Civil liberties clash on NRA reflects wider rifts
Donna Lieberman, left, executive director of the NYCLU, and David Cole, the ACLU's legal director. Credit: Getty Images for NYCLU / Eugene Gologursky, WireImage / Jim Spellman
Controversies over free expression are getting more complicated and divisive by the day. One fresh and unusual example: The New York Civil Liberties Union is distancing itself from the role of the affiliated American Civil Liberties Union — which is defending in court the free-speech rights of none other than the National Rifle Association.
Because of its regional base, NYCLU has a history and focus somewhat distinct from that of ACLU. In the 1990’s especially, the organization weighed in on numerous unique New York City issues affecting political demonstrations, off-duty speech by city officials, and art displays. More recently the group advocates for state bail reform and the rights of those in Rikers Island jails.
As close readers of the news may know, the big headline issues for the ACLU are more nationally based, spanning capital punishment, reproductive rights, and transgender freedoms among other topics.
The NRA case in question comes out of New York. The NRA sued over actions taken by the State Department of Financial Services in 2018 during the Cuomo administration. After the Parkland school massacre in Florida, DFS Superintendent Maria Vullo issued statements and “guidance” encouraging banks and insurers to review and perhaps drop their affiliations with gun promotion organizations like the NRA, citing “reputational risks” for those businesses.
Was the administration coercing companies in violation of the First Amendment, thus hindering the NRA’s right to advocate? The plaintiffs say yes, but so far, the federal courts haven’t bought it. Now the case is headed to the U.S. Supreme Court.
Notably, the ACLU supported the NRA’s free-speech claim from the start, stating five years ago: “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 … Political advocacy organizations like the NRA (or the ACLU or Planned Parenthood) need basic business services, like insurance and banking, to operate.” David Cole, the national organization's legal director, has come front-and-center in the cause.
But the NYCLU’s executive director, Donna Lieberman, last week issued what might be called a rare “dissent” in the court of public opinion. “The NYCLU strongly disagrees with the ACLU’s decision to represent and therefore provide direct support to the NRA,” she said. “We will not be participating in this case even though it comes out of New York.”
Lieberman argued that the First Amendment issue in the case is “well established” and, as a powerful organization with sophisticated legal counsel, the NRA doesn’t need ACLU’s participation.
ACLU positions have clashed with the NRA's in the past. New York’s governance regarding guns was the backdrop for the Supreme Court’s dramatic expansion of Second Amendment rights in its 2022 ruling in the landmark case of New York State Rifle & Pistol Association v. Bruen. As a result, the state’s revised pistol licensing is still being hashed out in federal litigation. At that time, both the ACLU and NYCLU denounced the ruling as having “radically undermined states’ ability to maintain safety.”
These days, in certain libertarian circles, the politics favored by some has replaced constitutional principle for all. Consider the ongoing storm over subjective political correctness and wokeness-of-speech on college campuses.
Maybe that will change — if our glaring political polarization gives way to a saner consensus.
Columnist Dan Janison's opinions are his own.
Dan Janison is a member of the Newsday editorial board.
