Has Governor Cuomo’s issue with the NRA grown into First Amendment violations?
The NRA and Governor Cuomo are not friends. Cuomo consistently has been an outspoken critic of the NRA, especially since gun-related tragedies have become an epidemic in our country. The NRA claims it’s all a political game for Cuomo.
Whether it’s just politics or more…
If Cuomo were playing politics, that wouldn’t necessarily be a problem. But it’s when – or if – he uses government regulatory action to keep the NRA from speaking out that the NRA has a First Amendment case. The case alleges that Cuomo and a New York agency that he controls – the Department of Financial Services (DFS) – have harmed the NRA’s rights to free speech and free association.
What did Cuomo and DFS do?
The NRA complaint, filed in federal court in New York, lists a series of actions by NY’s DFS and Governor Cuomo that the NRA claims to be problematic. We’ve grouped them into three for purposes of analyzing the First Amendment arguments:
Investigation of Carry Guard
The Investigation of Carry Guard is a big one. Carry Guard is an insurance product that gun owners can purchase to protect themselves from gun-related damages. It covers liability for acts of wrongdoing and legal costs incident to acts of self defense with a legally possessed firearm. The NRA endorsed Carry Guard and got financial benefits from proceeds of the product, which was sold by Lockton Company.
DFS started investigating Lockton and Carry Guard. The NRA would say the investigation started because NY was seeking to punish pro-gun views and NRA-related companies. Cuomo and the DFS would later respond the agency conducted the investigation as part of its regular course of regulating businesses in the state. In fact, New York insurance law bans insurance products covering defense costs arising from a criminal act.
DFS found the Carry Guard product to be unlawful and entered into a Consent Order with Lockton in which Lockton agreed to stop offering Carry Guard.
Other alleged threats and coercion
The other two categories of actions that the NRA alleges were illegal on NY’s part included an official agency statement expressing distrust in the NRA and also several of Cuomo’s public statements against the NRA and gun advocacy.
The essence of the NRA’s argument is that these weren’t mere public statements. They were threats that if companies did not stop engaging with the NRA, they were going to be punished through targeted regulatory efforts.
The difference in views
Do the actions of NY’s DFS and Governor Cuomo violate the First Amendment? The NRA argues NY and Cuomo used government power improperly to restrict the organization’s speech and association rights.
Here’s how the NRA sees it.
View the NRA Complaint.
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.
Conclusion
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?