San Francisco’s Anti-NRA Stunt Isn’t Just Misguided, It’s Unconstitutional

Punishing businesses that associate with the NRA is a form of unconstitutional viewpoint discrimination.

Wayne LaPierre, Executive Vice President and Chief Executive Officer of the NRA, at the NRA Annual Meeting / Getty Images

The San Francisco Board of Supervisors stirred controversy after labeling the National Rifle Association a "domestic terrorist organization" in a resolution. That language is more tiresome and lame than it is actually dangerous. Law enforcement officers in San Francisco and elsewhere will just roll their eyes and focus on targeting actual terrorists.

You could argue this sort of demonization might lead to violence from private parties, akin to the July terror attack on an ICE facility carried out by a man citing Rep. Alexandria Ocasio-Cortez's (D., NY) "concentration camp" talking point. But if any would-be terrorist is out there planning to attack the offices of the NRA, uh, Godspeed buddy. See you at the 2019 Darwin Awards.

While the "domestic terror" label has spawned the hottest takes, a key aspect of the resolution has escaped public notice. The resolution directs the city to "take every reasonable step to assess the financial and contractual relationships our vendors and contractors have with this domestic terrorist organization" and "take every reasonable step to limit those entities who do business with the City and County of San Francisco from doing business with this domestic terrorist organization."

This language is more than misguided—it's illegal. The leaders of San Francisco are free to declare loudly and proudly that they hate the NRA's guts. When they start punishing individuals and businesses who associate with the group, however, they've crossed the line into unconstitutional viewpoint discrimination.

In February, Los Angeles passed a resolution that required city contractors to disclose any dealings or sponsorships with the NRA. Despite the relatively benign framing, its sponsor openly admitted the resolution was intended to get "numerous video streaming services to end their commercial affiliation and contractual partnership with the NRA and NRATV." The NRA sued in response and has already won its first round in court. District Judge Stephen Wilson rejected the city's argument that targeting business arrangements with the NRA did not raise free speech concerns.

"That is rejected," he said. "It is expressive, so there is a First Amendment issue."

That is a crucial finding. In Board of County Commissioners v. Umbehr, the Supreme Court ruled that the "First Amendment protects independent contractors from the termination or prevention of automatic renewal of at-will government contracts in retaliation for their exercise of the freedom of speech." In O'Hare Truck Service, Inc. v. City of Northlake, the Court likewise ruled that contractors could not be retaliated against for "the exercise of rights of political association or the expression of political allegiance." Under these precedents, it is extremely difficult to see Los Angeles prevailing on the merits.

In its own resolution, San Francisco has already given the game away. It punishes contractors who associate with the NRA because it is a "terror organization," but what is their basis for that determination? Well, the NRA "musters its considerable wealth and organizational strength to promote gun ownership and incite gun owners to acts of violence"; it "spreads propaganda that misinforms and aims to deceive the public about the dangers of gun violence"; it "promotes extremist positions, in defiance of the views of a majority of its membership and the public"; and "through its advocacy [it] has armed those individuals who would and have committed acts of terrorism."

"Promoting gun ownership" is protected speech. "Incitement" is protected speech except in exceedingly rare cases. "Propaganda" is protected speech. "Misinformation" and "deceiving the public" is protected speech, again, outside of rare cases. "Promoting extremist positions" is protected speech. "Advocacy" is protected speech. Everything San Francisco cites to justify active government intimidation of a private party and its associates is protected speech.

The real crime the NRA committed in the eyes of San Francisco is right there in the text: "defiance of the views of a majority of … the public." Well, that's their right, and if the Board of Supervisors doesn't like that it can suck an egg. And if lawmakers persist in this unconstitutional farce, they can expect a spanking in court.