Courts have never required plaintiffs to demonstrate that the government directly attempted to suppress their protected expression in order to establish First Amendment retaliation, and they have often upheld First Amendment retaliation claims involving adverse economic action designed to chill speech indirectly.
Were it otherwise, the First Amendment would prohibit the government from pressuring a newspaper to remove a speaker’s advertisement, but it would allow the government to bankrupt the speaker by pressuring its business partners to terminate their contracts. That absurd result has no foundation in the law.
American Civil Liberties Union Foundation
August 24, 2018
BRIEF OF [PROPOSED] AMICUS CURIAE AMERICAN CIVIL LIBERTIES UNION IN SUPPORT OF THE PLAINTIFF’S OPPOSITION TO THE DEFENDANTS’ MOTION TO DISMISS
[A short version of the context is:
A campaign by New York Democratic Gov. Andrew Cuomo to crack down on the National Rifle Association and similar groups is facing its first big legal test, with a federal judge expected to decide soon whether to allow a challenge to go forward.
Cuomo’s administration has asked Judge Thomas McAvoy of the U.S. Northern District of New York to throw out a First Amendment lawsuit by the NRA that claims the policy restricting financial activity with pro-gun organizations amounts to viewpoint discrimination.
The judge heard arguments on the motion to dismiss on Sept. 10. The decision, whatever it may be, will have far-reaching ramifications for free-speech and gun rights, the limits of financial regulation and possibly even the 2020 presidential contest.
The case has prompted an unusual alliance. The liberal American Civil Liberties Union, despite its support for gun control, filed a friend of the court brief in defense of the free-speech rights of the NRA.
According to the ACLU what the state of New York is claiming is that since the state didn’t tell the NRA they couldn’t exercise their right to speech the NRA does not have a First Amendment claim to push in court. Nevermind that the state told banks and insurance companies they should “consider the risk to their reputations” if they did business with the NRA. Shortly after that they were slapped with fines costing them millions of dollars.
Governor Cuomo is exceedingly dimwitted if he believes the argument he is making. I’m wondering if his comprehension would improve if the banks and insurance companies were to refuse to do business with any entity which sold food or water which found its way to the governor or his family.—Joe]