New York State Can’t Be Allowed to Stifle the NRA’s Political Speech

It’s no secret that New York Gov. Andrew Cuomo is no fan of the National Rifle Association. A mailer his campaign sent to New York voters this week proclaims, in bold letters: “If the NRA goes bankrupt, I will remember them in my thoughts and prayers.”

There’s nothing wrong with the governor singling out a political adversary for criticism, or even mockery. That’s just politics, and the NRA itself is no stranger to hardball tactics.

But in a lawsuit the NRA filed against Cuomo this spring, the organization contends that he did more than criticize it. The NRA alleges that Cuomo and top members of his administration abused their regulatory authority over financial institutions to threaten New York banks and insurers that associate with the NRA or other “gun promotion” groups, and that those threats have jeopardized the NRA’s access to basic insurance and banking services in New York.

In the ACLU’s view, 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. Because we believe the governor’s actions, as alleged, threaten the First Amendment rights of all advocacy organizations, the ACLU on Friday filed a friend-of-the-court brief supporting the NRA’s right to have its day in court.

The state has asked the court to dismiss the case without even permitting discovery into the administration’s actions. Our brief supports the NRA’s right to discovery on its First Amendment claims. To be clear, the ACLU does not oppose reasonable restrictions on guns (you can read more about that here). Our position in this case has nothing to do with our opinions on the NRA’s policies — it’s about the First Amendment rights of all organizations to engage in political advocacy without fear that the state will use its regulatory authority to penalize them for doing so.

Political advocacy organizations like the NRA (or the ACLU or Planned Parenthood) need basic business services, like insurance and banking, to operate. The NRA says that the state, using its regulatory powers over those industries, is threatening financial companies that do business with the NRA.

The NRA points to both public and non-public actions taken by the Cuomo administration to penalize it for its views. State officials issued press releases and sent threatening letters to banks and insurance companies, and also allegedly communicated “backchannel threats” to companies with ties to the NRA, warning that they would face regulatory action if they failed to end their relationships with the organization.

If the NRA’s charges are true, the state’s actions would clearly violate the First Amendment. Public officials are, of course, free to criticize groups with which they disagree. But they cannot use their regulatory authority to penalize advocacy groups by threatening companies that do business with those groups. And here the state has admitted, in its own words, that it focused on the NRA and other groups not because of any illegal conduct, but because they engage in “gun promotion” — in other words, because they advocate a lawful activity.

Substitute Planned Parenthood or the Communist Party for the NRA, and the point is clear. If Cuomo can do this to the NRA, then conservative governors could have their financial regulators threaten banks and financial institutions that do business with any other group whose political views the governor opposes. The First Amendment bars state officials from using their regulatory power to penalize groups merely because they promote disapproved ideas.

In April 2018, the New York State Department of Financial Services sent “guidance letters” to banks and insurance companies. It wrote, “The 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… 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.”

Two weeks later, the department announced consent decrees with two insurers, imposing millions of dollars in fines and barring them from selling consumer insurance products that are endorsed by the NRA. Days later, the NRA says that its corporate insurance carrier severed ties and said it would not provide the NRA with insurance at any price.

The NRA says that it has since had serious difficulty replacing its corporate insurance because nearly every potential replacement was afraid of being investigated by the state. The NRA also says that numerous banks have withdrawn bids to provide basic financial services because the April letters from the state indicated that any association with the NRA could expose them to regulatory retaliation.

The state argues that even if all of the NRA’s claims are true, the First Amendment doesn’t apply. We disagree, and as we note in our brief, dismissing the NRA case:

would set a dangerous precedent for advocacy groups across the political spectrum. Public officials would have a readymade playbook for abusing their regulatory power to harm disfavored advocacy groups without triggering judicial scrutiny.

There are acceptable measures that the state can take to curb gun violence. But using its extensive financial regulatory authority to penalize advocacy groups because they “promote” guns isn’t one of them.

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Wake

Good to hear. the idea that a government entity could drive out businesses or nonprofits just because it disagrees with their (legal) views is horrifying. And governeds have and will attempt to restrict medical and abortion services using similar means

Cuomo is a power drunk ass, and decent people should be ashamed to be represented by him

As an aside, the ACLU’s continued disdain for protecting the 2nd amendment is disappointing. Reading the link in this article, it seems the ACLU has no problems with restrictions on law abiding citizens having reliable guns, but thinks more felons should have access to firearms. Jeebus.

Anonymous

This is absurd, the reason the NRA is being accussed is because through those financial institutions, the NRA provided a sort of gun insurance for intentionally firing a gun and then paying for any lawsuit against them for that by the NRA. NYS law prohibits insurance of intentional acts.

Dr. Timothy Leary

They never tell the whole story here. It is always a one sided account of any issue. This is why I don't feel remorse for making inane comments.

Gw

I think you’re confused. It was used for defense in legal, defensive, justified, use of force. Not “paying for ANY lawsuit”, or “intentionally firing a gun”......

Anonymous

You mean to provide defense services when one uses a weapon in self-defense then otherwise gets bankrupted clearing their name?
If you pull out your gun and pop some random stranger just because they gave you a funny look, don't expect CCW insurance to help.

Kevin

I am not always a fan of the ACLU but thank you for stepping up and speaking out, even though it may cause you disfavor among certain elements of the progressive left.

New York State has degenerated into a thuggish banana republic. I lived there for two years and this was very well known - don't rock the boat with certain public officials or you may find yourself the victim of inspections, audits, permit denials, etc. etc.

Jeff C

Thank you for taking an objective stand for the 1st amendment rights of all Americans, even with those with whom you presumably disagree. Stances like this go a long way toward preserving, or in the thoughts of many, re-capturing the ethical and objective high-ground. I'm sure you're aware of the general perception of the ACLU as a partisan organization, and I have been as guilty as any of feeling this way, but this has gone a long way toward restoring my respect. And no, my respect is not predicated on supporting organizations that I like, but all equally under the law. Once again, my thanks for your advocacy of the NRA in the NYS case.

Anonymous

Jeff C,

Don't let them fool you, the aclu has remained fairly unbiased, but that has ended in the last year or so, since which time they realized leftist extremists can make them rich so they abandoned the unbiased agenda and jumped feet first into leftist politics. In this case, they fear this case could set a precident that could be used against them, which is the only reason they are speaking up, they want to insure that nothing interferes with their move away from supporting peoples rights and into politics, since again there is tons of money flowing in politics, and they've decided they want a chunk of it.

I am right of center politically, but have long supported the aclu, but no more. Ever Alan Dershowitz, long one of the biggest and most famous supporters, has voiced his displeaure in the fact that the aclu has strayed far from what it was, which is the likely the first time he has ever made a negative comment on them, which says a lot.

Anonymous

If there are 'reasonable' restrictions on guns then obviously there are 'reasonable' restrictions on speech. ACLU is hypocritical.

NRA Fan

Wow, I am impressed with the ACLU and your actions with protecting the first and second amendments is appreciated!

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