The case, NRA v. Vullo, brought by the National Rifle Association (NRA) against a New York official and alleging freedom of speech violations, has reached the Supreme Court of the US (SCOTUS) and, overall, the justices appeared overall sympathetic toward NRA’s claims.
The respondent to the NRA’s petition to allow the lawsuit to proceed, former New York State Department of Financial Services (DFS) Superintendent Maria Vullo, is accused of influencing banks and insurance firms to drop the NRA.
The case concerns two actions taken by Vullo – first seven years ago when DFS started investigating insurance programs in cases of gun injuries tied to NRA. The following year, this resulted in three insurers stopping programs covering such claims in New York, and paying $7 million in fines.
And then, after the Parkland, Florida school shooting in 2018, the official decided it was a good idea to publish a “guidance” letter to banks and insurers (thousands of them), warning how their “reputation” might suffer if they worked with a pro-gun organization. Vullo found success here as well, as a number of insurance companies and banks heeded the warning.
But the NRA’s federal lawsuit that followed accused Vullo of violating NRA’s First Amendment rights. A court first allowed the lawsuit to proceed, but then the court of appeals overturned this ruling. And it is now up to SCOTUS to decide.
The American Civil Liberties Union (ACLU) is representing the NRA, explaining its involvement as necessary to prevent the government from going after other groups in a similar way – even though the ACLU’s own ideological slant and that of the NRA are clearly on the opposite ends of the spectrum in the US.
The ACLU’s David Cole told the justices on Monday that SCOTUS should adhere to the Bantam Books v. Sullivan decision in this case, adding that “informal, indirect government efforts to suppress or penalize speech by threatening private intermediaries violate the First Amendment.”
In Bantam Books v. Sullivan (1963), the Supreme Court ruled that the Rhode Island Commission to Encourage Morality in Youth’s practice of notifying distributors about certain books deemed objectionable for minors under 18 amounted to unconstitutional state censorship. This informal censorship violated the First Amendment as it lacked procedural safeguards, leading to the suppression of book distribution without formal legal action. The Court emphasized that while states have the authority to regulate obscene material, they must ensure that such regulation does not infringe on constitutionally protected speech, thus requiring a balance between protecting minors and upholding free speech rights.
Vullo’s representative Neal Katyal, on the other hand, held that it was NRA’s “illegal conduct” (i.e., alleged sale of illegal products by both the group, and insurers) that was of key importance in the case, and suggested that Vullo’s actions amounted to a simple example of law enforcement.
Among those who came across as least sympathetic towards the NRA case were Justices Ketanji Brown Jackson and Elena Kagan.
Jackson did not appear convinced that the First Amendment claim was entirely valid, noting that the government can regulate “conduct,” even if it may not be able to regulate “content.”
But Cole replied that, in this instance, the government, i.e., New York authorities, were not going after NRA’s alleged law violations, but rather promoting a (political and ideological) agenda of shutting down a gun lobby – hence the speech implication.
Justice Kagan pushed back against NRA’s argument that the “reputational” risk brought up by Vullo in her letters to banks and insurance companies really had to do with a stance on guns as such.
But Cole sees the letter as claiming that “guns are bad” – and “you should reconsider your relations with the NRA because it’s a reputational risk if you don’t.”
Justice Samuel Alito, on the other hand, appeared very sympathetic, referring at one point to “people (officials) in New York” as “ham-handed (…) rubes” – in the context of the way the letters were put together. And he suggested that insurance companies were well aware of the power their regulator at the time – Vullo – had over them.
But he also wanted Cole to clarify the intended definition of government coercion for entities like banks and insurers to act in a particular way.
Cole seemed to have addressed this point in his opening remarks when he said that while the government can express what political groups it opposes, and encourage others to do the same. However, “What they cannot do is use their regulatory might to add ‘or else’ to that request. Respondent Vullo did just that.”
Justice Alito also made sure to note that the SCOTUS had never before made a decision that would allow heads of departments at the federal or state level with enforcement powers to enjoy absolute immunity – which appears to be how he interpreted the direction Vullo’s representative’s arguments were going.
During the hearing, Justice Brett Kavanaugh made a point, addressing Neal Katyal, that it was “jarring” that the Solicitor General representing the US (and having a “strong interest in not expanding Bantam Books”) – “is on the other side from you (Vullo) in this case.”
