Less than a month after New York Governor Andrew Cuomo issued a press release directing New York insurance companies to “review” their relationship with the NRA, the National Rifle Association has sued the Governor, New York State Department of Financial Services (“DFS”), and DFS Superintendent Maria T. Vullo on First Amendment grounds.
The NRA claims that Cuomo’s guidance letters were accompanied by back-channel communications and targeted enforcement actions that suppressed the free speech of Second Amendment supporters and forced several insurance companies to sever their relationship with the NRA.
“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. “We believe these actions are outside the authority of DFS and fail to honor the principles which require public officials to protect the constitutional rights of all citizens.”
On April 19, 2018, the DFS issued two “guidance letters” encouraging financial institutions to “take prompt actions” to manage “reputational risk” posed by dealings with “gun promotion organizations.” The same day Gov. Cuomo and Superintendent Vullo published a press release reiterating the DFS stance:
“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, and to take prompt actions to manage these risks and promote public health and safety.”
Fearing regulatory retaliation, at least two insurance companies have already ended their partnerships with the NRA and plan to cancel insurance policies with law-abiding New York customers.
“As a direct result of this coercion, multiple firms have succumbed to Defendants’ demands and entered into consent orders with DFS that compel them to terminate longstanding, beneficial business relationships with the NRA both in New York and elsewhere,” the lawsuit notes. “Tellingly, several provisions in the orders bear no relation to any ostensible regulatory infraction. Instead, the orders prohibit lawful commercial speech for no reason other than that it carries the NRA brand.”
The actions of these insurance companies might provide all the evidence the NRA needs to prove that Cuomo’s public stance and private actions have had a chilling effect on the First Amendment rights of pro-2A organizations. As the lawsuit points out, Cuomo and the DFS have “made it clear to banks and insurers that it is bad business in New York to do business with the NRA.”
If the NRA’s lawyers can prove that Cuomo and the DFS discriminated against the organization’s viewpoint by threats of legal sanctions, coercion, persuasion, and intimidation, they may have a chance to win.