To Limit the Second Amendment, New York Attacks the First

By David French

Tuesday, August 7, 2018

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 intervene.

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 NRA.

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 control.

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.