NRA to Files Amicus Brief in ACLU Lawsuit

Reuters is reporting that NRA is joining an ACLU suit against the Obama Administration over NSA surveillance, and being welcomed by the ACLU. You can find NRA’s amicus brief here. From the brief:

The mass surveillance program could allow identification of NRA members, supporters, potential members, and other persons with whom the NRA communicates, potentially chilling their willingness to communicate with the NRA.

Perhaps they know our people a bit too well.

The Supreme Court made clear in NAACP that it had long “recognized the vital relationship between freedom to associate and privacy in one’s associations.” NAACP, 357 U.S. at 462. Because of that relationship, the “compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association” as the regulation of lobbying activities or the discriminatory taxation of certain newspapers. Id. Compulsory disclosure is unconstitutional where groups show that disclosure subjects their members to “manifestations of public hostility,” which would “affect adversely the ability of [groups and their] members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate,” because the intrusion on privacy “may induce members to withdraw … and dissuade.

We’ve worked enough gun shows to know there’s a lot of guys who don’t do anything public as a gun owner for fear of identifying themselves as such and ending up on “a list.” That attitude tends to annoy me, but it’s out there, and is not as rare as I wish it were.

Admittedly, some post-NAACP cases have been more deferential to government, focusing on the language in NAACP noting members’ exposure “to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility” and requiring evidence of such harm to strike down disclosure regimes. See, e.g., McIntyre v. Ohio, 514 U.S. 334, 379 (1995); Buckley v. Valeo, 424 U.S. 1, 69 (1976).

But the NRA and its members have certainly been subjected to “public hostility,” from the highest levels of government as well as from the media and other prominent elements of society. Individuals who are concerned about government monitoring of their communications might well avoid seeking information from a group that has been accused by the President of the United States of “spreading untruths,” and by the President’s press secretary of “repugnant and cowardly” advertising. See Obama’s Remarks After Senate Gun Votes, The New York Times, April 17, 2013; Michael D. Shear, White House Denounces Web Video by N.R.A., The New York Times, January 16, 2013. They might also be concerned about associating with a group of which the Vice-President of the National Education Association has said, “[t]hese guys are going to hell,” or which a journalism professor has accused of committing “treason … worthy of the firing squad.”

At root, I’m wondering if NRA’s concern is the Obama Administration using what they find to punish political enemies (namely NRA, it’s members and its employees). Before, I would have said that was crazy talk, but these days, quite sadly, it is not.

Each of these programs standing on its own could provide the government with an extraordinary amount of information about those who communicate with the NRA for any reason. Under the programs revealed so far, the government may already possess information about everyone who has called the NRA by phone, e-mailed the NRA, or visited the NRA’s website. Conversely, the same programs would also gather information on potential members or donors contacted by phone or e-mail for NRA membership recruitment or fundraising programs, or for legislative or political reasons such as the transmission of legislative alerts or get-out-the-vote messages. The programs could also reveal at least the outlines of research and advocacy activities undertaken by NRA staff members, such as the websites visited in the course of legislative analysis or the identities of legislative staff members contacted by e-mail. At the outer extreme, a location tracking program could reveal the identity of every mobile phone user who visits the NRA’s headquarters—whether for a political or legislative event, or simply to use the NRA’s shooting range or visit its National Firearms Museum. Similarly, location-tracking surveillance could reveal the travels of NRA staff members to engage in legislative meetings, political events, or other activities protected by the First Amendment. Any of these forms of tracking could easily reduce individuals’ desire to interact with the NRA.

Personally, my reaction would be the opposite. If I knew Barry was watching, I’d be pleased to head down to NRA HQ and walk out a nice “F you” pattern. But this is by far not the only concern. The whole brief is worth reading, if you’re interested. The brief also notes, “The government’s interpretation of Section 215 would nullify statutory protections against centralization of gun ownership records.” Read the whole thing.