NY and Governor Cuomo take issue with two main parts: 1) that they used government power improperly; and 2) even if they had, that their actions caused the NRA’s speech and association rights to suffer.
View the NY and Cuomo Motion to Dismiss.
NY and Cuomo argue they are allowed to express their own views too, as protected by the First Amendment. It’s true: Cuomo can speak out against views he doesn’t like, and the government may also make policy calls and express itself publicly. But the difference lies in how the parties used NY state power. While they can speak out, they cannot coerce people (or companies) using the threat of state regulatory power.
To what extent were the actions of the NY government parties coercive or threatening, versus merely suggestive?
Additionally, NY and Cuomo attack the connection to speech that the NRA alleges. They argue that regulating companies that do business with the NRA is not necessarily tied to the NRA’s speech rights. Money isn’t speech, right? Or is it? Remember Citizens United v FEC.
This stage of the case
At this stage, the judge is not getting into the facts. It’s a “motion to dismiss” before the case even gets out of the gates. So the judge hasn’t heard evidence yet from the parties. The judge won’t be analyzing the motivations of the government parties in full to determine whether they had it out for the NRA. The judge will simply be deciding, whether, if the NRA’s version of the facts are correct, does that make the NY parties liable? If so, then the case will go on. NY’s motion to dismiss will be rejected.
On the other hand, the judge may look at the case, take the facts as the NRA spells them out, compare the situation to some other First Amendment cases, and say – You know, I think it doesn’t matter. It’s clear that the NY parties were acting permissibly, and the NRA can’t allege a First Amendment violation even if what they say is true. In that case, the court will support NY’s motion to dismiss…and dismiss the case.
Why it will be hard for NY
In regards to the investigation of Carry Guard, the NY parties argue that illegal conduct does not deserve First Amendment protection. It’s simple, in their view. If the court buys it, then the court may not need to look behind their investigation of Carry Guard at the state’s real motivations (which would happen at a later stage). However, the Supreme Court decided a case last term, Lozman v. City of Riviera, also a First Amendment case, ruling that just because the government has the lawful authority to take action against a party, the court still can review whether the government’s real motivation was a retaliatory one to regulate a party’s viewpoint.
Regarding the anti-NRA public statements, the NY parties similarly argue that the court need not look behind the statements themselves to determine how threatening they actually were. The court can, NY and Cuomo argue, simply review the statements “on their face” and make the determination. The NY parties’ brief cites to case authority for this, but it’s unclear the court will go for just a facial review of the statements versus wanting to gather more evidence.
At this stage, if the court decided it needs further evidence to make a decision, it will reject the NY parties’ motion to dismiss and instruct the parties to proceed with the next stages of litigation.
This case looks very fact-specific. It probably will turn on the motivations of the NY parties. When DFS investigated Carry Guard, were the NY parties really targeting the NRA based on the organization’s pro-gun views? And were the public statements that Cuomo and the agency made actually threats to coerce businesses to cut ties with the NRA, or merely attempts to convince the businesses to do so?