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.

View comments (120)
Read the Terms of Use

Anonymous

Bravo! I am a NRA member and while I do not support many of the NRA's positions, I support their right to take them. I am a member for training and insurance offered by the NRA. I commend the ACLU for being able to separate issues and recognize the illegal activities of the Cuomo administration.

AWS

Thank you for standing up to tyranny! This is why the United States of America IS great, while we may disagree on many issues, we ALL want the freedoms granted to us in the constitution.

Blue state - re...

This took guts. Even though it's the right thing to do... Progressives have tried successfully to hijack political agenda. But a strong bi-partisan ACLU is good for everyone.

I'm a usual traditional conservative.. But am for the first time considering a donation to the aclu for not being biased.

Blue state - re...

This took guts. Even though it's the right thing to do... Progressives have tried successfully to hijack political agenda. But a strong bi-partisan ACLU is good for everyone.

I'm a usual traditional conservative.. But am for the first time considering a donation to the aclu for not being biased.

Anonymous

Nice to see the ACLU taking a principled stance.

Anonymous

Indeed, this is about the First Amendment and I agree with the author that Cuomo and NY State are wrong in the actions they take against the NRA. The banks and Insurers should be ashamed of themselves for giving in to the bullying by the governor. The people of New York should vote Cuomo out of office and anyone who agrees with him on this point. These are the kind of politicians we do not need.

Anonymous

In addition the people of NY should find out which banks and insurance companies took part in this action and boycott them right out of the state.

an Observer

It's good to see that the ACLU stands up for the Bill or Rights, whether they agree with the offended party or not. The NRA and its members have the same rights guaranteed by the Constitution as anyone else. For Gov. Cuomo to oppose the NRA's rights shows that he believes "the ends justify the means" when clearly, they do not. Thank you, ACLU, for being consistent in your support of the 1st Amendment. Thank you, NRA, for being consistent in support of the 2nd Amendment.

Karl L. Baldwin

Socialist and communist are attempting to over-through our democracy and the US constitution.

Anonymous

I commend the ACLU for standing up for the first amendment rights of all organizations, even if they don't agree with them otherwise!

Pages

Stay Informed