"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.”
With those words, David Cole opened his argument in the U.S. Supreme Court in the case of NRA v. Maria T. Vullo on March 18, 2024. As National Legal Director of the American Civil Liberties Union, Cole is one of America’s preeminent First Amendment advocates. Cole is also the author of Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, a book that presents a sympathetic analysis of how the Supreme Court came to full recognition of the Second Amendment.
Vullo was the superintendent of the New York State Department of Financial Services. As Cole went on to explain, “she abused the coercive power of her office” by telling Lloyd’s, the world-famous insurance underwriter, “that she’d go easy on its unrelated insurance violations if it aided her campaign to weaken the NRA by halting all business with the group.”
Maria T. Vullo had issued guidance letters “directing the thousands of banks and insurance companies that she directly oversees to cut off their ties with the NRA,” and she didn’t do this “because of any alleged illegality, but because [the NRA promotes] guns.”
Next, Vullo coerced consent agreements from the NRA’s three main insurance providers, barring them from ever insuring the NRA again. As Cole explained, “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.” As then-New York Gov. Andrew Cuomo (D) tweeted on Aug. 4, 2018, “NY is forcing the NRA into financial crisis. It’s time to put the gun lobby out of business.”
The NRA filed suit, alleging violation of its right to free speech. A U.S. district court upheld the complaint, but The United States Court of Appeals for the Second Circuit ruled against the NRA. The case has now been argued in the U.S. Supreme Court.
The first question, asked by Justice Clarence Thomas, was what protected speech was suppressed?
Cole said, “Promoting guns, advocating for gun rights, sending the ‘wrong’ message.”
And it cost the NRA millions of dollars, as the NRA relies on banks and insurance companies to do business.
Justice Ketanji Brown Jackson asked about the applicability of Bantam Books v. Sullivan (1963), in which the Supreme Court invalidated the practice by a state agency of threatening bookstores with sanctions if they sold certain “objectionable” books. That censorship was held to violate the First Amendment rights of the publisher. As Cole pointed out, that kind of indirect suppression of views paralleled the facts here.
Specifically, Vullo issued a letter to regulated insurers and banks entitled Guidance Regarding the NRA and Other Gun Promotion Organizations. The first four paragraphs described how bad guns are, and the fifth urged the entities to reconsider their relations with the NRA and other “gun promotion organizations.”
Justice Elena Kagan asked whether gun-advocacy groups impose “reputational risks” that warrant concern. Not so, Cole replied, again citing Bantam Books, under which the government may not suppress speech with which it disagrees.
Justice Amy Coney Barrett asked about the applicability of Nieves v. Bartlett (2019), another Supreme Court precedent which rejected a free-speech claim against a police officer who arrested a man for disorderly conduct. He was not arrested in retaliation for his words because there was probable cause to arrest him for his drunken conduct. But here, Cole noted, the NRA was punished for its views, and the violation continues because the guidance letters remained on the agency’s website.
Given the agency’s intent to repress views favorable to gun ownership, Justice Brett Kavanaugh asked, “What if New York went to insurance companies and said, we don’t want you to continue insuring gun manufacturers or sellers for the same reasons?”
Cole replied, “It might be a Second Amendment problem ... . If the government’s coercion is focused on conduct rather than speech, then it’s not a First Amendment problem.” I would add that while the complaint in this case doesn’t allege violation of the Second Amendment directly, repression of advocacy of rights under the Second Amendment or any other guarantee of the U.S. Bill of Rights would endanger those rights.
Echoing one of New York’s arguments, Justice Jackson asked “how do we avoid a world in which advocacy organizations are exempt from regulation?”
Cole responded, “The First Amendment requires strict scrutiny when the government censors speech because it doesn’t like ... its content.”
Jackson said she had never seen another situation like this in which Bantam Books would apply, but Cole mentioned the example of a sheriff who “didn’t like what a particular social-media platform was doing, and what he did was he encouraged credit-card companies not to do business with that platform.”
The U. S. Government’s Point of View
In this case, the United States filed an amicus curiae brief in support of the NRA. Ephraim McDowell, assistant to the Solicitor General, argued on behalf of the United States. He opened his remarks by saying, “Government officials may criticize private speech that they deem harmful and persuade citizens not to support that speech, but government officials may not threaten to take adverse action against private parties to coerce those parties into penalizing a disfavored speaker.”
McDowell noted that, in the Lloyd’s meeting, Vullo threatened an enforcement action unless the insurer ceased insuring gun groups, especially the NRA.
McDowell went on to say that “the Court should take care to avoid suggesting any new limits on the government’s ability to speak to the public or its ability to provide ordinary legal guidance to regulated entities.”
What was that all about? Earlier that morning, the Court heard argument in Murthy v. Missouri, which arose out of the Biden administration’s efforts to repress posts on social-media platforms that allegedly spread falsehoods about the COVID pandemic and the 2020 presidential election. The Fifth Circuit court of appeals held that, in this case, the government had violated the First Amendment. In other words, New York’s suppression of free speech was so outlandish that the Justice Department called it out, even while arguing in a separate case that morning in March that the perceived government threats in question didn’t violate the First Amendment.
Chief Justice John Roberts told McDowell that “there’s considerable overlap obviously” with Murthy and asked what the differences between the two cases are.
McDowell answered that the legal principles are the same, but the facts differed. In NRA v. Vullo, “there is a specific coercive threat, particularly in the Lloyd’s meeting, where she threatened adverse action in the form of an enforcement action so that Lloyd’s would comply with a specific instruction to cut ties with all gun groups, especially the NRA.” But in Murthy, “the plaintiffs did not identify any instance in which a government official threatened to take adverse action against a social-media company to get the social-media company to engage in specific content moderation.” (That response about Murthy, in my view, underrated the coercive power of thinly veiled government threats.)
So, Justice Alito asked, “does that mean that really the New York officials could have achieved what they wanted to achieve if they hadn’t done it in such a ham-handed manner?”
McDowell defended the first four paragraphs of Vullo’s “guidance” letters criticizing NRA, noting that “President Reagan expressly criticized the KKK.” (What a disgusting and incendiary comparison.) But he conceded that such criticism would normally be made in an op-ed or a press conference, not a guidance letter.
Justice Alito’s response was classic: “They gilded the lily ... . The people up in New York are rubes. They don’t really understand how to do this.”
That sparked laughter in the courtroom. He meant, of course, that the New York officials were too dumb to make their threats in a more disguised form, as was done in Murthy.
McDowell concluded that this was a clear-cut free speech violation under existing law, especially considering the Lloyd’s meeting and Cuomo’s tweet saying that the NRA is an “extremist” organization with which companies should not do business.
New York’s Argument
Next up was attorney Neal Katyal to speak on behalf of Vullo. He claimed that the NRA had an affinity insurance program that was unlawful. (With affinity insurance, an insurance provider offers a tailored insurance product to an affinity group, here the NRA.) The fact was that NRA had a program called Carry Guard in which affinity insurers provided legal insurance to retain attorneys for persons who used a firearm in self-defense. That would seem normal in America, but New York authorities despise the right to self-defense (consider Manhattan District Attorney Alvin Bragg (D) prosecuting a bodega clerk for defending himself) and said the program didn’t comply with New York law. The NRA then dropped the program. That was not an issue before the Court in this case.
Katyal next claimed that 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.” This was a non-sequitur because there were no rules in this case that the NRA allegedly violated.
Justice Sotomayor called him out on that issue, stating: “Sorry, these affinity programs could have been altered. And these consent decrees and what [Vullo] was seeking was a ban, even of potentially lawful affinity programs.” (An example would be insurance for accidents with guns.)
Katyal avoided the question, then added that the NRA had offered the affinity products without a license. But only the affinity insurers needed a license, and they had it.
Justice Kavanaugh made a further negative point: “Mr. Katyal, it’s a bit jarring ... for me that the Solicitor General is on the other side from you in this case, given that the Solicitor General represents the United States, and as we know from the last case [Murthy], has a strong interest in not expanding Bantam Books.”
Katyal’s non-response was the equivalent of saying, “Oh well.”
Justice Gorsuch reiterated that they all agreed that the law here is clearly established under Bantam Books.
To this, Katyal could only respond that the Court should not “open the door to people filing strike suits against enforcement actions all the time.”
But, Justice Alito said, all that the NRA needs to show is that “the desire to suppress speech was a motivating factor.” He gave the dramatic example of what if the insurers met with Vullo and she “pulled out a pistol and she held it to [their] heads, and she said I’m going to blow your brains out unless you stop writing insurance for the NRA.” According to Katyal’s argument, “That would not be enough to even allege a Bantam Books violation because she might have taken that same regulatory action ... for a perfectly legitimate reason.”
To this, Katyal could only respond that “there is an obvious alternative explanation for what Ms. Vullo was doing here, which was enforcing the law.”
Katyal concluded by repeating that “this case is not even close.”
When Cole began his rebuttal argument, he said, “Yes, so I agree with my friend on one point. This case is not close.” (Laughter, a rare thing in a U.S. Supreme Court hearing, broke out.)
Cole continued that “Carry Guard is a red herring” because the program was suspended before the events that gave rise to the free-speech violations. “Lloyd’s did not underwrite Carry Guard. And her meeting with Lloyd’s says cut your ties with gun groups, especially the NRA, because I’m trying to weaken them.”
Cole went on to point out the obvious that “the NRA didn’t have an insurance license in New York because it’s not an insurance company.” Nor does the American Bar Association, but it and countless other groups have affinity insurance, which is entirely legal. It is not “business as usual” for “a government official to speak with a private party and say we’ll go easy on you if you aid my campaign to weaken the NRA,” said Cole.
Indeed not. It is hazardous to predict the outcome of a case, but the Supreme Court has not deviated from its protection of the First Amendment law as set forth in the Bantam Books precedent 60 years ago. The rule is simple: It is a violation of free speech if the government threatens third parties with sanctions to coerce them from doing business with an entity because the government disagrees with the viewpoints of the entity.
A decision is due from the U.S. Supreme Court by late June.
Attorney Stephen P. Halbrook is a senior fellow with the Independent Institute. His latest books are America’s Rifle: The Case for the AR-15 and The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? See stephenhalbrook.com.
