play. Over and over and over again. Normally, corruption like this is at least at little less obvious.

Unless and until it sinks in with not just the rest of us, but actual Trump supporters that Trump is the swamp ... it's not going to change.

[Life of Brian]

Nexstar says that they will preempt Kimmel, forcing ABC to pull the show

That's a pretty creative definition of "forcing" given that Nexstar only owns about 10% of ABC affiliate stations.

Sinclair -- which to my understanding was the first affiliate to make the call to drop Kimmel -- owns about 50% more stations. But I'm guessing there weren't any facts out there about Sinclair that could readily be frothed up into a conspiracy theory.

[not guilty]

Is Life of Brian just now realizing how casually other commenters on this blog misuse "force," "forced" and "forcing"? Butter my butt and call me a biscuit! A blind hog does occasionally find an acorn.

I've been kvetching about that for years.

[Stupid Government Tricks]

Did Biden supporters recognize that Biden was their swamp? No.

It won't change until government shrinks. It simply meddles too much in daily life for anyone to play nice and by the rules, because the rules change too much too often to be honored even in the breach.

[JoeFromtheBronx]

Yes, the ACLU has traditionally defended all types of views.

Eleanor Holmes Norton (now the delegate to Washington D.C.) worked on many First Amendment cases that were litigated in the courts in the 1960s. She argued Carroll v. Town of Princess Anne defending a white supremacist group.

In 1965, she became the assistant legal director of the American Civil Liberties Union, a position she held until 1970.

[M L]

So true. Take it a few steps back further. Leftist icon FDR creates the FCC.

Now today, a leftist icon was taken off the air, by an unconstitutional threat from an unconstitutional entity created by the unconstitutional actions of leftist Democrats 90 years ago. Now that's irony.

[not guilty]

Professor Volokh writes:

It is trite, but it is true: "[T]he freedoms … guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish." Wise people, left and right, have long recognized this. The national ACLU recognized it in NRA v. Vullo. I hope people on the right likewise recognize it today.

If ever there was a vain hope regarding MAGAts!