To Limit the Second Amendment, New York Attacks the First

From: Gene Poole ([email protected])

The state has no right to threaten financial institutions that
do business with the NRA.
Imagine the following scenario. Imagine the media response.

By October, the governor of Texas was fed up. A well-funded ten-
month campaign by Everytown for Gun Safety designed to
stigmatize gun ownership was causing support for gun rights to
measurably decline. Called “You afraid?” the campaign mocked men
and women who carried weapons to grocery stores or restaurants.
An associated “courage” campaign asked mothers to hand back
their carry licenses, and while most didn’t, the dozens who did
received international media attention.

Then, two weeks before Halloween, a gunman opened fire in a
Houston Walmart, and no one responded for nine agonizing minutes
until police arrived. This was Texas. The store wasn’t a gun-
free zone — yet not a single armed citizen was available to

The governor was furious. In public comments, he blasted
Everytown, declaring — in no uncertain terms — that “gun-
controllers have no place in Texas. Because that’s not who we
are.” But words mean nothing without action, and the state of
Texas acted. The governor directed state regulators to “urge
insurers and bankers statewide to determine whether any
relationship they may have with Everytown or similar
organizations sends the wrong message to their clients and their
communities who often look to them for guidance and support.”

Regulators responded, issuing “guidance letters” directed at the
chief executive officers, or equivalents, of all Texas licensed
financial institutions and all insurers doing business in Texas.
The letters urged recipients to sever ties with Everytown and
other “gun controller organizations.” The letters went well
beyond a mere political exhortation and invoked the private
corporations’ “risk management” obligations and their
obligations to consider “reputational risks.”

State regulators began investigating Everytown’s business
transactions in the state and coerced key vendors into consent
decrees that not only punished allegedly unlawful activity but
banned those vendors from engaging in entirely lawful business
relationships with the gun-control organization. As state
regulators moved, other commercial entities backed away — ending
longstanding business relationships with Everytown.

Let me ask a simple question. If Texas acted like this — if it
used state financial regulators to issue warning letters to
institutions doing business with an organization unquestionably
engaged in constitutionally protected advocacy — do you think
for one moment that America’s mainstream media would remain
silent, or speak up mainly to chuckle at Everytown’s financial
predicament? Do you think for one moment that America’s leading
progressives wouldn’t sense an immediate threat to free speech?

Yet the scenario above is playing out today, in a different
state, with a different target. New York’s Andrew Cuomo is
engaging in a deliberate campaign to use state power to drive
the NRA out of business. It’s using a combination of consent
decrees and warning letters directed at financial institutions
to coerce them into cutting of business relationships with the

Cuomo’s intentions aren’t hidden. He’s on a crusade. “If I could
have put the NRA out of business, I would have done it 20 years
ago,” he said earlier this week. He followed up with this pithy
statement: “I’m tired of hearing the politicians say, we’ll
remember them in our thoughts and prayers. If the NRA goes away,
I’ll remember the NRA in my thoughts and prayers.”

Clever. But when statements like this are accompanied by state
action, there’s another word that applies — unconstitutional.

New York’s lawyers argue that the state’s letters represent
nothing more than government speech. The NRA and the state are
engaged in nothing more than a frank exchange of ideas. But
while the government does have broad power to engage in its own
advocacy, that power has its limits. As the Second Circuit has
recognized, there is a difference between “permissible
expressions of personal opinion and implied threats to employ
coercive State power to stifle protected speech.” When “comments
of a government official can reasonably be interpreted as
intimating that some form of punishment or adverse regulatory
action will follow the failure to accede to the official’s
request,” a First Amendment claim exists.

It simply strains credulity to argue that a financial
regulator’s letter to the financial institutions it closely
regulates urging those institutions to consider “risk
management” when dealing with the NRA is nothing more than
robust debate. Indeed, the letter at issue is explicitly phrased
as offering regulatory “guidance.” The NRA also claims this
“guidance” — combined with other state actions — is making
corporations fear reprisals if they continue to do business with
the NRA. Here’s a key claim in the NRA complaint:

On or about February 25, 2018, the Chairman of Lockton
Companies, placed a distraught telephone call to the NRA.
Lockton had been a close business partner of the NRA for nearly
twenty years; its commitment to the parties’ business
relationship had not wavered in connection with the Parkland
tragedy, nor the prior Sandy Hook tragedy, nor any previous wave
of public controversy relating to gun control. Nonetheless,
although he expressed that Lockton privately wished to continue
doing business with the NRA, the chairman confided that Lockton
would need to “drop” the NRA — entirely — for fear of “losing
[our] license” to do business in New York.

New York has filed a motion to dismiss the NRA’s claims, but it
is imperative that New York’s actions be subject to full and
fair discovery. The extent of public animus directed at the NRA,
the specific “guidance” and consent decrees, and the allegations
of “backroom” pressures at the very least deserve the scrutiny
of civil litigation and at the very least should raise the alarm
of civil libertarians — regardless of their positions on gun

As I’ve written many times before, the battle over gun rights
has devolved into a bitter, unyielding culture war, and in a
culture war, civil liberties are often the first casualty. State
officials have their own free-speech rights, yes, but those free-
speech rights do not include the right to use express or implied
threats to wield state power against disfavored viewpoints.

Heckle all you want, Governor Cuomo. Display your malice. But
the instant that malice translates into state action aimed at
speech is the instant the Constitution holds you to account.

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