NRA lawyer tells SCOTUS that NY official made 'explicit requests' to companies to blacklist rights group

"Government officials are free to urge people not to support political groups they oppose. What they cannot do is use their regulatory might to add 'or else' to that request, Respondent Vullo did just that."

Hannah Nightingale Washington DC

The Supreme Court heard arguments on Monday in a case brought forth by the National Rifle Association against former New York Department of Financial Services superintendent Maria Vullo, who the NRA said used her regulatory powers to punish the organization for its pro-gun stance in violation of the First Amendment.

According to ABC News, the NRA is represented in the case by the American Civil Liberties Union, which said that despite opposing the group’s views, the case could be a "playbook" for government officials to target other groups such as pro-abortion ones.

"Government officials are free to urge people not to support political groups they oppose. What they cannot do is use their regulatory might to add 'or else' to that request, Respondent Vullo did just that," ACLU Legal Director David Cole told the court.

"Not content to rely on the force of her ideas. She abused the coercive power of her office. In February 2018, she told Lloyds, the insurance underwriter, that she'd go easy on his unrelated insurance violations if it aided her campaign to weaken the NRA by halting all business with the group. Lloyds agreed."

"Six weeks later, she issued guidance letters and a press release, directing the thousands of banks and insurance companies that she directly oversees to cut off their ties with the NRA, not because of any alleged illegality, but because they promote guns," said Cole. These guidance letters were sent in the wake of the Parkland, Florida school shooting.

A press release from then-Governor Andrew Cuomo stated that "he directed flow to issue the guidance because doing business with the NRA 'sends the wrong message'."

"Shortly thereafter, Vullo extracted legally binding consent orders from the NRA’s three principal insurance providers, barring them from ever providing affinity insurance to the group ever again, no matter how lawfully, they do so. 

Cole later added, "This was not about enforcing insurance law or mere government speech. It was a campaign by the state's highest political officials to use their power to coerce a boycott of a political advocacy organization because they disagreed with its advocacy."

During questioning, justices aimed at differentiating unlawful pressure from permissible government advocacy.

Justice Samuel Alito asked Cole, "How do you define when it goes too far?"

Cole said that in this case there are "explicit requests to punish a group because of its advocacy and the invocation of the very tools she has to make life miserable for them," later adding that "There's no question on this record that they encouraged people to punish the NRA."

Cole further described "coercion" as "the threat, implicit or explicit" of an action being taken, in this case meaning government action against the NRA.

One of the three insurance companies, he said, Vullo "got them to agree not to provide insurance to the NRA anywhere in the country, not just in New York. She has no jurisdiction out there."

During questioning of attorney Neal Katyal, representing Vullo, Justice Brett Kavanaugh noted that the solicitor general is on the side of the NRA in this case.

"It's a bit jarring, I guess for me, that the solicitor general is on the other side of you on this case," Kavanaugh said.

"I don't want to characterize their motivations or anything. I just think ultimately when they get to, you know, what their tests are different than our tests. I think we're all basically in agreement that, for example, that the Second Circuit got it right. The second circuit's test is, government officials cannot use their regulatory powers to coerce individuals or entities into refraining from protected speech," Katyal responded.

Katyal claimed the NRA was "seeking to weaponize the First Amendment and exempt themselves from the rules that govern you and me simply because they're a controversial speaker."

"When you're in a situation like this of conceded illegality," Katyal said, "there is an obvious alternative explanation for what Ms. Vullo was doing here, which was enforcing the law."

Katyal argued that the NRA and the three insurance companies in question were the ones breaking the law, saying that "They were selling intentional criminal act insurance, and all of the products they offered were unlawful because the NRA refused to get a license."

Katyal also argued that a ruling in the NRA’s favor would open up the door to the organization challenging other enforcement actions across the country by alleging First Amendment violations.

“You would be opening the door to something very, very dangerous and destructive down the road,” Katyal said.

A decision is expected by the end of June.

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