The San Francisco Board of Supervisors Is About to Get a Lesson in the First Amendment’s Freedom of Speech Guarantee

Sep. 11, 2019
Bob Adelmann

San Francisco Supervisor Catherine Stefani wanted to teach the NRA a lesson, so she crafted a resolution designed to punish the organization. It passed the Board of Supervisors unanimously last week, declaring that the NRA is a "domestic terrorist organization." She said that "they continue to stand in the way of gun violence reform and people are dying because of it." She added:

The NRA exists to spread dis-information and knowingly puts guns into the hands of those who would harm and terrorize us. The NRA has it coming to them, and I will do everything I possibly can to call them out on what they are, which is a domestic terrorist organization.

A simple resolution wouldn't have raised much trouble for the board of supervisors as it falls well within the purview of the First Amendment: "Congress shall make no law … abridging the freedom of speech…." And the NRA has long supported the Constitution and its Bill of Rights.

But that wasn't enough for Stefani. She had to reach for more. The board resolved 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.

In filing a lawsuit against the city on Monday, the NRA's lead attorney declared that the board's "action is an assault on all advocacy organizations across the country. There can be no place in our society for this manner of behavior by government officials. Fortunately, the NRA, like all U.S. citizens, is protected by the First Amendment."

In its opening statement, the lawsuit refers to a landmark Supreme Court case ruling from 1943 that has already settled the matter: West Virginia State Board of Education v. Barnette. The court concluded:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.


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The lawsuit states that the resolution "is a frivolous insult – but San Francisco's actions [in seeking to limiting entities from doing business with the NRA] pose a nonfrivolous constitutional threat." The lawsuit went further:

The Resolution intentionally violates the First Amendment speech and association rights of the NRA and its members. Defendants' conduct would chill a person of ordinary firmness from continuing to speak against gun control, or from associating expressively or commercially with the NRA; these ongoing constitutional violations constitute irreparable injuries.

There's another Supreme Court ruling that also blocks San Francisco from limiting its entities from doing business with the NRA: Board of County Commissioners, Wabaunsee County, Kansas v. Umbehr, decided in 1996. Keen Umbehr owned a trash hauling business and a sharp tongue. After suffering much criticism from him, the commissioners voted to terminate his contract with the county. As the Supreme Court ruled in that case:

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….

We recognize the right of independent government contractors not to be terminated for exercising their First Amendment rights.

As Jacob Sullum, writing for Reason, pointed out, the board's resolution, if upheld, would have a chilling effect on the freedom of speech not only of the NRA but of any person in any way supportive of the organization who has even the most tenuous of ties to the city of San Francisco. He wrote:

Imagine a printer who does work for the NRA at a discounted rate because he agrees with the organization's goals. If the city stopped hiring the printer because of his "financial and contractual relationships" [language included in the resolution] with the NRA, it would likewise be discriminating against him based on his political views.

Stefani and her board wanted to teach the NRA a lesson for supporting the Second Amendment by violating the group's First Amendment right to free speech. She and her board are shortly going to learn an important lesson: a piece of parchment guaranteeing precious rights has no power in itself to protect and defend those rights. It's when a court understands its judicial role that that piece of parchment becomes an impenetrable wall that keeps troublemakers like Stefani and her board at bay.

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Sources:

Newsmax: NRA Sues San Francisco Over Terrorist Declaration

The New American: San Francisco Declares NRA "Domestic Terrorist Organization," Vows to Punish It

The New York Times: N.R.A. Files Suit Against San Francisco

DocumentCloud.org: The lawsuit

Reason: San Francisco's Anti-NRA Policy Could Be Unconstitutional

BOARD OF COUNTY COMMISSIONERS, WABAUNSEE COUNTY, KANSAS v. UMBEHR (1996)

West Virginia State Board of Education v. Barnette

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