In an important ruling that warns public officials not to wield their power to punish speech they dislike, the US Supreme Court has revived the National Rifle Association’s (NRA’s) protracted lawsuit against a New York state official whom the gun rights group accuse of coercing banks and insurers to avoid doing business with them (Federalist, Fox, Politico).
The unanimous ruling from the nine-member bench of justices threw out a lower court’s ruling that had dismissed the NRA’s 2018 lawsuit against Maria Vullo, a former superintendent of New York’s Department of Financial Services.
At issue is whether Vullo wielded her regulatory power to coerce New York financial institutions into blacklisting the NRA, effectively forcing banks and insurers to cut ties with the group and violating protections under the U.S. Constitution’s First Amendment against government restrictions on free speech.
Shortly after the shooting at Marjory Stoneman Douglas High School in 2018 in Parkland, Florida, that killed 17 students and staff, Vullo sent “guidance letters” to banks and insurance companies encouraging them to sever ties with the NRA and other pro-Second Amendment organizations, citing unspecified “reputational risks” that “may arise”.
Andrew Cuomo, the then Governor of New York, issued a same-day press release affirming Vullo’s stance and demanding companies sever ties with the gun rights group.
In a subsequent meeting with insurance executives at Lloyd’s, Vullo introduced her personal “views on gun control and [her] desire to leverage [her] powers to combat the availability of firearms” into the conversation. Specifically, she told the company that its partnership with NRA appeared to violate “an array of technical regulatory infractions” that could only be remedied by refusing to grant coverage to Second Amendment organisations like the NRA.
The NRA accuses Vullo of unlawfully retaliating against it for its constitutionally protected gun rights advocacy by targeting it with an “implicit censorship regime”. Its suit, seeking unspecified monetary damages, alleges that New York’s blacklisting campaign sought to deprive the NRA of basic financial services and threatened its advocacy work.
The lawsuit also alleges that Vullo made “backroom threats” against regulated firms, accompanied by offers of leniency on unrelated infractions if regulated entities would agree to blacklist the NRA.
Last November, the Supreme Court agreed to hear National Rifle Association of America v. Vullo, after a federal appeals court in 2022 dismissed the group’s lawsuit, arguing Vullo’s actions were reasonable.
Liberal Justice Sonia Sotomayor, who has previously consistently sided against the NRA in Second Amendment cases, wrote the supreme court’s opinion, and concluded that the state’s actions – if ultimately proven – intruded on the group’s constitutionally protected advocacy.
The supreme court added that it “holds that the NRA plausibly alleged that Vullo violated the First Amendment by coercing DFS-regulated entities to terminate their business relationships with the NRA in order to punish or suppress the NRA’s advocacy.
As a result, the judgment of the US Court of Appeals for the Second Circuit has now been overruled, and the case will be remanded for further proceedings consistent with this opinion, allowing the NRA to continue to argue its case.
“Nothing in this case immunizes the NRA from regulation nor prevents government officials from condemning disfavoured views,” Sotomayor wrote, before adding: “The takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries.”
On that last point, the syllabus cited the Supreme Court’s previous Bantam Books, Inc. v. Sullivan ruling to confirm that a government official like Vullo “cannot do indirectly what she is barred from doing directly” and “cannot coerce a private party to punish or suppress disfavored speech on her behalf”.
Justice Sotomayor also noted that New York State’s action against insurance companies appeared to be part of a broader campaign by then-Gov. Andrew Cuomo to put the NRA in “financial jeopardy” and “shut them down”.
ADF Senior Counsel Jeremy Tedesco hailed the decision as “a big win for every American.”
He said: “The First Amendment protects Americans from government censorship and punishment for disfavored views, and the decision rightly affirms government officials can’t engage in censorship-by-proxy schemes like the pressure New York placed on banks and insurance companies to deny the NRA service for their constitutionally protected expression.”
