NRA-ties ordinance would fail in court

The Los Angeles City Council unanimously approved an ordinance on Feb. 12 requiring city contractors to disclose any ties they have to the National Rifle Association. Though Mayor Eric Garcetti's signature is still needed before the ordinance becomes official, the ordinance as approved by the city council is already raising constitutionality concerns. Personal views of the NRA aside, there is cause for alarm over the move to require disclosures of affiliation with a particular group or political cause. United States Supreme Court history warns against this kind of requirement. A challenge made to the ordinance, if Mayor Garcetti signs it into law, would likely be successful.

The NRA has already stated its intent to file a lawsuit contesting the proposed ordinance. Notably, it does not prohibit affiliation with the NRA, it only requires disclosure of any affiliation with the NRA. But the implication is clear: The ordinance means to discourage city contractors from supporting the NRA. As Councilmember Mitch O'Farrell stated at the meeting where the ordinance was approved, the feeling among the city council is that the NRA has "been a roadblock to gun safety reform at every level of government now for several decades." The fact that the ordinance lacks an explicit consequence for affiliation with the NRA does not separate it from similar laws that have been struck down on constitutional grounds.

There is a long history of Supreme Court cases finding laws unconstitutional where they require disclosure of affiliation with organizations or political causes. Among the earliest is NAACP v. Alabama from 1958, 357 U.S. 449, where the court struck down the state's demand for membership lists from the NAACP. The state's purpose in requiring the lists was part of an effort to stop the NAACP from conducting further business in Alabama. This discriminatory purpose violated constitutional rights to freedom of speech and assembly.

Two years after NAACP, the Supreme Court made a similar ruling in Shelton v. Tucker, 364 U.S. 479. The challenged law in Shelton required schoolteachers to file affidavits providing names and addresses of all organizations to which they had belonged or contributed in the past five years. The court decided this law was also unconstitutional, noting that "the pressure upon a teacher to avoid any ties which might displease those who control his professional destiny would be constant and heavy." Like the NRA ordinance, the law in Shelton did not specifically forbid affiliations with particular organizations, but the implication of requiring disclosure was unmistakable.

The Supreme Court applied this same logic to government contractors (or would-be contractors) in O'Hare Truck Service, Inc. v. City of Northlake in 1996, 518 U.S. 712. O'Hare involved potential government contractors for towing services being asked to back a mayor's reelection campaign; the Court decided this was unconstitutional. The opinion states that the government cannot "retaliate[] against a contractor, or a regular provider of services, for the exercise of rights of political association or the expression of political allegiance."

This cross-section of Supreme Court case law bears negatively on the future of laws like the NRA ordinance -- and for good reason. The ordinance fits squarely within this pattern of case law, beginning with the NAACP case and the general concept that affiliation with a particular organization is constitutionally protected. In Shelton, the rules were defined even more specifically: Requiring disclosure of affiliations with organizations is unconstitutional. And O'Hare shows that this logic applies to government contractors as well. The ordinance here creates, in effect, a blacklist that is constitutionally unsound.

In fighting against a potential challenge to its ordinance, Los Angeles might invoke the sentiment from O'Hare that requiring or prohibiting a certain political view may be acceptable where it "has some justification beyond dislike of the individual's political association." But this thin argument is unlikely to be successful, because it is not directly related to contractors' qualifications to do the job, which is what O'Hare suggests might be an acceptable basis. And because the proposed Los Angeles ordinance requires initial and ongoing disclosure of affiliations with the NRA, it would be within prospective and/or current contractors' rights to challenge it once it becomes law. The schoolteacher-plaintiffs in Shelton had not lost their jobs when they sued the state; instead, they had refused to file the required affidavit listing their political and social organizations. Given the NRA's statements at the time of the city council's vote, a swift challenge to the law might be on the horizon.

A blacklist like the one the proposed ordinance creates threatens the fundamental and sometimes fragile freedoms of association and speech. In recalling the NAACP case, it becomes clear that required disclosure of affiliations can be used as a weapon against all kinds of organizations and political or social movements. Today, the target is the NRA; yesterday, it was the NAACP; and one can only guess what might be threatened in the future. If this ordinance is allowed to stand against the NRA, future freedoms are at risk for all organizations, including those with worthier missions.