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Federal Judge Says It's Plausible That Andrew Cuomo Violated the First Amendment by Pressuring Banks and Insurers to Shun the NRA

The organization's lawsuit against New York's governor survives a motion to dismiss.

Office of the GovernorOffice of the GovernorLast night a federal judge said the National Rifle Association may proceed with a lawsuit that claims New York Gov. Andrew Cuomo is violating the First Amendment by pressuring banks and insurers to shun the NRA and "similar gun promotion organizations." U.S. District Judge Thomas McAvoy questioned Cuomo's claim that his messages about the wisdom and propriety of providing financial services to the NRA amount to nothing but legitimate regulatory oversight and protected government speech.

As I explained in my column today, and as McAvoy describes in his decision, there is strong evidence that Cuomo and Maria Vullo, superintendent of the New York State Department of Financial Services (DFS), are in fact threatening banks and insurers that dare to do business with organizations that oppose the governor's gun control agenda.

In a press release last April, Cuomo said he was "directing the Department of Financial Services to urge insurers and bankers statewide to determine whether any relationship they may have with the NRA or similar organizations sends the wrong message to their clients and their communities." Vullo was more explicit, saying "DFS urges all insurance companies and banks doing business in New York to join the companies that have already discontinued their arrangements with the NRA."

Guidance memos that Vullo sent to banks and insurance companies that day communicated the same message, warning that "reputational risks...may arise from their dealings with the NRA or similar gun promotion organizations" and urging "prompt actions to manage these risks." The next day, Cuomo tweeted: "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."

The press release, memos, and tweet were quickly followed by consent degrees in which the companies that had managed and underwritten the NRA's Carry Guard insurance program in New York not only agreed to pay fines for violations of state law but promised to stop doing business with the NRA. During this period, according to the NRA, Vullo's department engaged in "backroom exhortations," warning "banks and insurers with known or suspected ties to the NRA that they would face regulatory action" if they failed to cut ties.

"The temporal proximity between the Cuomo Press Release, the Guidance Letters, and the Consent Orders plausibly suggests that the timing was intended to reinforce the message that insurers and financial institutions that do not sever ties with the NRA will be subject to retaliatory action by the state," McAvoy notes. "The allegations in the Amended Complaint are sufficient to create a plausible inference that the Guidance Letters and Cuomo Press Release, when read together and in the context of the alleged backroom exhortations and the public announcements of the Consent Orders, constituted implicit threats of adverse action against financial institutions and insurers that did not disassociate from the NRA."

Those threats had a noticeable impact, causing insurers and banks to either end existing relationships with the NRA or decline new business. One banker from upstate New York told American Banker that the "politically motivated" guidance memos put people like him in a bind: "If a business is a legal entity, how do I know who is going to come in disfavor with either the New York State DFS or a federal regulator, that they may say, 'Reputationally, you shouldn't be doing business with this company'? It's hard to know what the rules are." Other industry sources told the magazine "such regulatory guidelines are frustratingly vague, and can effectively compel institutions to cease catering to legal businesses."

Far from denying this chilling effect, Cuomo crowed about it. "If the @NRA goes bankrupt because of the State of New York," he tweeted in August, "they'll be in my thoughts and prayers. I'll see you in court."

Now that Cuomo has gotten to court, comments like that present a problem if he wants to deny that he is abusing his powers to pursue an unconstitutional vendetta against his political opponents. "The Guidance Letters and the Cuomo Press Release indisputably are directed at the NRA and similar groups based on their 'gun promotion' advocacy," McAvoy writes. "However controversial it may be, 'gun promotion' advocacy is core political speech entitled to constitutional protection. The Guidance Letters and Cuomo Press Release's comments directed to this protected speech provides a sufficient basis to invoke the First Amendment on these claims." Hence "the critical question here is whether Defendants' statements, including the Guidance Letters and Cuomo Press Release, threatened adverse action against banks and insurers that did not disassociate with the NRA." The answer seems pretty clear.

[I misspelled Judge McAvoy's name in the original version of this post.]

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  • BestUsedCarSales||

    Fuck him.

  • Gozer the Gozarian||

    Fuck him in the ass.

  • Last of the Shitlords||

    Cuomo should be executed by the feds as soon as possible.

  • Sevo||

    "Fuck him."
    With the asshole rev's dick.

  • BigT||

    "The NRA Democrat party is an extremist organization. I urge companies in New York State to revisit any ties they have to the NRA Democrat party and consider their reputations, and responsibility to the public."

    Evidence: Alexandria Super-Crazio, socialist

  • croaker||

    Occasional-Cortex

  • Dixon Sider Woodchipper||

    Even that might be giving her too much credit.

  • Bronze Khopesh||

    It'd be nice to have states not be able to do this, but what potential cost is there to Cuomo personally? It's not like he's going to have to pay a judgement. And I doubt this will hurt him politically.

    Something should rebound onto him and the other people who pushed this.

  • Gaear Grimsrud||

    Cuomo knew going in this wouldn't fly in the federal court. But he got to posture for the gun grabbers and if the litigation gets too expensive he'll just raise cigarette taxes.

  • ||

    If it does actually pan out for Cuomo, it would be equally legal for someone to coerce banks to stop doing business with him personally, because they dislike his politics.

  • Inigo Montoya||

    If it pans out for Cuomo, he'll have opened up all kinds of problems that have to do with public accommodation. I get it that he's defined the NRA as "extremist" because he's personally decided legal gun-ownership is icky.

    So what if some racist banker decides not to serve black customers in the future? Or serve customers that have opposing political views to those of the bank's directors? Or what if a bank decides to not do business with retail stores they don't like, such as Walmart, or sex shops, or liquor stores? Seems Cuomo has opened a can of worms.

  • kevrob||

    If you want to visit Wal*Mart, and you live in the 5 boroughs, you have to head to Nassau County, or Jersey.

    NYC thwarts Wal*Mart as told by the NYT, but including W*M's workaround.

    NY Pols deciding who can and who can't do business in that state is nothing new, but dragging what is, in reality, a civil rights organization into that net is.

  • garthur||

    Or how about the NRA encouraging bodyguards to disassociate with him and then tweet, "If he should find himself unprotected and harmed, or worse -well our thoughts and prayers will be with his family." ?

  • Ryan Frank||

    In other news its plausible that water is wet and the sun rises in the east.

  • OpenBordersLiberal-tarian||

    Andrew Cuomo is great. Although I hope the 2020 Democratic nominee is someone from a more diverse background, if it absolutely has to be a white cis-male, we could do a lot worse than him. I think I even prefer him to Avenatti at the moment.

    #LibertariansForGunSense
    #2AOnlyAppliesToMilitias

  • Bronze Khopesh||

    Maybe Evan McMullin can switch parties...

  • OpenBordersLiberal-tarian||

    I like a lot of what I've read from McMullin. He's one of the few respectable conservatives remaining, along with David Frum and Jennifer Rubin.

  • JesseAz||

    Now this is how you parody. Well done.

  • Matthew Borcherding||

    Plus Max Boot and Bill Kristol.

  • Dillinger||

    thing for italians?

  • TangoDelta||

    It's probably only for the Chianti and fava beans.

  • The Knuckle||

    Honest question OBL, what are issues agree with the LP on besides open borders?

  • The Knuckle||

    Besides and edit button

  • The Knuckle||

    ........shit

  • vek||

    Come on OBL, EVERYBODY knows Italians aren't REAL white people! It is known! ;)

  • 43north||

    OpenBordersLiberal:
    So you'd endorse the Cuomo-Weiner ticket in 2020?

    Oh, and your hashtag? Fixed it.
    #LIBERALforGunBAN - as there's nothing Libertarian about your position.

  • Last of the Shitlords||

    Only a racist could find a white straight cis. Are to be acceptable! Racist!

  • perlchpr||

    It's always fucking hilarious to me when people call the NRA an "extremist" group.

    There are plenty of people out here who wish they actually were.

  • Bronze Khopesh||

    If gun owners in general were as extreme as we are portrayed by the hoplophobes and the media stooges there wouldn't be any gun controllers to portray us as extremists.

  • perlchpr||

    People who think the NRA are extremists are usually utterly horrified when I talk to them about the JPFO.

  • RoninX||

    It's even worse when they misrepresent the NRA as a "gun industry lobby", ignoring the millions of voters who support gun rights and give the NRA it's strength.

  • Brett Bellmore||

    Indeed, the NRA leadership treasure the fact that they're called an extremist group, it really makes them more popular with a membership that's irate about their tendency to compromise.

  • Fist of Etiquette||

    Fortunately there are no teeth behind First Amendment protections which would bite the defendants.

  • Ama-Gi Anarchist||

    Yea, that's sadly true. Cuomo should be thrown in Federal pokey for this, in all honesty: Deprivation of Civil Rights under Color of Law.

  • Unicorn Abattoir||

    The next day, Cuomo tweeted: "The NRA is an extremist organization."

    Thank you, Gov. Cuomo. It's good to know that we have middle-of-the-road guys like you in office to point out the extremists.

  • Diane Reynolds (Paul.)||

    Perhaps he could put his talents to better use and pressure banks to stop doing business with Muslim organizations instead.

  • Earth Skeptic||

    Can't be true. A democratically elected Democrat as symbol of democracy can do no wrong as the democratic voice of the Democratic majority.

    Cuz all that matters is democracy, right?

  • dangfitz||

    "Reputational Risk" is one of the factors bank regulators use in evaluating the solvency of banks. Invoking it is a direct threat to the bank's existence.

  • Rock Lobster||

    "Nice bank you have there. It'd be a shame if something were to... ah... happen to it."

  • NoVaNick||

    Seriously? How the fuck can NYers keep re-electing this guy and his fellow progtards? Is anyone surprised that this state is losing population so fast?

  • Sevo||

    "Seriously? How the fuck can NYers keep re-electing this guy and his fellow progtards?"

    I live in CA; did you see the ballot choices for about any office? I voted R for governor; second R vote in my life and it was amazing an R ended up on the ballot.

  • BigT||

    It's all about not taking responsibility for one's self and virtue signaling.

  • JesseAz||

    So Ford was "credible" despite every contemporary witness denying it.... But here cuomos comments are merely plausible despite actual memos? Did the English language change?!?

  • commentguy||

    The trial isn't over yet.

  • bocoran sgp||

    I misspelled Judge McAvoy's name in the original version of this post
    situs taruhan togel
    bocoran togel

  • vek||

    What a friggin' tool.

    This is awesome though. The right and libertarians really need to start using legal actions A LOT MORE to fight the bullshit the left is pulling. Not only when it is the government overreaching, but when private companies do shit that is contrary to our goals. The left plays dirty, so we have to too. If public accommodation laws, anti discrimination laws, etc are all going to be on the books, might as well use them to defeat out enemies, until we can eventually get rid of the bad laws in the first place!

  • Alan@.4||

    That said, exactly when does the prosecution of Cuomo and Co. commence?

  • RoninX||

    In a press release last April, Cuomo said he was "directing the Department of Financial Services to urge insurers and bankers statewide to determine whether any relationship they may have with the NRA or similar organizations sends the wrong message to their clients and their communities." Vullo was more explicit, saying "DFS urges all insurance companies and banks doing business in New York to join the companies that have already discontinued their arrangements with the NRA."

    This sounds like the way the Mafia works. "Nice bank you have there. Shame if something bad happened to it."

  • NeoLiberal||

    There is little difference in the tactics or progs, organized crime, and fascists.

  • NeoLiberal||

    This is a tough one because the idiot has Free Speech rights. After going back and forth, I am OK with this lawsuit because government officials should understand the restrictions they will be subject when they run for office. In the end, its more dangerous to give Big Brother this authority than it is to restrict his speech while he is in office.

  • fawem4||

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