Guns

First Amendment Challenge to L.A.'s Requirement That Contractors Disclose Ties to NRA

Just filed yesterday, and I think it should prevail.

|The Volokh Conspiracy |

You can see the story about the lawsuit, together with a link to the complaint, at Courthouse News Service; here's my analysis from when the ordinance was enacted (in February), which I still think is correct:

The ordinance states,

Each [contract] Awarding Authority shall require that a Person fully disclose prior to entering into a Contract, all of its and its Subsidiaries' contracts with or Sponsorships of the NRA.

The disclosure required under this section shall continue throughout the term of the Contract, thereby obligating a Person to update its disclosure each time the Person or its Subsidiary contracts with or enters into a Sponsorship with the NRA.

And it makes clear that it is motivated by the NRA's political advocacy, as you can see from the recitals at the start of the ordinance (e.g., "the NRA leadership, with the financial support of its dues paying members, continues to lobby against gun safety regulations").

But the Supreme Court has made clear that the First Amendment generally bans (see O'Hare Truck Service, Inc. v. City of Northlake (1997)) the government from "retaliat[ing] against a contractor, or a regular provider of services, for the exercise of rights of political association"—precisely what the ordinance implicitly threatens.

And the Court has also made clear that compulsory disclosures of political association is also presumptively unconstitutional, precisely because they deter such association, see Shelton v. Tucker (1960), a case requiring such disclosures of schoolteachers:

Even if there were no disclosure to the general public, the pressure upon a teacher to avoid any ties which might displease those who control his professional destiny would be constant and heavy. Public exposure, bringing with it the possibility of public pressures upon school boards to discharge teachers who belong to unpopular or minority organizations, would simply operate to widen and aggravate the impairment of constitutional liberty.

That case involved government employees, but the logic of O'Hare,which applied government employee First Amendment precedents to government contractors, makes clear that it applies to government contractors, too.

So the ordinance violates the First Amendment just because of its disclosure requirement alone. And it also invites First Amendment discrimination lawsuits by individual contractors who are denied contracts after they disclose that they deal with the NRA, just as an employer's asking applicants to disclose their religion would invite religious discrimination lawsuits by applicants who aren't hired (and even in the absence of specific regulations barring such question).

Naturally, the same would be true if a city asked companies whether they do business with or sponsor the NAACP, the ACLU, or any other group because of the group's political advocacy. But note that this principle applies only when the disfavored groups are selected because of what they say or what laws they support; the analysis would be different if an ordinance focuses on nonspeech actions. Asking companies where they have any contracts for building a border wall, for instance, would not violate the First Amendment, because such building isn't protected by the First Amendment. (Some such queries might in some situations violate other rules, such as those related to federal preemption, but that's a separate matter.)

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30 responses to “First Amendment Challenge to L.A.'s Requirement That Contractors Disclose Ties to NRA

  1. A caution – the Supreme Court has never actually ruled this, and it’s always possible they’ll find a distinction between employees and contractors. Professor Volokh, like many of the Conspirators, is an advocate for particular positions, not just a neutral scholar. And one feature of advocates is that they sometimes connect dots to see positions as obviously implied by the prior cases when their positions aren’t necessarily implied at all. Sometimes there is a different path through the dots than the one they see as the obvious one. Sometimes dots are just dots.

    But on this one, I suspect Professor Volokh is right that the dots are connectable.

    1. O’Hare Truck Service, Inc. v. City of Northlake, the first case linked in your article above, would appear to disagree with your assertion that SCOTUS “has never actually ruled on this”. To me, that case looks pretty squarely on-point – no distinction for contractors was allowed.

      1. My comment concerned the disclosure requirement, which O’Hare didn’t cover.

  2. What do you think about laws denying government contracts with private entities that engage in legal but questionable discrimination (e.g., against lgbtq)? Some may do so on religious grounds but others may not. Are religious or associational “rights” sufficient to overcome this type of government action? Should they be?

    1. “legal but …” answers your own question. This is a legal blog. Why do you want to make everything personal?

    2. 1. Should the government itself discriminate?
      In some cases, yes.
      Ex.1: citizens v. foreigners
      Ex.2: letting men join the military, but not women
      Ex.3: denying a marriage license for “marriages” where the parties are siblings, or persons of the same sex, or where one or both of the parties is a child
      The government should not engage in racial discrimination.
      Ex.: giving preferential treatment to certain favored racial groups (“Affirmative Action”)

      2. Should the government prohibit private entities from discriminating?
      No.

      3. Should the government deny government contracts to private entities that discriminate?
      In some cases, yes, but not as a general rule.
      Ex.: I would not deny government contracts to a business that won’t hire (i.e. that “discriminates” against) felons.

  3. So CA contractors should have the right to associate with the NRA but TX contractors should not have the right to dis-associate with Israel?

    1. Political association, such as dealing with political advocacy organizations, is protected by the First Amendment. Disassociation, in the sense of refusal to deal with various people or groups (even based on ideology) — whether with Israeli companies, with Muslims, with blacks, with people conducting same-sex weddings — is not generally protected by the First Amendment (except, I think, in particular situations, such as where someone is refusing to create speech for some group). David Bernstein discusses it well here and here.

      1. The case is different because the car was green, not red.

        1. There is a clear distinction between joining or contributing to a political party, on the one hand, and providing or declining to provide the goods or services a business otherwise provides to the general public, on the other. The first is protected by the First Amendment. But the second isn’t. Engaging in or refraining from a business transaction, even when motivated by political or ideological reasons, has been regarded as conduct rather than speech, and hence not protected by the First Amendment.

          1. “There is a clear distinction between…”

            Red cars and green cars. It’s their color.

            1. Being disingenuously obtuse is no way to go through life.
              Now, if you are really so dense that you can’t understand the point, you probably have so much difficulty tying your own shoes that your Mom buys you ones with velcro tabs.
              Its surprising that you have the ability to actually operate a computer well enough to post your crap on the internet.

              1. I really don’t understand the point. If I’m asking people to explain why association and disassociation should be treated differently–that is, I’m implying they are as similar as red cars and green cars–and the explanation is “The first [association] is protected by the First Amendment. But the second [disassociation] isn’t.” Then I haven’t been given an explanation on why they are (or should be) treated differently.

                The empty explanation that one is “conduct” and the other is not, is a restatement of the conclusion. What is going on here is that the courts are uninterested in overturning private anti-discrimination laws, but also unwilling to allow the state to disband private organizations for ideological reasons, and so it has to torture reasoning to reach the result.

      2. So freedom of association (or disassociation) is not protected by the 1st Amendment?

        1. Look up and read what I wrote to NToJ.

  4. The city’s attorney, one Mr. Michael N. Feuer must have known that it was unconstitutional. Yet I see his deputy’s signature, one Jaime Suarez, right there on the ordinance. The ordinance also says:
    “Fiscal Impact Statement: None submitted by the City Attorney. Neither the City Administrative Officer nor the Chief Legislative Analyst has completed a financial analysis of this report. Community Impact Statement: None submitted.”

    They went executive session at some point to discuss the threat of litigation, so we don’t know what was said, but the video of the agenda is a couple council members ranting about gun control. The lawyers should all be fired for incompetence.

    1. It would hardly be the first time a politician has supported a law likely to be struck down under existing precedent in order to send a political message and gain supporters favoring it. Since sometimes such pushing of the envelope results in the courts reconsidering and changing the law, it’s not clear to me it’s always wrong to do. This one isn’t likely to succeed. But nonetheless, some do.

      1. OTOH, when a municipality adopts a law that violates constitutional rights, there is more at stake then simply striking the law down. The harmed parties can seek damages and attorneys fees in a civil action under 42 USC Sec. 1983. A municipal attorney must warn the municipality of that risk. But that would likely have occurred in closed session under attorney-client privilege, so we will likely not be able to determine whether that advice was given. And even if the politicians were warned, since most provide indemnity and legal representation for public officials sued in the line of duty, the politicians who voted for this won’t be paying damages or attorneys fees anyway. The taxpayers will.

  5. You can only give advice, you can’t force the client to follow it.

  6. Would the outcome be different if the required disclosure were for ties to some group favored by the politicos rather than disfavored?

    1. Presumably they could have found some proxy question that would get at the same general information. “Do you donate to any of the following list of gun control organizations?”, for instance.

      But the point here is to intimidate businesses into denying the NRA vital banking and other services. It’s part of the general effort to make anybody and everybody the left doesn’t like into a legal non-person unable to participate in the economy or society in general.

  7. If taking your clothes off in a strip club is speech, then I think we can fit it choosing to take on the job of building a wall, given its highly politicized meaning.

    1. Generally applicable public nudity laws can indeed forbid nude dancing, see Barnes v. Glen Theatre, Inc. (1991).

  8. So could this be used as a cite in the case against Gov. Cuomo trying to strongarm banks, etc. who do business with the NRA?

  9. Sounds like we need a special counsel to round up some officials in LA who are obstructing citizens from exercising their constitutional rights. How about that for some justice.

  10. […] First Amendment Challenge to L.A.’s Requirement That Contractors Disclose Ties to NRA […]

  11. […] SCOTUS has made clear that First Amendment generally bans government from “retaliat[ing] against a contractor… for the exercise of rights of political association.” That should doom Los Angeles ordinance requiring contractors to disclose ties to National Rifle Association (NRA) [Eugene Volokh] […]

  12. […] SCOTUS has made clear that First Amendment generally bans government from “retaliat[ing] against a contractor… for the exercise of rights of political association.” That should doom Los Angeles ordinance requiring contractors to disclose ties to National Rifle Association (NRA) [Eugene Volokh] […]

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