Show Notes - NRA v. Vullo Wrap-Up

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Episode # 92

The Supreme Court on Thursday May 30, 2024 reinstated a lawsuit by the National Rifle Association, alleging that a New York official violated the group’s First Amendment rights when she urged banks and insurance companies not to do business with it in the wake of the 2018 shooting at a Florida high school. In a unanimous decision by Justice Sonia Sotomayor, the justices agreed that the NRA had made out a case that Maria Vullo, then the head of New York’s Department of Financial Services, had gone too far in her efforts to get companies and banks to cut ties with the NRA, crossing over the line from efforts to persuade the companies and banks – which would be permitted – to attempts to coerce them, which are not.

Senior U.S. District Judge Thomas McAvoy allowed the NRA’s lawsuit to go forward. Vullo appealed that ruling to the U.S. Court of Appeals for the 2nd Circuit, which reversed. It ruled that the NRA’s allegations against Vullo did not rise to “an unconstitutional threat or coercion to chill the NRA’s free speech.” And in any event, it added, Vullo would have been entitled to immunity because the law governing Vullo’s conduct was not clear.

In a 20-page decision issued 10 weeks after the oral argument, the Supreme Court unanimously reinstated the NRA’s claim against Vullo.

Sotomayor explained that the NRA is not immune from government investigations and regulations. And, she observed, Vullo was “free to criticize the NRA and pursue the conceded violations of New York insurance law.” What she could not do, however, was use her power as the head of the Department of Financial Services to “threaten enforcement actions” against entities that the department regulated “to punish or suppress the NRA’s gun-promotion advocacy.”

But that is exactly what the NRA’s complaint alleges that Vullo did, Sotomayor continued. And in reaching the contrary conclusion, she wrote, the court of appeals misapplied the framework outlined in the court’s 1963 decision in Bantam Books v. Sullivan for analyzing claims that the government has unconstitutionally coerced someone to violate someone else’s First Amendment rights. When the NRA’s complaint is read in its entirety, she reasoned, it “plausibly alleges that Vullo threatened to wield her power against those refusing to aid her campaign to punish the NRA’s gun-promotion advocacy.” And if that is true, Sotomayor concluded, “that violates the First Amendment.”