The National Rifle Association of America ( NRA ) has 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 group 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 group. “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.”
Among other things, the lawsuit cites a pair of “guidance” letters issued on April 19, 2018, by the DFS to the CEOs of banks and insurance companies doing business in New York. Styled as regulatory “risk management” advisories, the letters encourage institutions to “take prompt actions” to manage “reputational risk” posed by dealings with “gun promotion organizations.” The same day, Cuomo issued a press release in which Vullo directly urged “all insurance companies and banks doing business in New York” to “discontinue their arrangements with the NRA.”
The lawsuit claims that the “guidance” letters were accompanied by back-channel communications and targeted enforcement actions, which further reinforced the Cuomo administration’s message that it is bad business in New York to do business with the the Second Amendment group.
The lawsuit explains that the DFS mandate – preceded by an “investigation” orchestrated by gun-control activists into insurance programs sponsored by the NRA – has already caused several insurance companies to sever relationships with the NRA and to plan to cancel the insurance policies of law-abiding New York consumers. According to the complaint, the directive of Cuomo and Vullo has had its intended effect – to advance Cuomo’s longstanding opposition to gun-rights supporters and to distort insurance markets in the service of a political agenda.
The lawsuit says, “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. 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.”
On May 2, 2018 and May 7, 2018, Lockton Companies, LLC and Chubb Ltd., respectively, announced they will pay millions of dollars in fines to DFS and cease doing business with the NRA – for no other reason than many of the insurance programs with which they are associated carry the NRA brand. On May 9, 2018, Lloyd’s of London announced that it is directing insurance underwriters to terminate any existing partnerships [with the NRA].
The lawsuit explains that these outcomes are the culmination of years of political activism by Cuomo against the NRA and gun rights organizations. As recently as April 20, 2018, Cuomo called the NRA an “extremist organization” and urged New York companies “to revisit their ties to the NRA and consider their reputations…”
Citing the Supreme Court’s landmark Bantam Books, Inc. v. Sullivan case, the lawsuit argues that “viewpoint discrimination applied through ‘threat[s] of invoking legal sanctions and other means of coercion, persuasion, and intimidation’ violates the Constitution where, as here, such measures chill protected First Amendment activities.”