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

It would be good if the ACLU would recognize the civil liberty of self-defense. If all they can stomach is to defend the advocacy of self-defense, then actual self-defense hangs by a thin thread. Nevertheless, the ACLU is absolutely correct that a government that can pressure private businesses to stop doing business with certain other, legal, private businesses, or with individuals, because the State does not approve of the message, it is de facto censorship. I hope the ACLU wins this one. If they don't, liberal and conservative politicians will use that technique to push their respective anti-freedom agenda.

Leslie McErlean

Boo hoO for the NRA. A bunch of greedy bastards. Save your time and money for doing real good.

Anonymous

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Inkere

I commend the ACLU for staying the course of their convictions and premise for existing by fighting for protection under the law. even if for an enity with which they may disagree. If only our politicians could learn from example!!

Anonymous

Thank you, ACLU, for protecting the First Amendment and the rule of law.

Anonymous

Bravo to ACLU for standing up for the First Amendment.

Anonymous

Please remember that the NRA is not just a board of directors but a group of law abiding citizens not unlike other citizen groups that take to the polls. Democrats and Republicans alike.

Penrod

There are few actions by state officials more dangerous than such abuses of regulatory power. Dangerous to the politically opposed, and also dangerous to the legitimacy of government regulation.

If this story is accurate, and it appears to be, Andrew Cuomo et al should get fair trials for abuse of power, followed by lengthy prison sentences. Cuomo should be stripped of his personal wealth and see it turned over to the NRA. Abusing and discrediting legitimate regulation should have extremely serious personal consequences.

43North

Cuomo will claim that in this instance, he and never Richard Nixon, would be exempt from judicial oversight, due to his high office.
Democratic Governor of New York, is the supreme office of the land. Ask anyone living under Boss Tweed and Tammany Hall.
Laws pfft. Constitution as-if. Personal power and the Democratic Machine, is all that matters.

You may have noticed Penrod, that most of Andy’s Lieutenants have all found prison sentences.
Odd that his political friends find such joy in the malafortuna of Trump & Cie, yet fail to read, or comprehend the gravity of the headlines regarding the convictions of NYS Governmental Officials and “fixers”.

Thomas D Vitti

New York politicians are out of their minds they want us to be a sanctuary State and not be able to protect ourselves shouldn't it be up to the voters of the state to vote on Sanctuary States since we are paying for the benefits maybe the state should get insurance on illegal immigrants it shouldn't be up to the politicians to do what they want should be up to the voters

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