The American Civil Liberties Union moved to file a brief on Friday opposing the state’s motion to dismiss the National Rifle Association’s lawsuit against New York Gov. Andrew Cuomo and the state’s top financial regulator.
In a proposed filing with U.S. Magistrate Judge Christian Hummel of the Northern District of New York, the ACLU said the gun-rights lobby’s lawsuit against the state should continue because it addresses free speech rights.
That point may explain an unexpected convergence of the generally liberal ACLU and the right-leaning NRA.
The NRA’s lawsuit against Cuomo and Department of Financial Services Superintendent Maria Vullo, filed in May, said the officials conspired to coerce financial institutions to sever business ties with the association, causing it to suffer financial losses. It further claimed the state’s alleged pressure on companies to cut ties with the gun lobby group infringed on their ability to advocate for gun owners and therefore violated their free speech rights.
The ACLU strongly sided with the NRA’s argument in its filing on Friday. The brief was written by Brian Hauss, an attorney with the ACLU’s New York office.
“If true, those allegations represent a blatant violation of the First Amendment,” the proposed brief said. “Although public officials are free to express their opinions and may condemn viewpoints or groups they view as inimical to public welfare, they cannot abuse their regulatory authority to retaliate against disfavored advocacy organizations and to impose burdens on those organizations’ ability to conduct lawful business.”
William Brewer, partner at Brewer, Attorneys & Counselors, is lead counsel for the NRA in the case. He said on Friday that the ACLU’s brief backs up their argument against the Cuomo administration.
“The ACLU’s amicus brief is testament to what we have contended all along—Gov. Cuomo and the DFS violated the First Amendment rights of the NRA,” Brewer said. “The ACLU is a leading voice on legal and constitutional issues, and we welcome their advocacy in this important case.”
Vullo fired back against the ACLU in a statement on Friday, saying the organization is “simply wrong on the facts and law.”
“We strongly disagree with the ACLU’s position, which is devoid of both the facts of this case and an understanding of the role of the Department of Financial Services in regulating the insurance and banking industries in the state of New York for the protection of our markets and consumers,” Vullo said.
“The NRA aggressively marketed, without a license, an illegal insurance product that would permit intentional criminal conduct to be covered by insurance. There can be no legitimate dispute on this issue—and the broker and insurer agreed to resolve these violations of New York insurance law, while the NRA has chosen instead to pursue a contrived litigation strategy to cover up its own law violations,” Vullo continued.
The state has argued the NRA’s lawsuit is a retaliatory effort against DFS for prohibiting two insurers from selling an insurance product affiliated with the NRA.
The product, called Carry Guard, was marketed by the NRA and sold through insurance companies in New York until this year. Carry Guard provided insurance for legal fees, therapy, and other costs associated with someone’s use of a gun.
According to the state, that kind of insurance is illegal to sell in New York because “New York state law prohibits insurance coverage to defense costs arising out of a crime.” DFS fined two companies in May for offering the product last year. Those companies also agreed in consent orders with the agency to stop doing business with the NRA altogether.
The NRA has argued the lawsuit is about more than Carry Guard. That was a catalyst for the litigation, according to their complaint, but their claims date back to earlier in the year.
Cuomo has never been a fan of the NRA. He passed one of the country’s strictest gun laws in 2013 following the shooting at Sandy Hook Elementary School in 2012. He’s also advocated for stronger gun laws since that legislation passed.
This year, the Cuomo administration amped up its opposition to the NRA following the shooting at Marjory Stoneman Douglas High School in Parkland, Florida. Two months after the shooting, Cuomo directed Vullo to write a letter to the state’s financial institutions warning them of the reputational risks of doing business with the NRA. DFS regulates the state’s financial institutions.
“The department encourages its chartered and licensed financial institutions to continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations, if any, as well as continued assessment of compliance with their own codes of social responsibility,” Vullo wrote in the letter. A similar line was included in a letter to insurers.
The NRA claimed in a filing last month that, because of that letter, it has been unable to obtain certain insurance coverage, which could harm it financially in the future. It has not been able to secure media liability coverage, for example, which it said could mean an end to its livestream television channel available to members.
The ACLU said in its proposed brief on Friday that the topic of the organization’s advocacy should not change the state’s behavior toward that group.
“It is important to note that, however controversial it may be, ‘gun promotion’ is core political speech, entitled to the same constitutional protection as speech advocating for reproductive rights, marijuana legalization, or financial deregulation,” the proposed brief said.
The state argued in a previous filing that the state’s actions, which included press releases, Vullo’s letter, and consent orders with insurers, were protected government speech and were not “implied threats to employ coercive state power.”
Brewer, meanwhile, filed his own brief opposing the state’s motion to dismiss on Friday. He used Cuomo’s own advocacy earlier this month to support his claim that the state is trying to financially harm the NRA and suppress their free speech rights.
He cited public statements Cuomo made following the amended complaint by the NRA that claimed potential economic hardship for the association because of the state’s actions.
“The regulations NY put in place are working,” a post on Cuomo’s official Facebook page said. “We’re forcing the NRA into financial jeopardy. We won’t stop until we shut them down.”
In another instance, Cuomo used the hashtag #BankruptTheNRA, Brewer claimed in his brief.
The ACLU does not mention Cuomo’s public statements in its brief, but it still argues that dismissing the lawsuit now could set a dangerous precedent in future free-speech cases involving public officials and advocacy groups, regardless of political party.
“If the NRA’s allegations were deemed insufficient to survive the motion to dismiss, it would set a dangerous precedent for advocacy groups across the political spectrum,” the proposed brief said. “Public officials would have a readymade playbook for abusing their regulatory power to harm disfavored advocacy groups without triggering judicial scrutiny.”
Adrienne Kerwin is leading the case for the state Attorney General’s Office. The next scheduled hearing in the case is Sept. 10 on the state’s motion to dismiss the lawsuit.