SAN FRANCISCO, CA – September 9, 2019 The National Rifle Association (NRA) has sued the City and County of San Francisco, and the Board of Supervisors individually and in their official capacity.
The Board of Supervisors includes Vallie Brown, Sandra Lee Fewer, Matt Haney, Rafael Mandelman, Gordon Mar, Aaron Peskin, Hillary Ronen, Ahsha Safai, Catherine Stefani, Shamann Walton and Norman Yee.
The complaint against the City and County of San Francisco states:
“the government cannot discriminate against citizens based on the viewpoint of their political speech. When this principle is followed, the United States is a beacon to lovers of freedom around the world – to those who fear sham prosecutions, blacklisting, or worse at the hands of authoritarian regimes. When this principle is infringed, all Americans should rise to defend it.
This lawsuit arises from Resolution No. 190841 which was adopted on September 3, 2019 unanimously. This resolution calls for government officials to “assess the financial and contractual relationships our vendors and contractors have with [the NRA], and to take every reasonable step to limit those entities who do business with the City and County of San Francisco from doing business with [the NRA].” The resolution labels the NRA a domestic terrorist organization and would effectively make people who are vendors (contractors) or wish to be vendors (contractors) to choose between supporting the NRA or doing business with San Francisco City and County.
This suit alleges three causes of action:
- Violation of NRA’s First and Fourteenth Amendment Rights under 42 U.S.C § 1983 by the establishment of an implicit censorship regime (as to all defendants).
- Violation of the NRA’s First and Fourteenth Amendment Rights under 42 U.S.C. § 1983 by retaliating against the NRA based on its speech (as to all defendants).
- Violation of the NRA’s right to freedom of association protected by the First and Fourteenth Amendment under 42 U.S.C § 1983 (as to all defendants).
When it calls the NRA a domestic terrorist organization in the resolution, the complaint alleges, this goes directly against the stated purposes of the NRA. Founded in 1871 by two Union officers in New York, the association was created to promote marksmanship. These officers believed that if the troops in the North could have shot as well as the Southern troops, the Civil War would have been shorter.
The first purpose of the NRA is “to protect and defend the Constitution,” per the complaint. Their members include veterans, first responders and law enforcement officials. To be called a terrorist is a personal affront to the five million members. The NRA spends tens of millions of dollars annually to produce and distribute pamphlets etc. to advocate their views to retain the Second Amendment, to assist its members to engage in dialogue locally and to educate the public about issues related to the Second Amendment.
On July 30, 2019, Stefani introduced the resolution. As stated in the complaint, Stefani has a history as an anti-gun activist. Her website describes gun violence prevention, she serves as a spokesperson on multiple anti-gun advocacy groups and her twitter feed is mostly against the NRA. In the commentary about this resolution, she has been quoted as saying, “it is time to rid this country of the NRA,” and also characterizes the NRA as the “only organization that is really continuing to stand in the way of reform.”
While designating the NRA as a domestic terrorist organization, the resolution requires that all vendors and contractors who have a relationship with the NRA, be banned from doing business with the City and County of SF.
When the resolution was passed, third party commentators even raised concern about the First Amendment violations. September 5, 2019, Washington Post columnist Henry Olsen stated, “The NRA… does not advocate, fund or support violence, nor does it try to create a ‘climate of fear’ to advance its policies. It does support an expansive view of gun rights, but that is not a terrorist act – unless political disagreement is now a criminal offense.” The NRA is not a ‘domestic terrorist organization’ He even recognized the “McCarthyist elements” of the Resolution.
Michael McGough, a senior editorial writer of the Los Angeles Times even denounced the resolution as “irresponsible for several reasons.” The NRA is many things but it is not a terrorist organization. He states that the only intent of the resolution is to blacklist contractors who also deal with the NRA.
Jonathan Turley, law professor at George Washington University states in the Hill that the resolution “sets the power of a government against a set of citizens solely on the basis of their politics. This is called ‘viewpoint discrimination‘ in First Amendment law and is unconstitutional.” The NRA as a terrorist organization?
The complaint states that one website took the resolution to heart and published the names and home addresses of private persons who had donated to the NRA.
This resolution is a violation of freedom of association because it forces people to publicly disclose affiliations which may be disfavored by some but has no pertinence to the vendors’ ability to perform the requested services.
In fact the complaint states this resolution is only designed to target and discriminate a lawful organization and its members solely because the government doesn’t approve of its views or speech. The government cannot use its powers solely to stifle or punish any disfavored speech. This is a violation of the First Amendment wherein it is not specifically tied to a compelling, significant or legitimate government interest.
This conduct would serve to dissuade a person of “ordinary fairness” (a reasonable person) from continuing to speak out against gun control. This is what the resolution seeks to do, per the complaint.
The NRA has a long history of political advocacy, a position with which Stefani disagrees. However, it is the NRA’s right to express their protected views. Since the Board has control over who does or doesn’t receive a contract to do business with the City and County of SF, this passage of law has effectively established informal censorship. The Board’s actions have constituted a threat to use coercive municipal power against any members or businesses doing any business with the NRA and can be reasonably interpreted in that manner.
According to the complaint, the Board has disparaged the NRA, its members and supporters, and the resolution has been proposed solely because the Board disagrees with the NRA’s advocacy of the Second Amendment.
This is a retaliatory threat against the First and Fourteenth Amendment due to the portion of the resolution requiring all NRA members to disclose their membership or association, if they want to do business with SF. This puts them in a position where they must choose between maintaining a relationship with the NRA or keeping or obtaining any government contracts. The complaint states that on its face, this is an intention to remove the NRA from any public debate over gun control by reducing their funding or ability to advocate for Second Amendment rights. This requires a disclosure about an individual’s personal beliefs or speech.
Such a requirement would cause the reasonable person to stay away from exercising their rights for advocacy of the Second Amendment. Who would want to continue to engage in something that is targeted by the government?
The resolution also targets a person’s right of freedom of association that is protected by the First Amendment through the Fourteenth Amendment. This freedom is the right of every citizen to engage in an expressive association which advances a person’s beliefs and ideas. The resolution would limit the NRA and its members and supporters from their ability to engage political advocacy. This would put in doubt the NRA’s ability to continue as an ongoing concern.
The resolution would go into effect if it is not vetoed by Mayor Breed.
The NRA, through its suit asks for an order to “permanently enjoin the Defendants from any enforcement of, or taking any official action pursuant to the Resolution.” The suit also calls for attorneys’ fees and costs of the lawsuit.
A copy of the NRA complaint is here.
This story is ongoing and will be updated as it moves through the courts.