When the American Civil Liberties Union filed an amicus brief supporting the National Rifle Association’s free speech arguments against the state last week, one organization was noticeably absent: the New York Civil Liberties Union.
The New York state branch was silent on the NRA’s litigation even as the national civil-liberties watchdog has accepted the gun rights advocacy group’s lawsuit as rooted in its exercise of First Amendment claims.
Now NYCLU officials have said they don’t share the ACLU’s view of the NRA lawsuit. In a statement, NYCLU executive director Donna Lieberman said they are skeptical of the gun rights group’s complaint.
“The New York Civil Liberties Union, the New York state affiliate of the ACLU, elected not to join the ACLU’s brief in support of the NRA’s contentions,” Lieberman said. “The NYCLU’s decision rested, in part, on a deep skepticism of the NRA’s factual claims and on the concern that critical allegations in the complaint are contested.”
A spokeswoman for the NYCLU did not respond to an inquiry about which claims or allegations in the NRA’s lawsuit were problematic for the organization.
The ACLU supports the NRA based on its free speech claims.
The NRA has argued that a letter sent to banks and insurers in April from Department of Financial Services Superintendent Maria Vullo was intended to cause a financial strain on the association. The letter warned those companies of the “reputational risks” of doing business with the NRA.
The association said it has had trouble obtaining insurance and basic banking services since Vullo’s letter, which could cause significant economic hardship in the future. That will limit its ability to advocate on behalf of gun owners, which the NRA claimed is an attack on its free speech rights.
But legal precedent may actually obstruct the NRA’s claims against Vullo and New York Gov. Andrew Cuomo, according to Erwin Chemerinsky, the dean of Berkeley Law School.
“My sense is that what’s involved here is speech by the insurance commissioner of New York and I don’t think that speech by itself can be found to violate the First Amendment,” Chemerinsky said.
Take the case of Penthouse International v. Meese, for example. In that case, from the early 1990s, U.S. Attorney General Edwin Meese’s Commission on Pornography had written to store owners who sold Penthouse that they could be publicly named in a government report for selling the magazine. Penthouse claimed the letter implied that stores should stop selling the magazine, which they said violated its free speech rights. The D.C. Circuit sided with the government, saying the commission’s actions did not violate the First Amendment rights of Penthouse. The U.S. Supreme Court declined to hear the case.
“You can’t say that government speech violates the First Amendment,” Chemerinsky said. “But also, even before these cases, the Supreme Court said that when the government is speaking— even if it might affect the speech of others—it doesn’t violate the First Amendment.”
The decision in Penthouse was clear that since the government was not explicitly threatening to sanction the store owners, it was not threatening anyone’s free speech rights.
“At least when the government threatens no sanction—criminal or otherwise—we very much doubt that the government’s criticism or effort to embarrass the distributor threatens anyone’s First Amendment rights,” the decision said.
The same thought could be applied to Vullo, said Peter Kochenburger, executive director of the insurance LL.M program and deputy director of the Insurance Law Center at the University of Connecticut School of Law. From the state’s perspective, her letter could be seen as an effort by DFS to prevent financial losses from associating with the gun lobby group.
“[The letters] talk about the reputation of your company, how it might hurt the company overall,” Kochenburger said. “Given the shootings and the NRA’s response I don’t think it’s too much of a stretch to say the New York department has every right under its mission and policy to issue this letter, which again has no binding effect.”
The state, separately, fined and entered into consent orders with two insurers in May that sold an NRA-marketed product called Carry Guard, which provided insurance for legal fees, therapy and other costs associated with someone’s use of a gun.
DFS claimed Carry Guard was illegal because it did not meet the state’s minimum liability requirements and “New York state law prohibits insurance coverage to defense costs arising out of a crime.” The consent orders were the result of a state investigation into Carry Guard before Vullo’s letter in April.
The companies, at that point, had already announced they would stop selling Carry Guard. They also agreed to stop doing business with the NRA altogether as part of the consent orders. Lockton Cos. had previously sold other insurance products for the NRA in New York outside of Carry Guard.
Kochenburger said that’s not necessarily unusual, and that the companies also had a hand in their agreements with the state.
“The key is, it’s a consent order. Chubb and Lockton would both have every right to contest violations to what they’ve done,” Kochenburger said. “In consent agreements you often get companies to agree to do things they wouldn’t necessarily have to do under the law.”
The NRA has argued that the scope of the consent orders was unnecessary and irrelevant to the state’s regulatory authority. That point was also made in the ACLU’s brief last week.
“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,” the brief said.
William Brewer, partner at Brewer, Attorneys & Counselors in Dallas, is lead counsel for the NRA in the case. Adrienne Kerwin is leading the case for the New York state Attorney General’s Office. The next scheduled hearing in the case is Sept. 10 on the state’s motion to dismiss the lawsuit.