Can David Cole Save The ACLU?

Like Walter Olson, I had been highly critical of the “new” ACLU which had forsaken the defense of civil liberties for the appeal to social justice. So when Wally posted that the ACLU had filed an amicus brief in support of the NRA after being targeted for destruction by Governor Andrew Cuomo, I was shocked.

After the Nazis and the KKK, the National Rifle Association was perhaps the group most hated by the ACLU’s fan base. And having reaped monumental financial rewards from tapping into the emotions of the newly woke, the ACLU was not only fabulously wealthy but empowered to limit its largesse to only those issues and parties that were worthy of its patron’s tears.

Yet, there is was, the ACLU coming out in support of its mortal enemy because Cuomo was using his regulatory apparatus to silence an organization because he hated its message. This was so . . . principled. Following Wally, I was inclined to applaud the ACLU and, maybe, concede that it wasn’t dead yet. David Cole, the ACLU’s legal director, remembered why it was there and would not compromise civil rights for the whims of donors.

And then Mark Joseph Stern at Slate reminded me that Cole is just one person. An important person at the ACLU, but alone.

“If the state can penalize gun promotion advocacy groups by threatening their service providers,” Cole continued, “it can do the same to other groups”—including Black Lives Matter. Thus, the ACLU had decided to urge the courts to “carefully scrutinize” whether Cuomo has tried to unconstitutionally punish the NRA based on “hostility to [its] viewpoint.”

Cole explained, in a staff email, why he chose to help the enemy. That he felt compelled to explain at all is remarkable. For the ACLU, this was akin to sending out an email asserting it was Wednesday, and relying upon an analogy to justify it. The action was once at the core of ACLU’s mission and its staff and supporters would have taken perverse pride in defending positions which it found repugnant. No more.

Within hours, the organizationwide listserv had lit up. Staffers at both the national office and state affiliates wrote back to register their frustration with Cole’s decision. The ACLU of New York sent out a statement on Monday explaining why it had declined to support the national office’s position.

The argument against the ACLU supporting the NRA was threefold, first that Cuomo’s attack on the NRA wasn’t really a First Amendment issue, as there were legitimate questions about regulating its insurance product, Carry Guard. This was a nonsensical argument, as Cuomo was quite clear that he was using insurance and banking regulations as a wedge to take down the hated NRA.

The second argument was that the NRA had sufficient resources, and the ACLU should save its “limited resources” for the more deserving. This, too, was nonsensical, as this was merely an amicus brief, not representation of the NRA, and the ACLU had tons of cash in the bank. This was no more significant to the ACLU’s cashflow than buying a donuts for the staff meeting.

The third argument, however, was the real beef.

A number of staffers made this final point in starker terms, directly criticizing Cole’s analogy between BLM and the NRA. One litigator at a state affiliate wrote to the listserv: “While I do respect the reasons others posit for taking this case on, I don’t respect the continued refusal of privileged decision-makers to recognize how deeply problematic it is to use BLM as a shield for actions that support white supremacy, particularly [from] an organization that enjoys the immense level of privilege we do.”

The use of Black Lives Matter for the analogy might not have been the best choice of analogy, but for the fact that it was a cause dear to the hearts of most staffers. Then again, the need for any analogy at all was like Cole using small words to explain principle to children. And the reaction demonstrated that his words weren’t small enough.

Another attorney at a state affiliate also argued that BLM was being used as a “shield” and added, “Comparing BLM to the NRA is a false equivalence. Show me one BLM rally/march/protest where a bunch of people of color are allowed to run around with guns hoisted on their hips.” Cole told me he did not mean to “equate the NRA and BLM” but rather to point out that “if a governor can get away with this against a well-resourced group like the NRA, then groups with fewer resources, like BLM, could also be targeted.”

There was nothing about Cole’s analogy to suggest that BLM and the NRA were equivalent, but social justice argumentation isn’t limited to substance when there is a litany of twisted irrelevant and fallacious rationalizations, such as “false equivalence,” to be pulled out and thrown back at one’s adversary. And its these warriors for social justice, not civil liberties, who now show up for work at the ACLU.

Most of the ACLU staff members I spoke with echoed Strangio’s belief that by rushing to aid the NRA, the organization had failed to learn the lessons of last year. “The events of Charlottesville prompted a long-overdue internal discussion about how to balance our First Amendment advocacy with our work advancing other constitutional principles, like equal protection, and serving coalitions working with marginalized communities,” one ACLU attorney told me. “In that context, this decision feels like a step backward.” A state affiliate attorney told me that “our choices reflect little understanding of how power and privilege work in the real world.”

David Cole’s my contemporary, steeped in the old school understanding that protecting constitutional rights is its own virtue. The staff shares no such view, instead having been indoctrinated to the “power and privilege” theory which enables one to rationalize why rights are absolute for some and undeserving for others, based upon who can come up with the saddest story of marginalization and victimhood.

“In the real world,” an ACLU litigator wrote on the listserv on Friday, “where our black allies live all the time, the single thing that is most impeding the speech of vulnerable communities is the fear of violence and targeting … every single day, everywhere.” The NRA has contributed to that horrific reality, helping to create an epidemic of gun violence that has disproportionately affected communities of color.

David Cole deserves appreciation for taking a principled stand in support of constitutional right that needs no analogy to explain. But he’s a dinosaur in the eyes of his staff, who are waiting for, maybe hoping for, his extinction so they can resume their march toward progress of supporting only those who they feel are worthy of their efforts and relishing the destruction their enemy’s constitutional rights. Cole may not be the last person at the ACLU to stand for principle, but principle is certainly marginalized at the ACLU.

Can David Cole Save The ACLU? curated from Simple Justice