Last week San Francisco supervisors voted unanimously to declare the NRA a “domestic terrorist organization”. Monday evening, the NRA responded with a lawsuit in federal court arguing the group’s 1st and 14th Amendment rights are being violated by the city council’s actions.
According to the lawsuit, the NRA wants a federal judge to block the city from moving forward with the resolution, which has yet to be signed by Mayor London Breed. The organization is asking that the judge issue an order
“to immediately cease and refrain from engaging in any conduct or activity which has the purpose or effect of interfering with the NRA’s exercise of the rights afforded to it under the First Amendment of the United States Constitution; (2) to immediately cease and refrain from engaging in any conduct or activity which has the purpose or effect of interfering with, terminating, or diminishing any of the NRA’s memberships, sponsorships, contracts and/or business relationships with any persons, business or organizations; and (3) to immediately cease and refrain from any enforcement of, or from taking any official action pursuant to, the Resolution”
The litigation filed by the NRA also seeks a jury trial (which would be interesting, given the fact that the trial itself would consist of jurors from the San Francisco area) and injunctive relief, meaning the NRA wants the city to pay for its declaration. Attorneys for the 2nd Amendment group contend that the resolution passed by the supervisors will have a chilling effect on the NRA and its members.
The NRA’s nearly five million members include countless military veterans, first responders, and law enforcement officers who have risked everything to protect Americans from terrorism. Therefore, the Resolution’s “terrorist” designation is a frivolous insult—but San Francisco’s actions pose a nonfrivolous constitutional threat. In the face of recent, similar blacklisting schemes, financial institutions have expressed reluctance to provide bank accounts for disfavored political groups, and city contractors fear losing their livelihoods if they support or even work with the NRA. Where, as here, the government’s conduct would “chill a person of ordinary firmness” from continuing to engage in protected speech or association, the First Amendment mandates swift relief.
The lawsuit notes that liberal columnists from the Washington Post and the Los Angeles Times both criticized the resolution passed by San Francisco, in part because it doesn’t just call the NRA a “domestic terrorist organization”, but directs the city to take steps to blacklist contractors that have any connection or ties to the organization.
The senior editorial writer of the Los Angeles Times, Michael McGough, began his September 5, 2019 opinion piece by arguing the NRA “richly deserves criticism for its role in preventing the enactment of sensible gun-control legislation.” But McGough had no difficulty denouncing the Resolution as “irresponsible for several reasons.” Among them was the Resolution’s intent “to blacklist contractors who deal with the NRA” that he astutely noted was “problematic from a 1st Amendment perspective.”
That action item could be bad news for the city. It’s one thing for grandstanding politicians to smear millions of law-abiding Americans as terrorists, but it’s another thing entirely to try to direct city offices to take steps to avoid working with contractor who might be an NRA member or even attended a Friends of NRA dinner. As the lawsuit argues, it’s a clear violation of the 1st Amendment.
While it might be an acceptable exercise of the government’s power to condemn the NRA, or even lob undignified invective at millions of law-abiding gun owners, the government cannot apply its powers in a targeted, adverse manner against those with whom it disagrees—and the government certainly cannot do so in order to stifle or punish disfavored speech. Such conduct unambiguously violates the First Amendment, especially where, as here, it is not tied to any compelling, significant or legitimate government interest.
So far there’s been no official reaction from the city of San Francisco or its attorneys, and we’re not likely to see a response brief for several weeks. In the meantime, Mayor Breed has a few days left to veto the resolution or it will go into effect with or without her signature.