NRA v. Vullo: SCOTUS rules government may not engage in "lawfare" against free speech, using coercion against 3rd parties to limit politcal speech

The following article is the most recent post from my blog The?Appellate Spectator:

Unanimous Supreme Court rules government may not engage in "lawfare" against free speech, limiting the expression of opinions by a political organization by deliberating interfering with its relations with other companies or organizations

The United States Supreme Court has recently issued one of the most important First Amendment cases in the last decade. (National Rifle Association v. Vullo (May 30, 2024) no. 22-842.) See https://supreme.justia.com/cases/federal/us/602/22-842/case.pdf.

?In this unanimous decision, issued a mere 73 days after it was argued, the United States Supreme Court affirmed a state government may not seek to block the expression of opinions by a political organization by deliberating interfering with its relations with other companies or organizations. ?Your author terms this sort of conduct "lawfare" and it is readily-apparent the current regime in the State of New York will do almost anything to silence its political opponents.

When one imagines the legitimate role of a sovereign state, one does not imagine attempting to silence political views the Governor and Attorney General find repugnant, which political views cannot be banned outright due to those pesky restrictions found in the Bill of Rights. ?Nonetheless, as Justice Sotomayer cogently explained at pages three to five, the NRA alleged the State of New York did exactly that:

Around that time, [the?former superintendent of the New York Department of Financial Services, or NFS] Vullo also began to meet with executives at the insurance companies doing business with the NRA. On February 27, Vullo met with senior executives at Lloyd’s. There, speaking on behalf of DFS and then-Governor Andrew Cuomo, Vullo “presented [their] views on gun control and their desire to leverage their powers to combat?the availability of firearms, including specifically by weakening the NRA.”?Id., at 221, ?67. She also “discussed an array of technical regulatory infractions plaguing the affinity-insurance marketplace” in New York.?Id., at 199, ?21. Vullo told the Lloyd’s executives “that DFS was less interested in pursuing the[se] infractions” unrelated to any NRA business “so long as Lloyd’s ceased providing insurance to gun groups, especially the NRA.”?Id., at 199–200, ?21; accord,?id., at 223, ?69 (alleging that Vullo made it clear to Lloyd’s that it “could avoid liability for infractions relating to other, similarly situated insurance policies, so long as it aided DFS’s campaign against gun groups”).1?Vullo and Lloyd’s struck a deal: Lloyd’s “would instruct its syndicates to cease underwriting firearm-related policies and would scale back its NRA-related business,” and “in exchange, DFS would focus its forthcoming affinity-insurance enforcement action solely on those syndicates which served the NRA, and ignore other syndicates writing similar policies.”?Ibid., ?69.

On April 19, 2018, 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” following “several recent horrific shootings, including in Parkland, Florida.”?Id., at 246, 249. Vullo then cited recent instances of businesses severing their ties with the NRA as examples of companies “fulfilling their corporate social responsibility.”?Id., at 247, 250.?

The State of New York therefore targeted "affinity products" in the insurance marketplace and therefore sought to discourage these and other businesses from doing lawful business with the NRA in order to "weaken" it. ?

The NRA sued Vullo in Federal District court. ?While the case survived a motion to dismiss in District Court, it did not survive a review of this ruling in the Second Circuit, which held the NRA could not state a First Amendment claim. ?

With the assistance of the American Civil Liberties Union (see https://www.aclu.org/cases/national-rifle-association-v-vullo) the NRA sought and was granted certiorari by the United States Supreme Court, which found the alleged coercion of other entities, if proven, violates the First Amendment rights of the NRA. Specifically, while Vullo could criticize the NRA, 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." (Id., p. 8.)

As the unanimous court stated clearly, a governmnent official may not use their power to do something indirectly that they may not do directly; namely, punish an entity that does not disassociate itself from a political opponent whose advocacy offends those in power:

To state a claim that the government violated the First Amendment through coercion of a third party, a plaintiff must plausibly allege 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. See 372 U. S., at 67–68. Accepting the well-pleaded factual allegations in the complaint as true, the NRA plausibly alleged that Vullo violated the First Amendment by coercing DFS-regulated entities into disassociating with the NRA in order to punish or suppress the NRA’s gun-promotion advocacy.

The suit will therefore be remanded to the?United States District Court for the Northern District of New York for further proceedings.

Concurrences

Justice Brown Jackson wrote separately to stress her view that while?governmental coercion can implicate the First Amendment, such coercion is not always tantamount to a violation of freedom of speech and other First Amendment rights and that one must analyze whether the coercion does in fact violate a party's right to freedom of speech. ?

Justice Gorsuch also wrote separately and posited that while the majority opinions provided "guideposts," there may indeed be a violation of the First Amendment whether or not any guideposts are found. ?In other words, the ultimate test is whether the offending action "could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff's speech.”?(Id., p. 25.)

Analysis?

It is difficult to imagine how Judges Pooler, Chin, and Carney of the Second Circuit could have come to a more wrong decision. ?Indeed, the Solicitor General of the United States (a Biden appointee, no less) filed an amicus brief in support of vacating the Second Circuit's opinion. The ease with which Vullo was apparently able to intimidate a sophisticated nationwide entity such as Chubb into terminating a program providing liability insurance to gun owners, a result that no reasonable person could argue would be beneficial to victims of gun violence, is also disheartening.

There should be no doubt, then, that the actions of New York's government, currently led by Governor Kathy Hochel (who could have put a stop to this anti-liberty nonsense by settling this action) were both unconstitutional and blatantly authoritarian. ?So much so, in fact, that this should cause grave concern for anyone who lives in, does business with, or even visits New York. ?One can imagine such Stalinist abusive tactics being used against, for example, the Sierra Club if they were to lobby against fracking or oil drilling and another state government were to find these actions against the interests of its citizens. ?It would be equally odious for such a state government to press banks and other financial institutions to cease doing business with the Sierra Club notwithstanding the fact their actions are protected activity under the First Amendment.

Finally, the fact a decision was issued in a timely fashion in a case of such import indicates the Court can move quickly where the outcome is determined by settled Constitutional principles. ?It is sad to say that this is not always the case, as the Court often appears to be bogged down by dissenting opinions in cases decided by the vote of one or two justices where the dissenting justices, for want of a better word, simply refuse to acknowledge the clear language of our nation's founding document.