Supreme Court sides with NRA, rules government cannot work to ‘debank’ political adversaries

Justice Sonia Sotomayor delivered the court’s opinion, writing that the court had ruled in the 1960s with the Bantam Books decision "that a government entity’s 'threat of invoking legal sanctions and other means of coercion' against a third party 'to achieve the suppression' of disfavored speech violates the First Amendment." Justice Neil Gorsuch and Justice Ketanji Brown-Jackson wrote the concurring opinions.

"Today, the Court reaffirms what it said then: Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors. Petitioner National Rifle Association (NRA) plausibly alleges that respondent Maria Vullo did just that," she added.

She wrote that Vullo, as superintendent of the New York Department of Financial Services (DFS), "allegedly pressured regulated entities to help her stifle the NRA’s pro-gun advocacy by threatening enforcement actions against those entities that refused to disassociate from the NRA and other gun-promotion advocacy groups. Those allegations, if true, state a First Amendment claim."

According to CBS News, the US Court of Appeals for the 2nd Circuit had previously tossed out the organization’s First Amendment lawsuit against Vullo. The Supreme Court’s decision invalidates the one issued by the appeals court and sends the case back for further proceedings.

After the fatal Parkland Shooting in Florida in 2018, Vullo issued "guidance" letters urging banks and insurance companies to cut ties with the NRA, CNN reported. The NRA claimed that Vullo threatened enforcement actions against those firms if they did not comply.

"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," Sotomayor wrote.

"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," she added.

She wrote that Vullo had "direct regulatory and enforcement authority over all insurance companies and financial service institutions doing business in New York," later adding that Vullo allegedly said in a 2018 meeting with senior executives at Lloyd’s of London "she would be 'less interested in pursuing the[se] infractions ... so long as Lloyd’s ceased providing insurance to gun groups, especially the NRA.'"

"Vullo therefore wanted Lloyd’s to disassociate from all gun groups, although there was no indication that such groups had unlawful insurance policies similar to the NRA’s. Vullo also told the Lloyd’s executives she would 'focus' her enforcement actions 'solely' on the syndicates with ties to the NRA, 'and ignore other syndicates writing similar policies,'" Sotomayor wrote.

"The message was loud and clear: Lloyd’s 'could avoid liability for [unrelated] infractions' if it 'aided DFS’s campaign against gun groups' by terminating its business relationships with them."

After issuing the guidance letters, the DFS "subsequently entered into separate consent decrees with Lockton, Chubb, and Lloyd’s, in which the insurers admitted violations of New York’s insurance law, agreed not to provide any NRA-endorsed insurance programs (even if lawful), and agreed to pay multimillion-dollar fines."

"The NRA’s allegations, if true, highlight the constitutional concerns with the kind of strategy that Vullo purportedly adopted. Although the NRA was not the directly regulated party here, Vullo allegedly used the power of her office to target gun promotion by going after the NRA’s business partners. Nothing in this case immunizes the NRA from regulation nor prevents government officials from condemning disfavored views. The takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries."

The NRA was represented during the March hearing on the case by the ACLU. Despite opposing the group’s views, the ACLU said 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.