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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Anonymous

NRA Fan,

Don't be fooled, the only reason the did this is because the court case could set a precident which could be used against the aclu itself. The have long been opposed to the second amendment, and recently even came out and opening said, in eff ct that they will not protect the first amendment rights of those supporting the second amendment.

Additionally they have said that when protecting rights that they need to start taking into account how it effects "equity and marginalized groups" and other things extremists on the left use to justify their own racism, bigotry and hatred. Even Alan Deshowitz, perhaps the alcus most fervent and famous supporter recently admitted that the aclu is no longer the unbiased upholder of individuals rights they used to be, and coming from him it was a major condemation of their recent actions.

Anonymous

Just as we should have "reasonable restrictions on guns", can't we do the same for free speech?

Anonymous

It's always a strange feeling seeing the ACLU defend an individual/organization in court when that groups views are so radically different and hostile to the ACLU's. But that's part of what makes the ACLU an important and useful group. Heck, they've even argued on behalf of neo-Nazi and other extremist groups before, the Constitution and Amendments apply equally to everyone.

Anonymous

Well that is correct, NRA is on point.

DAN

'THE GOVERNOR OF NEW YORK STATE, IS A LIBERAL, PIECE OF S**T, DUMBASS, MORON AND NOTHING MORE NEEDS TO BE SAID ON THE TOPIC, PERIOD, END OF TOPIC'!!!!!!!!!!!!!!!!

Anonymous

Thank you for your advocacy. As Martin Niemöller's poem states:

"First they came for the socialists, and I did not speak out—
Because I was not a socialist.

Then they came for the trade unionists, and I did not speak out—
Because I was not a trade unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me."

Matthew S

Thank You guys for this. I HATE The NRA and hope that they go extinct one day (Hopefully SOON!), but if this is true this is waaaayyyy too much of an overreach, and is basically blackmailing businesses. Can we do anything about these unconstitutional Red Flag Laws?

Anonymous

Sadly, Cuomo takes after his father, NY's former gov, who felt law and ethics were things to be demand in others but that they are above such trivial concerns. Years ago NYS voters voted down a multi billion dollar bond issue, so the Gov's father, as Gov at the time sold the NYS pridon system to the NYS thruway authority, which doesn't need voter approval on bond issues. Yep, this leftist criminal saw voters didn't want even more spending and debt for the state so he basically using a bookkeeping method, that in private business would put people in prison for to saddle us with tens of billions more in debt.

Also never forget that Andy himself, along with President Clinton, are largely the cause of the sub prime mortage fiasco that when it unraveled almost destroyed our country, and much of the world. When he ran HUD during the Clinton Presidency he and the President called the heads of all the major banks that offer mortgages and told them if they didn't greatly expand their sub orime mortgage offerings that they would take federal action against the banks. Remember that the next time someone is bashing President Bush for the collapse, and of course the media "forgot" all about what those two did, so the issue was never raised and instead they just pounded Bush on it. They both knew that eventually it would blow up in the faces if the banks and those with the mortgages, but they knew they would be out of the White House by the time it did.

Basically the sub prime mortgages cooked the books to loan people money they couldn't afford to pay back, to by houses far above what they should be buying, but to make them doable the backloaded the loans, and as long as house values kept climbing things were fine, since in effect someone would borrow $500k to buy a home, but by the time the ballon payment was due, years later, the home was now worth $1.5 million, so even if they hadn't paid a penny toward the principle they still have $1million interest in the house, just due to the market climbing so then they could work out other deals, or even sell that home, payy off the bank and walk free with $1million (although most would immediately put that back into more property to do the same thing again, and why not, if ennect you could not only get several years in a very nice home for free, but you then get a big check when you moved on to the next so you were making big money with basically zero investment...... And then housing prices dipped, then plunged which of course now meant you owed $750k (just yanking a number out of the air, but basically you owed the principle plus ann the deferred interest) but now the house is only worth $400k or even $250k so even if you can sell it. You would still be massively in debt, and of course even banks, when the repossessed a home it was worth half of what they loaned on it so there was no way for them to get their money back either.

Anonymous

Cuomo is a sub human low life

Non NRA member ...

I applaud the ACLU for having the courage to stand up for the NRA under these circumstances, against a government entity knowing that the gun lobby and the individual use and purchase of firearms triggers scrutiny and debate in present US culture. This issue is as important as allowing Christianity and Satanism to be practiced without interference from government meddling and obvious attempts to suppress one ideology over another. I won't bow before Satan but I sure as hell will stand up against the State of New York with a firearm in my hand alongside an Atheist or a Satanist or anyone willing to protect all of the Bill of Rights, not in a gesture of violence but a gesture of protest. Mr. Cuomo if you don't believe in people owning firearms and want the 2nd Amendment stripped from the Bill of Rights, then do it the proper way and abolish it at the Congressional level as the Consitution allows. Please stop treading on "our" rights as a People of the United States that the Bill of Rights protects from you, Sir.

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