OPINION ANALYSIS

Supreme Court rules for NRA in First Amendment dispute

The Supreme Court on Thursday 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.

The Supreme Court also indicated, however, that when the case returned to the court of appeals, the lower court could consider whether Vullo is entitled to qualified immunity – which could prove to be a high bar for the NRA to surmount.

The events leading up to the case began in 2017, when the department opened an investigation into NRA-endorsed insurance programs to provide coverage for injuries caused by guns. In the wake of that investigation, three insurance companies acknowledged that some of the NRA-endorsed programs violated New York law, and they agreed both to pay fines of up to $7 million and to refrain from providing those programs to the state’s residents.

In 2018, a mass shooting at Marjory Stoneman Douglas High School in Parkland, Fla., caused the death of 17 students and staff. That prompted Vullo to issue a press statement and “guidance” letters in which she called on insurance companies and banks to consider the risks to their reputations from doing business with groups, like the NRA, that promote guns.

After some insurance companies and banks severed their relationships with the NRA, the NRA went to federal court, where it argued that Vullo violated the group’s right to freedom of speech by coercing the companies and banks to stop doing business with the NRA.

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.”

Justice Neil Gorsuch wrote a brief separate concurring opinion in which he noted that the court’s opinion had suggested that many lower courts had relied on a “four-pronged ‘multifactor test’” to analyze coercion claims like the NRA’s. Although that test might in some scenarios be useful, Gorsuch acknowledged, they are merely “guideposts”: The key question, he stressed, is whether a plaintiff “has ‘plausibly alleged conduct that, viewed in context, could reasonably be understood to convey a threat of adverse government action in order to punish or suppress the plaintiff’s speech.”

In her own separate concurring opinion, Justice Ketanji Brown Jackson emphasized what she characterized as the “important distinction between government coercion, on the one hand, and a violation of the First Amendment.” It is only once a court determines that coercion occurs, she contended, that it must then “assess how that coercion actually violates a speaker’s First Amendment rights.” Doing so, she continued, may require the court to apply different doctrines depending on the facts of the case – for example, whether (as in this case) the plaintiff alleges that it was the victim of censorship or retaliation.

Neal Katyal, who represented Vullo in the Supreme Court, indicated in a statement that Vullo’s team was “disappointed by the Court’s decision,” contending that Vullo “did not threaten, coerce or retaliate against anyone in the performance of her duties.” However, Katyal emphasized, “because of the posture of this case, this ruling required the Court to treat the NRA’s untested allegations as true even though these allegations have no evidentiary merit.” And he expressed confidence that Vullo’s “claim of qualified immunity will be reaffirmed” when the case returns to the court of appeals.

First Amendment groups, on the other hand, hailed the decision. Alex Abdo, the litigation director of the Knight First Amendment Institute at Columbia University, called the decision an “important” one that “reaffirms the bedrock First Amendment rule that the government may not coerce others to suppress constitutionally protected speech.” The decision, Abdo continued, “also appropriately recognizes that, while the government may not employ coercion, it must be allowed to attempt to persuade the public of its views.”

The Foundation for Individual Rights and Expression, which filed a “friend of the court” brief supporting the NRA, similarly praised the ruling. The group’s chief counsel, Bob Corn-Revere, called Vullo’s conduct “a naked attempt to evade the Constitution. The Court’s unanimous decision sends a clear message that the government cannot use its bully pulpit to censor speech it doesn’t like without violating the First Amendment.”

This article was originally published at Howe on the Court.