by Mitch Kokai
Senior Political Analyst, John Locke Foundation
New York’s Andrew Cuomo is engaging in a deliberate campaign to use state power to drive the NRA out of business. It’s using a combination of consent decrees and warning letters directed at financial institutions to coerce them into cutting of business relationships with the NRA.
Cuomo’s intentions aren’t hidden. He’s on a crusade. “If I could have put the NRA out of business, I would have done it 20 years ago,” he said earlier this week. He followed up with this pithy statement: “I’m tired of hearing the politicians say, we’ll remember them in our thoughts and prayers. If the NRA goes away, I’ll remember the NRA in my thoughts and prayers.”
Clever. But when statements like this are accompanied by state action, there’s another word that applies — unconstitutional.
New York’s lawyers argue that the state’s letters represent nothing more than government speech. The NRA and the state are engaged in nothing more than a frank exchange of ideas. But while the government does have broad power to engage in its own advocacy, that power has its limits. As the Second Circuit has recognized, there is a difference between “permissible expressions of personal opinion and implied threats to employ coercive State power to stifle protected speech.” When “comments of a government official can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official’s request,” a First Amendment claim exists.