The U.S. Supreme Court unanimously ruled on Thursday that state officials in New York violated the National Rifle Association’s First Amendment rights when they waged a coercion campaign against companies they regulated to “punish or suppress the NRA’s gun-promotion advocacy.”
New York Department of Financial Services Superintendent Maria Vullo led the charge against the NRA by opening a 2017 investigation into affinity insurance program Carry Guard. She determined Carry Guard violated New York laws, which prompted the organization’s insurance broker to suspend its partnership. Encouraged by this outcome, Vullo extended “her investigation into the NRA’s other affinity insurance programs.”
Spurred on by the Parkland, Florida, shooting in February 2018, Vullo called a meeting with insurance executives at Lloyd’s. In that discussion, she used her personal “views on gun control and [her] desire to leverage [her] powers to combat the availability of firearms.” She told the company that its partnership with the NRA appeared to violate “an array of technical regulatory infractions” that could only be remedied by refusing to grant coverage to Second Amendment organizations like the NRA.
Shortly after that in April, Vullo penned a letter to every insurance and financial entity regulated by her office deeming the “tragic devastation caused by gun violence” a “public safety and health issue” and not so subtly threatening “reputational risks” “may arise” for companies that work with NRA. Then-Gov. Andrew Cuomo issued a same-day press release affirming Vullo’s stance and demanding companies sever ties with the NRA.
Vullo and Cuomo’s combined bullying worked. In September 2018, Lloyd’s announced it would no longer insure the NRA to avoid further scrutiny and inquiry by Vullo’s department. Others followed.
“DFS subsequently entered into separate consent decrees with Lockton, Chubb, and Lloyd’s, in which the insurers admitted violations of New York’s insurance law, agreed not to provide any NRA-endorsed insurance programs (even if lawful), and agreed to pay multimillion dollar fines,” the court syllabus states.
The NRA sued both Vullo and Cuomo on the grounds that the state used its authority and power to stifle and silence the pro-Second Amendment organization’s constitutionally protected speech and advocacy.
A district court originally denied Vullo’s attempt to get the case dismissed. The Second Circuit reversed that decision using “allegations in isolation” and claiming Vullo’s actions amounted to “examples of permissible government speech” and “legitimate enforcement.”
The Supreme Court, however, ruled on Thursday that the Second Circuit failed to “draw reasonable inferences in the NRA’s favor.”
“Nothing in this case immunizes the NRA from regulation nor prevents government officials from condemning disfavored views. 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,” the syllabus concludes.
In her majority opinion, Justice Sonia Sotomayor conceded that Vullo “was free to criticize the NRA and pursue the conceded violations of New York insurance law.”
“She 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,” Sotomayor wrote, noting that’s exactly what Vullo did.
Using the court’s Bantam Books, Inc. v. Sullivan ruling, justices confirmed that a government official like Vullo “cannot do indirectly what she is barred from doing directly.”
“A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf,” Sotomayor warned.
In his concurring opinion, Justice Neil Gorsuch warned lower courts against making the same mistakes the Second Circuit did in its now-overturned ruling.
“‘Ultimately, the critical’ question is whether the plaintiff has ‘plausibly allege[d] conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff ’s speech,’” he wrote.
