Clarifying the significance of a resolution that absurdly condemned the National Rifle Association (NRA) as a "domestic terrorist organization," San Francisco Mayor London Breed argues that the measure will have no practical effect. Although she does not mention the First Amendment lawsuit provoked by the resolution, her reasoning seems to be the city's best defense against the argument that threatening to cut off contractors with ties to the NRA violates the right to freedom of speech.
The resolution, which the San Francisco Board of Supervisors unanimously approved on September 3, urges city officials to "assess the financial and contractual relationships our vendors and contractors have" with the NRA and "limit those entities who do business with the City and County of San Francisco from doing business with this domestic terrorist organization." Insofar as it affects contractors who are sympathetic to the NRA's Second Amendment advocacy, that policy seems like a clear violation of the principle established by the U.S. Supreme Court in the 1996 case Board of County Commissioners v. Umbehr. "The First Amendment protects independent contractors from the termination of at-will government contracts in retaliation for their exercise of the freedom of speech," the Court said in that decision.
But don't worry, Breed and City Attorney Dennis Herrera say in a memo dated September 23, two weeks after the NRA challenged the resolution in federal court. "The Resolution does not impose any obligations on City departments or members of the public," Breed and Herrera write. "Because the Resolution did not change City law, the City's contracting processes and policies have not changed and will not change as a result of the Resolution." No harm, no foul.
"In a Face-off With the N.R.A.," says the headline over a New York Times story about the memo, "San Francisco Blinks." John Coté, a spokesman for Herrera, rejected that characterization. The memo "just explains what has always been true —the resolution does not change the law," he told the Times. "If the N.R.A. thinks this is a win, it's only because their lawsuit completely distorts what the resolution actually does."
The NRA, for its part, is not dropping its lawsuit, which argues that even the threat of penalizing contractors for their ties to the organization has a chilling effect on constitutionally protected speech. The NRA also claims the policy described in the resolution would unconstitutionally punish the organization itself for exercising its freedom of speech.
City officials "wisely have attempted to pull back from what we alleged…was a clear violation of the association's First Amendment rights," NRA lawyer William A. Brewer III told the Times. "What we hope is that the Board of Supervisors will further mitigate the damage they've done" by rescinding the resolution or "walk[ing] away from it in some binding way."
Supervisor Catherine Stefani, who sponsored the resolution, also has emphasized its practical insignificance. "It's a resolution," she told the Times after the NRA filed its lawsuit. "It's not an ordinance. It's nonbinding." Her measure, in other words, was nothing more than meaningless bluster, and it should be viewed as such by the courts.