By Walter Olson
Wednesday, January 08, 2020
Some politicos just can’t stop grandstanding, even if it
means their court case goes down in flames. Consider what just happened in a
federal court in Los Angeles.
Not long ago, progressive state and local officials
nationwide were vowing to take down the hated National Rifle Association by
targeting its pocketbook. When city authorities in Los Angeles and San
Francisco gave that idea a try, they were following the lead of Governor Andrew
Cuomo, who had unleashed New York financial regulators to go after the
gun-rights organization’s access to insurance and banking services.
Now all three are facing a reckoning in court, based not
on the Second Amendment but on the First. Without needing to even consider the
issue of gun rights, federal courts are recognizing that boycotts enforced by
government power can menace free speech and free association.
The amusing part is that the public officials themselves
are helping to provide the basis for these rulings by tweeting and speechifying
about how much damage they intend to do the NRA.
In December, a federal court in California granted a
preliminary injunction against a Los Angeles ordinance requiring city
contractors to disclose any business links to, or memberships in, the gun
group. It found the evidence “overwhelming” that the city’s intent in passing
the law was “to suppress the message of the NRA.”
***
Public officials have been on notice about this sort of
thing for at least two decades, since the 1996 Supreme Court case Board of
County Commissioners v. Umbehr. In that case, the Court held that a
county’s having terminated a government contract in retaliation for the
contractor’s persistent and annoying political speech could violate the First
Amendment. Controversial and unpopular speech is protected speech; officials
cannot yank a contract from some business, or threaten to, just because it has
donated to, or partnered in some venture with, the Sierra Club, the NAACP, or
the NRA.
Lawyers for Los Angeles tried to defend their ordinance
by saying all it did was require disclosures from contractors, which wouldn’t
necessarily amount to punishing or chilling speech. But this sort of First
Amendment claim comes down to a question of intent. And the court found that
the city’s lawmakers had made their intent to suppress speech and association
utterly clear. They had done so in the text of the
ordinance itself, in its legislative history, and in the statements made at
the time by its chief sponsor, Councilmember Mitch O’Farrell (Hollywood-Silver
Lake).
The ordinance starts off with a long preamble that, amid
much demagogy, cites the NRA’s $163 million (2015) in membership dues and
asserts that those dues go toward foiling beneficent legislative ends. That
helped establish nicely that part of the bill’s aim was “to cut off revenue to
the NRA because of its pro-firearm advocacy,” as the court put it.
Then there were O’Farrell’s various pronouncements.
Earlier in the year, he had motioned the city to “rid itself of its
relationships with any organization that supports the NRA” and further moved
that the city’s chief legislative analyst “report back with options for the
City to immediately boycott those businesses and organizations” that do
business with the NRA “until their formal relationship with the NRA ceases to
exist.”
Were doubt left about his intentions, O’Farrell’s Twitter
outbursts through 2018 told of his efforts to jawbone businesses such as FedEx
and Amazon into cutting off business relations with the NRA, often tagging
friendly accounts such as @everytown, @momsdemand, @shannonrwatts, and
@bradybuzz. It was unnecessary to show that the city had actually cut off any
businesses, or that any such businesses had cut ties with the NRA for fear of
city displeasure. So long as the ordinance was intended to chill speech and
association, as it was, it would fall.
***
San Francisco’s similar ordinance, although also the
subject of a brief challenge in court, collapsed as a practical matter even
more quickly. The measure’s tantrum-like
preamble branded the NRA a domestic terrorist group, in a move calculated
to draw wide national attention. The text of the ordinance proclaimed that the
city should “take every reasonable step to limit those entities who do business
with the City and County of San Francisco from doing business with” the
gun-rights organization. Commentators promptly pointed out that any such step
would fail in court as unconstitutional.
Soon thereafter, San Francisco mayor London Breed issued
a memo clarifying that “the City’s contracting processes and policies have not
changed and will not change as a result of the Resolution” because only an
actual ordinance can enact changes to city law. The NRA is suing anyway, but by
the city’s own account the measure at this point does nothing except beam out
vain hostility.
***
Governor Cuomo was shrewder. He avoided the blatant statements
of intent that tripped up his California counterparts. But did he retain enough
deniability to survive a court challenge? In April 2018, he issued a statement
saying he was directing “the Department of Financial Services to urge insurance
companies, New York State-chartered banks, and other financial services
companies licensed in New York to review any relationships they may have with
the National Rifle Association and other similar organizations.” Review such
relationships for what, exactly? Well, “the companies are encouraged to
consider whether such ties harm their corporate reputations and jeopardize
public safety.” In a press release, he made things a tad more explicit, saying
that he was directing his financial regulators “to urge insurers and bankers
statewide to determine whether any relationship they may have with the NRA or
similar organizations sends the wrong message” (emphasis added).
Those regulators, of course, have the discretion to make
life very unpleasant for insurers and banks dense enough not to take the hint.
Sure enough, the NRA in short order was cut off by some long-term business
partners, notable among them one major insurer and one major insurance broker.
The state declared that it had found regulatory infractions in NRA-branded
insurance-affinity offerings, and in the ensuing settlements with the insurer
and the broker it got them to promise never to do business with the NRA again,
in New York or anywhere else. Yet at the same time, the NRA says, the state
took no action against similarly marketed affinity products sold by others.
Cuomo’s financial regulator made things a little more explicit still: “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.”
In November 2018, a federal court in New York found that
all in all, there was enough plausible evidence of “direct and implied threats
to insurers and financial institutions because of these entities’ links with
the NRA” to allow the group to proceed with a First Amendment suit. While Cuomo
was of course free to express his own views, the Constitution would have
something to say about it if he or his appointees had made veiled threats
against banks and insurers to encourage them to disassociate from the NRA. The
court also asked for more evidence documenting a selective-enforcement claim,
and this summer, against stiff legal resistance from the state, the NRA
succeeded in getting discovery of some state files. In a filing on December 20,
the NRA said it had found new documentation of both the pressure and the
selective enforcement.
***
One reason the California disputes went so well for the
NRA is that the officials just couldn’t help grandstanding at every turn in
search of followers’ applause. That’s how O’Farrell, in Los Angeles, helped
tweet his side of the case right out of court. But Cuomo, while he’s been more
circumspect, has not covered himself as thoroughly as he might have. “If I
could have put the NRA out of business, I would have done it 20 years ago,” he
declared in response to one legal development.
Tell us more, Governor.
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