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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Rick Bentley

Good for the ACLU to step up here. For too long their definition of Civil Liberties seemed to exclude the 2nd Amendment. Keep standing up for ALL of our rights and I'll start donating again (I stopped when the 2A was conspicuously left off ACLU's efforts).

ochwill

"New York State Cannot Be Allowed To Stifle The NRA's Political Speech
Its not political speech when it causes the death and maiming of many tens of thousands of
americans every year and saddles america with a culture of fear and death. Its hare speech for profit, Well done Governor Cuomo. Tell the truth about this foul organization.

Anonymous

I guess the governor's actions were illegal, as well as "inartful".

Anonymous

Governor Cuomo is corrupt! First it's the Buffalo Billions scandal, now he wants to to take away our second amendment rights. He's a liar and a cheater.

Matthew S

Are you guys going to do anything about the Red Flag Gun Laws? These clearly infringe on the fourth and Fourteenth Amendment.

Anonymous

Now this is the ACLU I know and love. I have strong opinions about gun laws and the possession of firearms, but in my opinion the ACLU is correct here--it is nonetheless a Constitutional right to bear arms. (Now, how the Founding Fathers would have interpreted that in today's world is, of course, a subject of ongoing debate). But, nonetheless, it is there. We can't start picking and choosing which rights are "good" and which are "bad." The minute you start doing that is the moment that the very core of democracy in this great country of ours is in danger. More and more, especially with this current lunatic asylum that has become this Administration, the ONLY thing that stands between the people and Agent Orange is our precious Constitution. We need to hold is sacred now more than ever--even the parts we may not necessarily agree with. And if something particularly egregious needs to be changed due to our collective agreement, and enough people in this great country of ours agree (the 13th and 19th Amendments come to mind, for example) there are channels to do that. It's called the democratic process. You can either choose to participate in it or not.

Andrew

Shouldn't the same "reasonable restrictions" placed on #2a, intermediate scrutiny, be equally applied to rest of Bill of Rights? Why will ACLU selectively defend the constitution, not equally defending its rights? Imagine....

Who's Next Mr. ...

Clearly 'Gestapo" tactics here. Who's next Governor? The Catholic Church? Republican Party?

Anonymous

I worked under Cuomo when he was Secretary at HUD. The agency took years to recover from his “leadership”. People would see him walking down the hall and jump into an open doorway to avoid him. 1st class A-hole. He was livid when the Washington published a story about his bodyguard losing his gun in the cafeteria. I’m sure the people in the N.Y. Statehouse know what I’m talking about.

Anonymous

Honestly this restores my faith in the ACLU.

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