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

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.

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