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Tuesday, August 28, 2018

More on the ACLU's conflicting principles

The internal disputes over the ACLU's First Amendment activities is back, this time over the National Office's amicus brief in the NRA lawsuit challenging New York's practice of pressuring insurance companies, banks, and other regulated businesses not to do business with the organization. This Slate story describes some of the internal conversations responding to Legal Director David Cole's explanation for writing the brief, including a memorandum in response by three people in the New York affiliate. That memo made three points--this is not a novel case or a straight-forward free-speech issue; the NRA has the resources to litigate and the ACLU should consider whether to spend its limited resources helping litigants with "enormous resources at their disposal" as opposed to less-resourced groups, such as Black Lives Matter; and representing the NRA has negative effects on the ACLU's representation with "important allies." Several people objected to the National Office's argument that New York's tactics could be used against groups such as BLM, rejecting the use of BLM as a "shield" to justify representing groups that are causing the very problems, such as gun violence, in the African-American communities that BLM is trying to address. The article closes by suggesting that such disputes may cause the ACLU to "soon abandon its adherence to formal neutrality—and adopt a vision of liberty that openly favors the oppressed over the oppressors."

Regardless of the merits of whether BLM might be targeted, it is beside the point in this brief. A more salient and ongoing example, which the brief included, is states targeting Planned Parenthood, which stands for some in the same position the NRA does for others.

As to the article's final point, that vision of First Amendment liberty is no vision at all. A Muslim should not have less religious liberty than a Christian, nor should government be able to disadvantage powerful organizations but not powerless organizations in retaliation for their speech. And an organization committed to civil liberty should not approach liberty questions that way.

The resources argument (putting aside whether it has any merit) strikes me as inaposite in this case. The ACLU is not representing the NRA in this case, so any expenditure of ACLU resources does not relieve the NRA of the burden to spend money on its own lawyers to make its own arguments. The benefit of the ACLU's brief, on which it did expend some of its limited resources, is to the NRA's legal position, not to its wallet. An argument that the ACLU not only should not represent well-resourced parties* but should not provide amicus support for well-resourced parties seems over-inclusive, tying the merits of a party's constitutional position to the money in its bank account.

[*] This argument remains strange for another reason--representation makes the ACLU eligible to recover attorney's fees if it prevails. So it should recover at least some of the resources.

Posted by Howard Wasserman on August 28, 2018 at 07:24 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


"As to the article's final point, that vision of First Amendment liberty is no vision at all."

Technical correction. It is a vision, just not a vision that places the 1A as a high priority. What befuddles me is the "oppressed" and "oppressors" language. That is so vague it could mean anything. Whatever the merits and demerits of the 1A as it is presently worded it does have the salutatory effect of providing some limiting principle, even if that limit is vast. "Oppression" has no limits whatsoever.

Posted by: James | Aug 28, 2018 3:53:13 PM

Just he who wants , can reach the guidance letters of the governor and the regulator , here




Posted by: El roam | Aug 28, 2018 12:21:21 PM

Thanks for drawing out attention to this important issue . It is really shocking to read it . Typically , such apparent official conduct , merits literally criminal investigation . In other states in the world , it does amount to “ breach of trust ” by an official or public servant . I have searched in the penal cod of NY , and here I quote :

Article 195 - NY Penal Law
S 195.00 Official misconduct.

A public servant is guilty of official misconduct when, with intent to
obtain a benefit or deprive another person of a benefit:

1. He commits an act relating to his office but constituting an
unauthorized exercise of his official functions, knowing that such act
is unauthorized;

End of quotation :

Such unlawful conduct , extends far beyond first amendment right . The issue would be maybe whether the wording “ benefit ” as cited in the above provisions , can amount or include free speech . Yet , It is simply outrageous . That regulator , has issued , letter of guidance , with no legal basis , and simply has given , explicit warnings or threats , that financial institutions , may be in troubles , if they don’t cut short , ties with the NRA . Here I qoute :

“[T]he Department encourages its insurers to continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations, if any, as well as continued assessment of compliance with their own codes of social responsibility. The Department encourages regulated institutions to review
any relationships they have with the NRA or similar gun promotion organizations, and to take prompt actions to managing these risks and promote public health and safety.

End of quotation :

As a result , they have suffered severe loses , And even , I qoute :

Lloyd’s of London announced that it would terminate all affinity insurance programs associated with the NRA, citing the DFS investigations.

So , what they need it seems , is not only amicus of such , but rather , a heavy caliber of a hell of a criminal lawyer .


Posted by: El roam | Aug 28, 2018 11:07:29 AM

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