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

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.

Drew G

Typical NY/NJ thuggery. These officials are no better than the Italian "Mob" they try to bring down, in fact, they're worse. Any Democrat who thinks this is good, just imagine you're outrage if a Conservative Governor pushed this type of regulatory actions against "Planned Parenthood" as the writer mentions. Free speech is one of the greatest attributes of this country, whether you agree or disagree with the particular topic, it doesn't matter, and that's what's so wonderful about America. While I despise "Nazi" or white nationalists, they have the right in America to create the garbage they peddle, and it cannot be infringed on. You either believe in "free speech" for all, or none. There's no in between. The NY Governor is acting like a dictator and that doesn't fly in this country. We should all be behind the NRA in this particular case, regardless of whether you are a supporter or not.

Mamacita

Support of the rights of those with whom you disagree on a fundamental level is the hallmark of democracy. I ran across this brief while researching a paper, and that fact that the ACLU, which has a position against the individual right to keep and bear arms, would nonetheless support the NRA's civil liberties makes me inclined to actually send in a donation!

Anonymous

So where were you when major banking institutions banned us from transferring money to support wikileaks?

Reid

The ACLU may have a point that the NRA is being treated unfairly, but the NRA has plenty of financial backers. Using ANY resources of the ACLU to support the NRA turns my stomach and I will never send the ACLU another penny. There are dozens of righteous, socially beneficial groups who are suffering persecution many times greater than the NRA, and the ACLU could help them. But it doesn't because it loves the publicity that comes with supporting causes its supporters don't like. (Such as the Nazis in Illinois and Citizens United, BOTH OF WHICH THE ACLU supported with funds that came from its supporters.

cincinnati_joe

There is NO reason the ACLU needs to ride to the defence of the NRA in this bogus lawsuit. Get the facts straight and refuse to shill for these reactionary fraudsters.

Skip

The ACLU is 100% correct. Politics is scurrilous and Gov. Coumo's deliberate attack on the NRA is undeniable evidence of that. The reasonable person should ask, as the ACLU brief noted, would a lawsuit such as this only be the first such attack and would it only be limited to the NRA. Could such a strategy be used to go after AARP? Or how about MADD? Might a strategy such as this be utilized to go after something even larger? Maybe an amendment itself. The gov't in it's quest to undermine the 2nd Amendment will stop at nothing. It is only logical therefore to go after the NRA as a staunch defender of that right. And unfortunately the gov't will stop at nothing. No legal maneuver no matter how arcane, expensive, or bold is beyond considering in the fight to deny America's 2nd Amendment right.

Ed Grimes

New York is a Gestapo state headed by a fascist scum-bag named Andrew Cuomo. Thanks to the ACLU for helping to rein in this dangerous fool.

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