First Amendment

San Francisco's Anti-NRA Policy Could Be Unconstitutional

The Supreme Court has said the First Amendment protects government contractors against termination based on their political views.


When the San Francisco Board of Supervisors declared the National Rifle Association a "domestic terrorist organization" on Tuesday, it also said "the City and County of San Francisco should take every reasonable step to assess the financial and contractual relationships our vendors and contractors have" with the NRA. After that assessment, it said, city officials "should take every reasonable step to limit those entities who do business with the City and County of San Francisco from doing business with this domestic terrorist organization."

While the resolution is nonbinding, attempts to follow through on that threat could be unconstitutional. As Reason Contributing Editor Walter Olson notes, the Supreme Court ruled in 1996 that "the First Amendment protects independent contractors from the termination of at-will government contracts in retaliation for their exercise of the freedom of speech." That case, Board of County Commissioners v. Umbehr, involved a trash hauler who complained that his contract with Wabaunsee County, Kansas, had been terminated because he had publicly criticized the county commissioners.

The principle that Umbehr established poses a problem for San Francisco's NRA-shunning efforts. As Washington Post columnist Henry Olsen observes, San Francisco's aspiration to avoid contractors tainted by the NRA "arguably sets the power of a government against a set of citizens solely on the basis of their politics."

If the city were paying the NRA for firearms training and decided to end that arrangement because of the organization's Second Amendment advocacy, that decision would be clearly analogous to what the Waubansee County commissioners were accused of doing. More realistically, if the city starts to cut off contractors because of their ties to the NRA, that policy could implicate the contractors' First Amendment rights.

Any contractors who are NRA members, for instance, have a "financial relationship" with the organization by virtue of the dues they pay. If financial relationships with this "domestic terrorist organization" disqualify people from doing business with the city, that policy would punish NRA members for exercising their First Amendment rights. Or imagine a printer who does work for the NRA at a discounted rate because he agrees with the organization's goals. If the city stopped hiring the printer because of his "financial and contractual relationships" with the NRA, it would likewise be discriminating against him based on his political views.

San Francisco's anti-NRA stance is reminiscent of New York Gov. Andrew Cuomo's attempts to bully state-regulated banks and insurers into shunning the group. Last year a federal judge allowed the NRA's First Amendment lawsuit challenging Cuomo's intimidation campaign to proceed. U.S. District Judge Thomas McAvoy concluded that the governor seemed to be sending "the message that insurers and financial institutions that do not sever ties with the NRA will be subject to retaliatory action by the state."

That is not cool under the First Amendment. "However controversial it may be, 'gun promotion' advocacy is core political speech entitled to constitutional protection," McAvoy noted. He ruled that the state's regulatory guidance to banks and insurers, combined with Cuomo's public comments about the NRA, "provides a sufficient basis to invoke the First Amendment."

However that case turns out, Umbehr seems directly relevant to San Francisco's anti-NRA campaign as it relates to city contractors. "We recognize the right of independent government contractors not to be terminated for exercising their First Amendment rights," the Supreme Court said. San Francisco's supervisors seem to have overlooked that right, possibly because they equate opposition to gun control with terrorism.

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  1. Do not forget slanderous and libelous.

    1. Yup. The City of San Feces and Homeless is accusing the NRA of a crime, which is Defamation per se in many states.

      Too bad you cannot sue cities from one state in another state.

  2. The principle that Umbehr established poses a problem for San Francisco’s NRA-shunning efforts.

    Let the lawsuits begin. I’m sure the San Francisco Board of Supervisors has an ample legal defense fund. At least get the fuckers to cough up a “nonbinding” retraction.

    1. Fortunately for the NRA, that legal defense fund was raided to pay the 300k/yr pension that the Board of Supervisors’ former janitor collects every year.

      1. The principle that Umbehr established poses a problem for San Francisco’s NRA-shunning efforts.

    2. There will be no grounds for a lawsuit until the Board of S{t}upervisors actually try to enforce its “nonbinding” enactment. Here’s betting that that never really happens.

  3. I suspect you’re correct. I’ve bid on government work and been rejected. They don’t have to tell you why. There’s a reason that the threat here is implied and not explicit. The message is clear. If you do business with the NRA don’t waste your time bidding. Vendors will be excluded but none will have standing.

    1. I’ve bid on government work and been rejected.

      Having bid government work in San Francisco I can confirm – their requirements are so incredibly convoluted that no one leaves a bid with any idea who the apparent low bidder is, and you’ll wait a few weeks while the project managers jockey around with the formulas before you get an actual result. You can protest, but your protest isn’t going anywhere but the trash.

      1. Could try FOIA suit. But I’m sure they leave few footprints.

  4. I feel compelled to exercise my 1st Amendment rights to channel the South Park episode about obnoxious bikers and call The San Fran Board of Supervisors…fags.

    1. “Right back at you, big boy”

      1. How DARE you assume my gender!

    2. If that was a British accent then you called them cigarettes. 🙂

    3. Cigarettes? you want to call them Cigarettes? I may have stayed too long down under.

  5. ‘When the San Francisco Board of Supervisors declared the National Rifle Association a “domestic terrorist organization” ‘

    Oh, are they responsible for plundering local businesses and filling sidewalks with human feces? Bastards!

  6. The San Francisco Board of Supervisors has become an urban indoor presentation of Edgar Allan Poe’s “The System of Doctor Tarr and Professor Fether”.

  7. Why should the first amendment be more of an issue than the second or the fourth or the fifth? The entire state of CA ignores the second amendment with ‘common sense gun control’, and the fourth & fifth with asset forfeiture; they should be free to ignore the first as well.

  8. in my opinion there can be many other reasons that will surely can create problems with different communities within the country. still we would suggest to simply read more on the ammendement or

  9. Declaring an organization a ‘Terrorist Group’ falls under ‘policy’ now?

    Gee golly wiz Reason, a legal binding admission by a city government that it now considers one of the largest organizations in the country a ‘Terrorist Organization,’ there by stating that things like the Bill of Rights shouldn’t be applied to them or their members is just “policy.” WTF is wrong with this place?

    1. It has to be in the water… Only something environmental can explain why defecating/urinating, shooting up on the streets is considered a civil right while being a member of a 100 year old organization that promotes a constitutional right makes you a terrorist. They are just plain nuts.

  10. Since when has the left cared about any rights they don’t agree with?

  11. Typical of San Franshitsgo.

  12. Keen Umbehr is an American hero — a humble man who refused to be kicked around by his County government; took his fight all the way, and won it. He won it not only for himself, but for all of us.

  13. I am ashamed to have been born in San Francisco at this point. Glad my parents moved out of that shithole.

  14. If San Francisco is finally destroyed by the Big One, will anyone outside the I-5 corridor and Megacity One actually mourn them?

  15. I would label it as typical SF insanity.
    Let SF rot in it’s filth and drugs.

  16. And yet anti-BDS policies are constitutional?

  17. San Fransisco, where Free Speech equals Terrorism.

    I seriously have no clue how people in that city think. I live only fifty miles away, and have taken considerable effort it trying to understand their mindset, but I just can’t do it. It’s not just this NRA thing, it’s something batshit insane at every turn. Not just the Board of Supervisors, but most of the ordinary people who live there.

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