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Columns

New York State Can’t Be Allowed to Stifle NRA’s Political Speech

August 26, 2018 - 11:30am

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.

New York state flag
New York state flag

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.

David Cole is the legal director of the American Civil Liberties Union.

Comments

This is no different than the tactics that the Republicans have been using to reduce or to prevent legal abortion over the past 45 years. And, if a bank or an insurance company prefers not to deal with the NRA, it's their prerogative. More power to Cuomo and his state government. In the meantime, let the courts decide.

NY does not like the NRA, Wells Fargo does not like medical marijuana. What's wrong with these people? Just because you don't agree with something does not mean you deny them the opportunity to do business or be heard...unless of course your name is Trump, then you scream, lock them up, throw them out, "fake news", "you're fired", withdraw their security clearance, etc., etc., etc.

My Mother (first generation Italian American), used to describe the entire "Cuomo clan" as Italy's "gafune contribution to NY example" of 'social climbing' stupidity (even the Kennedy family rejected, and then shunned, Andrew; who is now "taking apart" NY, as "Moonbeam Brown is also doing to California).

WHAT DOES NEW YORK KNOW, THEY ARE A COMMUNIST STATE BY THE WAY, AND THEY ARE TURNING THEMSELVES INTO A CESSPOOL AND GHETTO. THEY HAVE NO SENSE AS TO ELECT OR PUT IN OFFICE IN THE FIRST DAMNED PLACE. AT ONE TIME THEY USE TO BE KING OF THE HILL, AND NOW THEY ARE NOTHING BUT A TRASH CAN. THE BIG APPLE HAS DECAYED FROM WITHIN, NEEDLESS TO SAY THEY SUPPORT EVERYTHING THAT IS IMMORAL. WHEN HAVE YOU EVER HEARD ANYONE FROM NEW YORK MENTION THE TEN COMMANDMENTS??? JUST BY WHO THEY ELECT THEY HAVE SOLD THEIR SOULS TO THE DEVIL. I KNOW NOTHING ABOUT GUNS, NOR AM I A SUPPORTER OF THE NRA; ALTHOUGH, I DO BELIEVE A PERSON WITH CREDENTIALS SHOULD BE ALLOWED TO HAVE A CARRY PERMIT. I AM NOT A SUPPORTER OF ANY ORGANIZATIONS MENTIONED, BUT WHO IN THE HELL IS NEW YORK QUALIFIED TO DO ANYTHING OR BE ANYTHING!!!

Who really gives a rat's a$$ what Gov. Cuomo thinks... he's not "King of the Mountain". The ACLU should support ALL of the constitution and amendments... INCLUDING Amendment 2!

NYS has no right to single out the NRA than the Feds do Planned Parenthood. Both are look lawful organizations. I long ago renounced being an NRA member because of their positions. But I will defend their right to have those positions. Gov. Cuomo should pay more attention to the Constitution or he is no better than his fellow New Yorker, Pres. Trump.

Remember the ACLU, next time civil rights need defending. And contribute. Even the NRA .

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