The U.S. Supreme Court unanimously ruled on Thursday that state officials in New York infringed on the National Rifle Association’s First Amendment rights by initiating a coercion campaign against regulated companies to “punish or suppress the NRA’s gun-promotion advocacy.”
Maria Vullo, Superintendent of the New York Department of Financial Services, spearheaded the campaign against the NRA, launching a 2017 investigation into the affinity insurance program Carry Guard. The investigation concluded that Carry Guard was in violation of New York laws, leading the organization’s insurance broker to halt their partnership. Following this outcome, Vullo expanded “her investigation into the NRA’s other affinity insurance programs.”
In the wake of the Parkland, Florida, shooting in February 2018, Vullo convened a meeting with insurance executives at Lloyd’s, during which she expressed her personal “views on gun control and [her] desire to leverage [her] powers to combat the availability of firearms.” She indicated the partnership with the NRA seemed to breach “an array of technical regulatory infractions” that could be resolved only by ceasing coverage to Second Amendment organizations like the NRA.
In April, Vullo sent a letter to every insurance and financial entity under her office’s regulation, labeling the “tragic devastation caused by gun violence” a “public safety and health issue” and subtly warning that “reputational risks” “may arise” for companies collaborating with the NRA. Then-Gov. Andrew Cuomo issued a same-day press release backing Vullo’s stance and urging companies to cut ties with the NRA.
The combined pressure from Vullo and Cuomo was effective. In September 2018, Lloyd’s announced it would cease insuring the NRA to avoid further scrutiny from Vullo’s department, with other entities following suit.
“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 filed a lawsuit against both Vullo and Cuomo, arguing that the state misused its power to quash the pro-Second Amendment organization’s constitutionally protected speech and advocacy.
A district court initially denied Vullo’s motion to dismiss the case. The Second Circuit reversed that decision, asserting that Vullo’s actions amounted to “examples of permissible government speech” and “legitimate enforcement” based on “allegations in isolation.”
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 acknowledged 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 this was precisely what Vullo did.
Referencing the court’s decision in Bantam Books, Inc. v. Sullivan, the justices affirmed 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 cautioned.
In his concurring opinion, Justice Neil Gorsuch warned lower courts against repeating the errors made by the Second Circuit 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.
