Federal judge: suit can go forward against Cuomo over regulatory squeeze

A federal judge has ruled the National Rifle Association can proceed with its First Amendment suit against New York Gov. Andrew Cuomo over his pressure on regulated banks, insurers to cut ties with gun rights advocacy groups like the NRA. “U.S. District Judge Thomas McAvoy questioned Cuomo’s claim that his messages about the wisdom and propriety of providing financial services to the NRA amount to nothing but legitimate regulatory oversight and protected government speech.” [Jacob Sullum and background, Eugene Volokh] “It is well-established under binding federal appeals court decisions that government officials like Cuomo are not allowed to pressure organizations or businesses to cut off services to someone because of their political stances or expression — even when the government official uses informal pressure as opposed to explicit threats. (See, e.g., Rattner v. Netburn, 930 F.2d 204 (2d Cir. 1991)).” [Hans Bader] Earlier here, here and here (ACLU files amicus brief defending NRA’s rights), etc.


  • What ought to be considered as a remedy is a permanent injunction backed up by jail time and personal fines. This is an appalling abuse. Cuomo doesn’t like the political stances of the NRA, so he is squeezing the NRA through regulators’ discretion. The other thing that should be considered–a regulatory death penalty. If regulators egregiously abuse power, then they don’t get to be regulators anymore, and an agency is sufficiently rife with abusers or the abuse goes to high levels or is egregious enough, the regulator should lose all power to regulate.

    In a free society, you simply cannot have the abuse that is happening here. And that abuse is all the more dangerous because it can be hidden from the victims. To choose a regulatory response based on political views is un-American.

    • Well said, it’s abhorrent to democracy the idea that the government could target for harassment (through baseless investigations) people for doing business in a neutral manner with their political opponents. The principle that protections from government abuse include attempts to create a private cause of action and use the courts to enforce undemocratic mandates.

      That said I don’t think a “regulatory death penalty” is a workable idea, rather, New York’s regulators should be placed under a federal consent decree requiring a neutral outside party to review their actions for impermissable 1st amendment violations.