November 7, 2018 / 8:47 PM / in 11 days

In NRA v. N.Y., a timely reminder that officials can’t use their power to squelch speech

(Reuters) - The National Rifle Association’s favorite part of the Bill of Rights is the Second Amendment, but it was the Constitution’s protection for free speech that kept alive the NRA’s lawsuit accusing top New York officials of pressuring insurers to ditch the gun rights group.

In a notably thorough 71-page ruling on Tuesday, U.S. District Judge Thomas McAvoy of Albany rejected most of the NRA’s causes of action, including its allegations that New York Governor Andrew Cuomo and Department of Financial Services Superintendent Maria Vullo conspired to threaten banks and insurance companies with regulatory scrutiny if they did business with the NRA. Judge McAvoy also tossed the NRA’s claim that state officials improperly interfered with the NRA’s business interests and held the gun rights group cannot seek an injunction to shield its future business partners. Nor can the NRA move forward with assertions that Cuomo and Vullo violated its right to associate with its members.

But Judge McAvoy refused to toss the NRA’s claims that Cuomo, Vullo and the DFS interfered with the NRA’s right to advance its agenda when state officials, in public statements and in regulatory actions, threatened to use the power of their offices against businesses that work with the NRA. “The allegations of direct and implied threats to insurers and financial institutions because of these entities’ links with the NRA, and the allegations of resulting harm to the NRA’s operations, are sufficient to make out plausible First Amendment freedom-of-speech claims,” the judge wrote.

Even the American Civil Liberties Union, which said last year that it will no longer defend the free speech rights of hate groups armed with guns, backed the NRA in its First Amendment arguments against Cuomo and Vullo. “Although public officials are free to express their opinions and may condemn viewpoints or groups they view as inimical to public welfare,” the ACLU said in an amicus brief opposing the New York officials’ motion to dismiss the NRA’s suit, “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 NRA claims the state’s unconstitutional campaign to squelch its First Amendment rights began last spring, when Governor Cuomo issued a press release announcing that he was directing the state Department of Financial Services to send a letter to companies under its purview, urging them to review their relationships with the NRA and other gun rights groups lest they “harm their corporate reputations and jeopardize public safety.” Cuomo also issued a tweet that said, “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.”

DFS Superintendent Vullo backed the governor with a “guidance letter” sent to banks and insurance companies under her regulation. The letter suggesting that doing business with the NRA could have serious negative repercussions in light of mass shooting tragedies.

Soon after the press release and the guidance letter, New York’s DFS entered consent decrees with two insurance companies that teamed up with the NRA to offer “carry guard” insurance policies for gun owners concerned about the cost of defending themselves for using their weapons. The insurer Lockton admitted to violations of New York law and agreed to pay a $7 million fine. Chubb agreed to a $1.3 million fine and said it would no longer offer similar NRA-affiliated insurance, though it was not barred from providing insurance to the NRA.

The NRA said in its lawsuit that in addition to these public acts encouraging New York-regulated businesses to cut ties with the gun rights group, Cuomo and Vullo covertly issued “backchannel threats” that banks and insurers failing to heed their public warnings would face the same kind of regulatory scrutiny as Chubb and Lockton. According to the NRA, businesses heeded the threats. Lloyd’s announced it was dropping insurance programs affiliated with the NRA, other insurers approached by the group said they were afraid to pick up the programs and banks withdrew bids to work with the NRA. The group chalked these setbacks up to the “chilling effect” of New York’s campaign.

As you know, government officials have a right to express their views. There’s nothing wrong with Governor Cuomo railing against the NRA. Officials also, of course, have a right to enforce regulations, so there’s nothing wrong, on its face, with Superintendent Vullo investigating suspected improprieties in the NRA-affiliated “carry guard” insurance programs (though the NRA may be entitled to money damages if it can prove its affiliates were selectively prosecuted).

If Cuomo and Vullo overstepped, according to Judge McAvoy, it was in allegedly threatening to use the power of their offices to squelch the NRA because they don’t like the group’s views. The judge said the NRA still has to prove Cuomo and Vullo actually engaged in the alleged intimidation – since he was ruling on a motion to dismiss, he must assume the truth of the NRA’s allegations – but made it clear that the First Amendment prohibits officials from muffling speech just because they don’t like it. The U.S. Supreme Court, you’ll recall, just said as much in a 2017 decision Judge McAvoy cited, Matal v. Tam (137 S.Ct. 1744).

NRA lawyer William Brewer of Brewer Attorneys & Counselors said in an email statement that Judge McAvoy’s decision upholds “basic First Amendment principles,” and “marks a significant development for not only the NRA, but all advocacy groups engaged in political speech under the protections of the First Amendment.” I emailed the New York solicitor general’s office, which represents Governor Cuomo and Superintendent Vullo in the case, but didn’t hear back.

For those who welcomed Governor Cuomo’s collateral attack on the NRA via the businesses that help the gun group function, it’s worth remembering that the next official who attempts a similar tactic might be gunning for a group whose politics you like. Think about President Trump and the NFL protesters, for instance. As I discussed with Alex Abdo of the Knight Foundation in a podcast in September, the president has a First Amendment right to complain about NFL players protesting police violence, but if he were to invoke the power of the state to coerce NFL team owners to crack down on protests, he’d be compromising the players’ First Amendment rights.

To paraphrase the cliché, you can deplore what the NRA has to say but nevertheless defend its right to speak without government interference.

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