Judge Lets NRA's 1st Amendment Lawsuit Against Andrew Cuomo Move Forward
from the when-the-2nd-meets-the-1st dept
Let’s put some cards on the table to start off this post: I think Andrew Cuomo is a terrible governor of NY (and he was a terrible Attorney General before that), and doesn’t deserve to be in office. I also think the NRA is a joke of an organization, that stirs up bullshit fear and racial divisions, and frequently shits on the 1st Amendment plenty of times when people try to challenge the 2nd Amendment. I recognize that some percentage of you probably feel differently about Cuomo and (chances are…) a non-overlapping venn diagram of you probably feel differently about the NRA. I think they’re both terrible and should disappear from public life. And I say that upfront because my position on this particular lawsuit has nothing to do with which side I “like.” I don’t like either one.
But on the law in this particular case, clearly the NRA is in the right, while Cuomo is wrong. And thankfully, so far a judge agrees.
Let’s take a step back, though, to look at what’s happening. Cuomo is no fan of the NRA. And he decided to use his position as governor to punish the NRA for its advocacy. Back in April, he put pressure on banks and other financial institutions to cut all ties with the NRA. It’s kind of incredible that he would think this would fly. Indeed, the situation is pretty damn close to that time that Cook County (Illinois) Sheriff Thomas Dart pressured credit card companies to stop doing business with Backpage, leading to a pretty massive judicial smackdown from Judge Richard Posner.
A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff?s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant?s direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.
Posner, in the Dart/Backpage case, recognized that allowing government officials to pressure third parties into avoiding businesses they disliked over speech was a real problem:
For where would such official bullying end, were it permitted to begin? Some public officials doubtless disapprove of bars, or pets and therefore pet supplies, or yard sales, or lawyers, or ?plug the band? (a listing of music performances that includes such dubious offerings as ?SUPERCELL Rocks Halloween at The Matchbox Bar & Grill?), or men dating men or women dating women…
Or, you could add to that list, and say “the 2nd Amendment.” And it would fit right in with what Cuomo did regarding the NRA:
“I am 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 who often look to them for guidance and support. This is not just a matter of reputation, it is a matter of public safety, and working together, we can put an end to gun violence in New York once and for all.”
Even if you think that the NRA is a horrible organization, and that various private entities should rethink any association they have with the NRA, that’s entirely different than a powerful government official making such a statement.
But, of course, what many in the press writing about this have ignored is that this kind of bullying has been Cuomo’s playbook for years. When he was Attorney General, we had a ton of articles about the same grandstanding move, in which Cuomo would pick some high profile issue, then publicly threaten to sue organizations if they didn’t go along with his “voluntary” plan, which would be announced at a giant press conference with a smiling Andrew Cuomo. He did this in forcing broadband providers to set up porn filters. He did it in forcing social media sites to block access to porn sites again. He also did it in trying to force broadband providers to kick users off their networks over copyright infringement. And no one calls him on this abuse of power.
Except, now the NRA has. And a federal judge is letting the case move forward after denying a motion to dismiss from Cuomo’s team. The order makes it clear that Cuomo might finally face some constitutional push-back on his intimidation techniques. It’s still early in the case, so things could change, but Judge Thomas McAvoy is not impressed by Cuomo so far.
Viewing the allegations in the light most favorable to the NRA, and drawing reasonable inferences in its favor, 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.
The judge finds, as in other cases, that there’s a clear implied threat in the message coming from the Governor of the state of New York:
While neither the Guidance Letters nor the Cuomo Press Release specifically directs or even requests that insurance companies and financial institutions sever ties with the NRA, a plausible inference exists that a veiled threat is being conveyed.
There’s still much more to go in the case, and as the case moves into discovery, perhaps there will be other revelations, but right now it certainly looks like a government official abusing his position to try to retaliate against an organization he doesn’t like for their expressive speech.
And, yes, there’s something potentially ironic in the NRA now being protected by the very same 1st Amendment that it so frequently complains about in blaming video games, TV, and movies for gun violence, but it turns out that you don’t actually have to believe in the Constitution to be protected by it, and that’s kind of a good thing.