The official view of the American Civil Liberties Union (ACLU) remains that the Second Amendment protects a “collective right rather than an individual right”. But the organization nonetheless helps the National Rifle Association (NRA) fend off extrajudicial attempts by New York State officials to bankrupt it.
In a brief filed today in federal court, the ACLU argues that New York’s aggressive efforts to force banks and insurance companies to abandon the NRA as a customer represent a blatant violation of the First Amendment.
“Although public officials are free to express their opinions and can condemn views or groups that they consider hostile to the public welfare, they cannot abuse their regulatory authority to retaliate against individuals. disadvantaged advocacy organizations and place burdens on the ability of those organizations to conduct lawful activities, “the ACLU said.
The ACLU amicus brief never says the group agrees with the NRA’s positions on guns. Instead, the group cites a long series of First Amendment cases to argue that regulators should not use their powers that be to punish political enemies.
A calendar prepared by the NRA suggests that the bullying campaign began last fall. Anti-gun group Everytown for Gun Safety met with New York officials in September 2017; a month later, the Department of Financial Services opened an investigation that began with a company called Lockton, which administered the NRA’s liability insurance program known as the Carry Guard. Despite a 20-year relationship, Lockton responded by abruptly abandoning the NRA as a client in February; Chubb and Lloyd’s too.
Emboldened by this first success, Maria Vullo, head of the state’s financial services department, sent a disturbing pair of letters to every bank, financial institution, and insurer licensed to do business in New York City. Vullo warned companies to sever ties with pro-Second Amendment groups that “promote guns and lead to senseless violence” and instead listen to “the voices of passionate, courageous and articulate youth” calling for no more restrictions on firearms. All companies receiving the letter, she advised, should “review any dealings they have with the NRA or similar gun advocacy organizations, and take swift action to manage those risks and promote the public health and safety “.
New York Governor Andrew Cuomo highlighted the regulatory threat in a Tweeter the next day: “The NRA is an extremist organization. I urge businesses in New York State to review any connection they have with the NRA and consider their reputation and accountability to the public.
As a result of these not very veiled threats, according to the NRA, several banks have withdrawn offers to provide basic deposit services. The NRA is also concerned that it may continue to produce its NRA TV channel, with hosts like Dana Loesch and Cam Edwards, unless it can purchase normal media liability insurance. (In May, the NRA sued Cuomo and Vullo, a former Cuomo aide when he was attorney general. See JD Tuccille’s coverage of Reason at the time.)
“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 governor opposes political views,” wrote David Cole, legal director of the ACLU, in a blog. post today. “The First Amendment prohibits state officials from using their regulatory power to penalize groups simply for promoting disapproved ideas. “
Today’s brief filed by the ACLU points to examples of how liberal groups like Planned Parenthood may also be targeted by governments based on their political views, an approach the courts have rejected based on the first amendment:
For example, in Utah Family Planning Association v. Herbert, the Tenth Circuit ruled that the Planned Parenthood Association of Utah (PPAU) was likely to succeed on its First and Fourteenth Amendment claims by showing that the Utah government refused PPAU government funding in order to “d ” weaken the organization and hamper its ability to provide and advocate for abortion services. Certainly, the impartial application of face-neutral laws does not violate the First Amendment simply because those laws can affect expressive associations. But the NRA alleged that the defendants were explicitly targeting the NRA because of its hostility to the NRA and its difference between defendants trying to suppress a case of “particular” speech or “gun promotion.” ” at large.
For its part, New York state insists that Cuomo and Vullo’s warnings that regulated companies should ditch the NRA and other pro-Second Amendment groups are perfectly legal.
The letters to regulated companies “do not constitute threats unconstitutional in law,” New York Attorney General Barbara Underwood said in an August 3 brief. The brief adds, “The guidance letters have encouraged insurers and financial institutions to assess and manage the risks that may arise from their dealings with gun advocacy organizations in the face of polarized political debate. Policy letters and press releases are classic government rhetoric – they express the government’s position in the public debate on gun control, which is quite permissible. “
Cuomo’s social media ads are unlikely to help his attorney general push back allegations of illegal bias by the NRA. Earlier this month, Cuomo posted on Facebook: “The regulations that NY has put in place are working. We are putting the NRA in financial jeopardy. We won’t stop until we shut them down.”
Two days later, Cuomo, who is pushing back a main challenge from actress Cynthia Nixon next month, posted on YouTube: “New York has the NRA on the brink. guns on US politics. ” Cuomo titled his video, “Be with us in the fight to end the NRA’s grip on US politics.” VOTE ON SEPT 13 ”
Cuomo, of course, is the same vocally anti-gun governor who in 2013 pledged “the country’s toughest assault weapons ban,” which became a problem when he belatedly realized that he commissioned gun magazines that don’t actually exist. As early as 2000, Cuomo referred to proponents of gun rights as “the enemy.”
In its own supplemental brief filed today, the NRA warns of the slippery slope that occurs when regulatory control is armed against political enemies: “The state could pass onerous building regulations and then let it be known that such regulations will only apply to owners who lease space to the NAACP or Black Lives Matter. Or, the state could start charging a sales tax for Internet purchases, but only apply the tax to merchants who stock books by a dissident author. The Court should not indulge in this end of race around equal protection. “
A hearing on New York state’s motion to dismiss the lawsuit is set for September 10.