FOR THE RECORD

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NRA Lawsuit Over “Blacklisting Campaign” to Proceed

March 15, 2021 – The NRA’s lawsuit against New York Gov. Andrew Cuomo, former New York State Department of Financial Services (DFS) Superintendent Maria Vullo, and the DFS continues to move forward.

 

In a long-awaited decision, dated March 15, 2021, the Hon. Thomas J. McAvoy, sustained, yet again, the crux of the NRA’s lawsuit – its First Amendment claims. The remaining claims in this important case are: (1) the First Amendment claims against Gov. Cuomo in his individual capacity, (2) the First Amendment claims against Ms. Vullo in her individual capacity, and (3) the First Amendment claims for injunctive and declaratory relief against Ms. Vullo in her official capacity.

 

The NRA’s lawsuit arises from a series of public statements and enforcement actions by Gov. Cuomo and New York’s chief financial regulator, the DFS, during 2017 and 2018.  At Gov. Cuomo’s direction, in April 2018, the DFS sent “guidance letters” to banks and insurance companies. It wrote, “The Department encourages its insurers to continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations… The Department encourages regulated institutions to review any relationships they have with the NRA or similar gun promotion organizations, and to take prompt actions to managing these risks and promote public health and safety.”

 

The NRA believes and alleges that these actions amount to a “blacklisting campaign” — an effort to intimidate the NRA’s potential business partners, choke off its access to financial services, and retaliate against it based on the viewpoint of its speech. The NRA commenced its lawsuit on May 11, 2018, in the U.S. District Court for the Northern District of New York.

 

In today’s opinion, Judge McAvoy writes, “…it was plausible to conclude that the combination of Defendants’ actions, including Ms. Vullo’s statements in the Guidance Letters and Cuomo Press Release as well as the purported ‘backroom exhortations,’ could be interpreted as a veiled threat to regulated industries to disassociate with the NRA or risk DFS enforcement action.”

 

This decision reaffirms that all public officials, even Gov. Cuomo and Ms. Vullo, are accountable under the First Amendment. It will allow the NRA to pursue discovery and bring important evidence to light – to expose the communications and coordinated efforts of New York officials and others to harm the NRA and impinge its Constitutional freedoms. The message is clear:  the NRA will stand up to those who unlawfully interfere with its Second Amendment advocacy. 

 

The NRA’s First Amendment lawsuit has become among the most high-profile cases of its kind. Numerous legal experts and constitutional scholars, including the ACLU, have supported the NRA. In August 2018, the ACLU filed an amicus brief supporting the NRA and its legal action.

 

At that time, David Cole, national legal director of the ACLU, wrote: “Because we believe the governor’s actions, as alleged, threaten the First Amendment rights of all advocacy organizations, the ACLU on Friday [August 24, 2018] filed a friend-of-the-court brief supporting the NRA’s right to have its day in court.”

READ THE ORDER.