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 nevertheless is helping the National Rifle Association (NRA) fend off extralegal attempts by New York state officials to put it out of business.
In a brief filed in federal court today, the ACLU argues that New York's strong-arm efforts to compel banks and insurance companies to ditch the NRA as a customer represent a glaring violation of the First Amendment.
"Although public officials are free to express their opinions and may condemn viewpoints or groups they view as inimical to public welfare, they cannot abuse their regulatory authority to retaliate against disfavored advocacy organizations and to impose burdens on those organizations' ability to conduct lawful business," the ACLU says.
The ACLU's amicus brief never says the group agrees with the NRA's positions on firearms. Instead, the group invokes a long series of First Amendment cases to argue that the regulators should not use their power in office to punish political enemies.
A timeline prepared by the NRA suggests the intimidation campaign began last fall. The anti-gun group Everytown for Gun Safety met with New York officials in September 2017; a month later the Department of Financial Services began an investigation that started with a company called Lockton, which administered the NRA-branded personal liability insurance program known as Carry Guard. Despite a 20-year relationship, Lockton responded by abruptly ditching the NRA as a customer in February; so did Chubb and Lloyd's.
Emboldened by this initial success, Maria Vullo, head of the state's Department of Financial Services, sent a pair of ominous letters to all banks, financial institutions, and insurers licensed to do business in New York. Vullo warned companies to sever ties with pro-Second Amendment groups that "promote guns and lead to senseless violence" and instead heed "the voices of the passionate, courageous, and articulate young people" calling for more restrictions on firearms. All companies receiving the letter, she advised, should "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."
New York Gov. Andrew Cuomo underlined the regulatory threat in a tweet the next day: "The NRA is an extremist organization. I urge companies in New York State to revisit any ties they have to the NRA and consider their reputations, and responsibility to the public.'"
As a result of those not-very-veiled threats, the NRA says, multiple banks withdrew bids to provide basic depository services. The NRA is also worried about being able to continue producing its NRA TV channel, with hosts including Dana Loesch and Cam Edwards, unless it can obtain normal media liability insurance. (In May, NRA sued Cuomo and Vullo, a former Cuomo aide when he was attorney general. See J.D. Tuccille's Reason coverage 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 political views the governor opposes," David Cole, the ACLU's legal director, wrote in a blog post today. "The First Amendment bars state officials from using their regulatory power to penalize groups merely because they promote disapproved ideas."
Today's brief filed by the ACLU points to examples of how liberal groups like Planned Parenthood can also be targeted by governments based on their political views, an approach that courts have shot down on First Amendment grounds:
For example, in Planned Parenthood Association of Utah v. Herbert, the Tenth Circuit held that the Planned Parenthood Association of Utah (PPAU) was likely to succeed on its First and Fourteenth Amendment claims by showing that the Government of Utah denied the PPAU government funding in order to "weaken the organization and hamper its ability to provide and advocate for abortion services." To be sure, unbiased application of facially neutral laws does not violate the First Amendment simply because those laws may affect expressive associations. But the NRA has alleged that Defendants are explicitly targeting the NRA based on its hostility to the NRA's viewpoint and its difference whether Defendants are attempting to suppress a "particularized" instance of speech or "gun promotion" writ large.
For its part, New York State insists that Cuomo's and Vullo's warnings that regulated businesses should ditch the NRA and other pro-Second Amendment groups are perfectly legal.
The letters to regulated companies "do not constitute unconstitutional threats as a matter of law," New York Attorney General Barbara Underwood said in a brief filed on August 3. The brief adds: "The Guidance Letters encouraged insurers and financial institutions to evaluate and manage risks that might arise from their dealings with gun promotion organizations in the face of the polarized political debate. Both the Guidance Letters and the Press Releases are classic government speech—they are expressing the government's position in the public gun control debate, which is entirely permissible."
Cuomo's social media announcements aren't likely to help his attorney general fend off the NRA's allegations of unlawful bias. Earlier this month, Cuomo posted on Facebook: "The regulations NY put in place are working. We're forcing the NRA into financial jeopardy. We won't stop until we shut them down."
Two days later, Cuomo, who is fending off a primary challenge next month from actress Cynthia Nixon, posted on YouTube: "New York has the NRA on the brink. Together, we can end the gun lobby's stranglehold on American politics." Cuomo titled his video: "Stand with us in the fight to end the NRA's stranglehold on American politics. VOTE SEPT. 13"
Cuomo, of course, is the same vocally anti-gun governor who, in 2013, promised the "toughest assault weapons ban in the country"—which became a problem when he belatedly realized he mandated gun magazines that don't actually exist. As far back as 2000, Cuomo referred to supporters of gun rights as "the enemy."
In its own supplemental brief filed today, the NRA warns of the slippery slope that occurs when regulatory scrutiny is weaponized against political enemies: "The state could enact onerous building regulations, then make it known that such regulations will be enforced only against landlords that rent space to the NAACP or Black Lives Matter. Or, the state could begin charging a sales tax for internet purchases, but only enforce the tax against merchants who stock books by a dissident author. The Court should not indulge this end-run around equal protection."
A hearing on New York State's motion to dismiss the lawsuit is set for September 10.