The ACLU has a new client: the National Rifle Association

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

But when the Supreme Court agreed to hear the NRA’s free-speech challenge to 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 NRA could be considered the 800-pound gorilla of the Second Amendment,” said attorney William A. Brewer III. “Clearly, the ACLU is the 800-pound gorilla on the First Amendment.”

David Cole, the civil liberties group’s national legal director, said the request was in one sense a tough ask.

“It’s never easy to defend those you disagree with,” he said. “But the ACLU has long advocated 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 been the subject of occasional criticism that in recent years it has become less attentive to free speech principles and more committed to values ​​rooted in equality. He dismissed the criticism, although he acknowledged that the decision to represent the NRA would not be universally praised.

“It’s going to be controversial, inside and outside the ACLU,” 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 go to any lengths, the fact that the ACLU is here defending the NRA only underscores the importance of the principle of free speech at stake.”

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

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

The central issue in National Rifle Association v. Vullo, no. 22-842, is whether Maria Vullo, the former superintendent of the New York State Department of Financial Services, used governmental power in a manner 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. 17 people died in the rampage.

A unanimous three-judge panel of the US Court of Appeals for the Second Circuit in New York, ruled against the NRA. Referee Denny Chinwriting for the panel, he acknowledged that government officials may not “use their regulatory powers to compel individuals or entities to refrain from engaging in protected speech.”

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

Ms. Vullo’s actions were on the right side of the constitutional line, Judge Chin wrote. The key documents, he said, “were written in a flat, non-threatening tone and used words intended to reassure, not intimidate.”

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

U its petition requesting a review by the Supreme CourtThe NRA, represented by Mr. Brewer’s firm and Eugene Volokh, a prominent First Amendment scholar, said the appeals court’s ruling could have far-reaching consequences.

“The Second Circuit’s opinion below gives state officials free rein to financially blacklist their political opponents — from gun rights groups to abortion rights groups to environmental groups and beyond,” the petition states.

In responseMs. Vullo’s lawyers wrote that “the ability to opine on important public policy issues is vital to the work of many government officials.”

The filing added that Ms. Vullo “did not violate the First Amendment by expressing her views regarding a national tragedy and encouraging regulated entities to review their relationships with gun promotion organizations.”

Neal K. Katyal, Ms. Vullo’s lawyer, declined to comment on the ACLU’s entry into the case.

Mr. Cole, who will defend the NRA when the justices hear the case, likely in March, said these are principles that apply to all kinds of groups.

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

He added that federal officials could also abuse their authority under the appeals court’s ruling. “Donald Trump has had nothing against his desire to hit back at his opponents,” Mr Cole said. “This would be the book for him to do just that.”

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