The National Rifle Association appears to be sailing into some uncharted legal waters this week with a lawsuit targeting the Governor of New York and the state’s Department of Financial Services (DFS). The NRA claims that recent “regulatory” actions and advisories issued to banks doing business in New York represent a violation of the group’s First Amendment rights. While attacking the NRA is a proven winner politically for liberals like Cuomo (who is currently engaged in a primary battle, faces a general election in November and has 2020 presidential aspirations), the Governor may have gone too far this time and run afoul of the law. (NRA-ILA)

The National Rifle Association of America (“NRA”) today announced that it filed a lawsuit against the New York State Department of Financial Services (“DFS”), New York Governor Andrew Cuomo, and DFS Superintendent Maria T. Vullo alleging violations of the NRA’s First Amendment rights.

Filed on May 11, 2018, in the United States District Court for the Northern District of New York, the lawsuit claims that Cuomo, Vullo, and DFS engaged in a “campaign of selective prosecution, backroom exhortations, and public threats” designed to coerce banks and insurance companies to withhold services from the NRA. The NRA argues that such tactics vastly overstep DFS’s regulatory mandate, and seek to suppress the speech of Second Amendment supporters and retaliate against the NRA and others for their political advocacy. The lawsuit seeks millions of dollars in damages to redress harms inflicted by the DFS campaign.

“Political differences aside, our client believes the tactics employed by these public officials are aimed to deprive the NRA of its First Amendment right to speak freely about gun-related issues and in defense of the Second Amendment,” says William A. Brewer III, partner at Brewer, Attorneys & Counselors and counsel to the NRA.

I’m still not entirely clear how this adds up to a First Amendment issue rather than some sort of suppression of trade question. The maneuvers in question involved an advisory letter sent by DFS to most of the banks and insurance companies doing business in the Empire State. The letter suggested the institutions should take action to avoid “reputational risk” which could supposedly arise from doing business with “gun promotion organizations.” The same day, the Governor himself issued a press release quoting DFS Superintendent Maria T. Vullo in which she urged all insurance companies and banks doing business in New York” to “discontinue their arrangements with the NRA.”

The New York Post adds some additional background to the story, citing a recent $7M fine on the NRA’s insurance broker, Lockton Cos. The state claims that Lockton doesn’t have a license to do business in New York. But even if that’s the case, how would that justify an effort to blacklist the NRA from any business with banks and other insurance companies?

Perhaps the better question is whether or not it’s legal for a state government to actively press businesses such as banks and insurance companies to cut ties with a group which is engaged in political activism and not breaking any laws. It certainly sounds like New York is doing something illegal here, but I’m hard pressed to say exactly what law is being violated. I’m not finding any similar examples to go by, possibly because this may be entirely unprecedented. Maybe there isn’t a specific law against it because nobody ever expected a state government to act in such a fashion. But a First Amendment violation? We’ll have to wait and see.