I’ve been critical of the ACLU lately but its amicus-brief defense of the NRA’s First Amendment rights against New York Gov. Andrew Cuomo’s strong-arm use of insurance and bank regulation is vital, timely, and right:
Public officials are, of course, free to criticize groups with which they disagree. But they cannot use their regulatory authority to penalize advocacy groups by threatening companies that do business with those groups. And here the state has admitted, in its own words, that it focused on the NRA and other groups not because of any illegal conduct, but because they engage in “gun promotion” — in other words, because they advocate a lawful activity.
Substitute Planned Parenthood or the Communist Party for the NRA, and the point is clear. If Cuomo can do this to the NRA, then conservative governors could have their financial regulators threaten banks and financial institutions that do business with any other group whose political views the governor opposes. The First Amendment bars state officials from using their regulatory power to penalize groups merely because they promote disapproved ideas.
My post from May on the topic is here. More on the ACLU brief: Dan M. Clark, New York Law Journal; Declan McCullagh.
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Can hardly wait for the SPLC to identify the NY ACLU has a “hate group.”
[…] Last month we noted that the ACLU had filed a brief on the side of the NRA in its regulatory-retaliation First Amendment suit against New York Gov. Andrew Cuomo. The brief “strikes me as quite sound legally,” writes Eugene Volokh, who quotes and annotates its text. But the action has roused passionate opposition within the organization itself, reports Mark Joseph Stern at Slate. For example, the ACLU’s New York affiliate declined to join the brief and its officials issued a public statement critical of it. Among their arguments: the NRA “has enormous resources and is fully able to present its First Amendment claim.” Others argue that the dispute is at least in part fact-intensive and does not rest entirely on First Amendment issues, since Cuomo had denounced a particular insurance product marketed by the NRA as unlawful — although the governor’s own statements make clear that his call for regulators to squeeze the group’s finances went beyond that, and indeed included a call for them to put the squeeze on groups with advocacy missions similar to the NRA’s. Yet other factions within the ACLU charge that for it to side with the NRA is to advance “white supremacy.” More: Scott Greenfield. […]