NRA's Free Speech Win: A Look at the Supreme Court's Landmark Decision

In a unanimous decision, the Supreme Court ruled Thursday in National Rifle Association of America v. Vullo that Maria Vullo, the former superintendent of the New York Department of Financial Services (DFS), violated the First Amendment by coercing insurance companies and financial service providers — entities regulated by DFS — to sever their business relationships with the NRA.

This decision sends the NRA’s case back to a lower court, reinstating the NRA’s claims that Vullo, acting on behalf of former New York Governor Andrew Cuomo, offered insurance companies a wink-nod deal that the State of New York would ignore their regulatory violations in other areas as long as the companies stopped doing business with the NRA.

The lower court must now reconsider the case, understanding that SCOTUS sees Vullo's alleged offering of a regulatory quid pro quo with insurance companies at the NRA's expense as a First Amendment violation. The Second Circuit may also weigh whether Vullo is entitled to qualified immunity (and they are likely to find that she is.)

Justice Sonia Sotomayor writes in the SCOTUS opinion, “Six decades ago, this Court held that a government entity’s ‘threat of invoking legal sanctions and other means of coercion’ against a third party ‘to achieve the suppression’ of disfavored speech violates the First Amendment… Today, the Court reaffirms what it said then: Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors. Petitioner National Rifle Association (NRA) plausibly alleges that respondent Maria Vullo did just that.”

Background

In May 2018, the NRA sued Maria Vullo, claiming she used her regulatory authority to pressure insurance companies and financial institutions to stop doing business with the NRA in an effort to suppress the NRA’s advocacy for gun rights. The NRA alleged that Vullo's actions, particularly her communications with these companies, were intended to punish the NRA for its pro-gun stance.

The NRA's lawsuit survived in trial court but was rejected in 2022 by the Second Circuit, which decided that Vullo was expressing her own political preferences and was not attempting to blacklist the NRA through coercion and abuse of power.

The [Second Circuit] court ruled that in an era of “enhanced corporate social responsibility,” it was reasonable for New York's financial regulator to warn banks and insurance companies against servicing pro-gun groups based on the supposed “social backlash” against those groups’ advocacy. The court also ruled that Vullo’s guidance – written on her official letterhead and invoking her regulatory powers – was not a directive to the institutions she regulated, but rather a mere expression of her political preferences.

Source: NRA

In February 2023, the NRA asked the Supreme Court to intervene. SCOTUS granted a review of the case in November 2023 and ruled last week.

Key Facts

Regulatory Power

DFS regulates insurance companies and financial services institutions in New York. It can investigate and take enforcement actions against these entities.

NRA’s Business Relationships

The NRA had contracts with entities like Lockton Companies, Chubb Limited, and Lloyd’s of London to offer insurance policies to its members. These policies, including Carry Guard, were scrutinized for allegedly violating New York laws.

Vullo’s Actions

Vullo investigated Carry Guard and found violations. Subsequently, she expanded her investigations into other NRA-related insurance programs. She met with Lloyd’s executives, expressed her views on gun control, and allegedly implied that DFS would be lenient on non-NRA-related infractions if Lloyd’s stopped underwriting NRA-related policies.

Guidance Letters

Vullo issued letters to DFS-regulated entities, encouraging them to reassess and manage their risks related to their dealings with the NRA and other gun promotion organizations. The NRA saw these letters as an attempt to coerce businesses into severing ties with the NRA.

Legal Findings

First Amendment Claim

The Supreme Court found that the NRA plausibly alleged that Vullo’s actions amounted to coercion intended to suppress the NRA’s advocacy. The Court emphasized that while government officials can express their own views and advocate for policies, they cannot use their power to punish or suppress opposing viewpoints.

In the opinion, Justice Sotomayor writes that Vullo was “free to criticize the NRA” but “could not wield her power, however, to threaten enforcement actions against DFS-regulated entities in order to punish or suppress the NRA’s gun-promotion advocacy.”

Bantam Books Precedent

The ruling drew on the precedent set by Bantam Books, Inc. v. Sullivan, which held that government officials cannot indirectly use coercive threats to suppress disfavored speech.

Coercion Analysis

The Court determined that Vullo’s communications, particularly with Lloyd’s, could reasonably be understood as coercive threats. Her authority over the regulated entities, combined with the context and content of her communications, suggested that these entities were pressured into disassociating from the NRA.

Vullo issued two virtually identical guidance letters on DFS letterhead entitled, “Guidance on Risk Management Relating to the NRA and Similar Gun Promotion Organizations.” Id., at 246–251 (Guidance Letters). Vullo sent one of the letters to insurance companies and the other to financial services institutions. In the letters, Vullo pointed to the “social backlash” against the NRA and other groups “that promote guns that lead to senseless violence”

Source: SCOTUS (p4)

Conclusion of the Case

The Supreme Court vacated the Second Circuit's decision, which had sided with Vullo, and remanded the case for further proceedings. The Court held that the NRA’s complaint plausibly alleged a First Amendment violation, focusing on the principle that government officials cannot use their regulatory power to indirectly coerce private parties into punishing or suppressing disfavored speech.

“The opinion confirms what the NRA has known all along: New York government officials abused the power of their office to silence a political enemy. This is a victory for the NRA’s millions of members and the freedoms that define America.”

Source: NRA

Editorial Comments

It's obvious in this case that Vullo (and, in effect, the state of New York) was violating the NRA's First Amendment rights. A government official pressuring private insurance companies to cut off gun-friendly organizations because the government opposes pro-gun political advocacy is clearly a no-no.

However, it's not surprising that this happened to begin with. New York is openly hostile to the Second Amendment. This case is another example of state-level politicians trying to limit basic constitutional rights through indirect methods and dishonest workarounds.

Fortunately, in this case, the NRA received a lot of support. Dozens of Republican members of Congress and 25 state Attorneys General were represented in amicus briefs. Vullo's corruption was so evident that even the progressive ACLU sided with the NRA in representation.

The victory also marks a positive shift for the NRA, which has been plagued by decreasing influence and bitter internal leadership struggles in recent years. Maybe this marks the beginning of a recovery. (And maybe not.)

As for Maria Vullo – she left office in 2019 and now operates Vullo Advisory Services and is an adjunct professor at Fordham Law.

We'll keep you posted about how this turns out in the US Court of Appeals for the Second Circuit.

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