Supreme Court Unanimously Rules for NRA in Free Speech Case

The U.S. Supreme Court in Washington, on May 15, 2024. (Madalina Vasiliu/The Epoch Times)

The Supreme Court unanimously ruled that the National Rifle Association (NRA) plausibly alleged that a former New York state official violated the First Amendment by pressuring insurance companies to cut ties with the gun rights organization.

“A government official can share her views freely and criticize particular beliefs, and she can do so forcefully in the hopes of persuading others to follow her lead,” Supreme Court Justice Sonia Sotomayor wrote in the majority opinion on May 30.

“In doing so, she can rely on the merits and force of her ideas, the strength of her convictions, and her ability to inspire others. What she cannot do, however, is use the power of the State to punish or suppress disfavored expression.”

Justices Neil Gorsuch and Ketanji Brown Jackson filed concurring opinions.

NRA v. Vullo emerged out of the aftermath of the Parkland, Florida, shooting on Feb. 14, 2018. The Supreme Court’s decision allows the gun rights organization to proceed with its First Amendment claims in a lower court.

The U.S. Court of Appeals for the Second Circuit had rejected the NRA’s First Amendment arguments and said that regardless, New York Department of Financial Services (DFS) Superintendent Maria Vullo was entitled to qualified immunity.

A district court had blocked motions to dismiss from both Ms. Vullo and former New York Gov. Andrew Cuomo, but the latter didn’t appeal.

Coercive Speech

David Cole, who argued for the NRA on March 18, maintained that New York state engaged in a type of coercive activity that violated the First Amendment.

“This was not about enforcing insurance law or mere government speech,” Mr. Cole said. “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.”

The U.S. solicitor general’s office similarly argued that Ms. Vullo’s conduct, and Mr. Cuomo’s communications, showed that the state was engaging in coercion prohibited under the First Amendment.

Neal Katyal, who argued for Ms. Vullo, said the state targeted the NRA based on illegal insurance products and therefore was justified in telling companies to cease its work with them.

The Supreme Court’s ruling, however, stated that the “conceded illegality of the NRA-endorsed insurance programs does not insulate Vullo from First Amendment scrutiny.”

In supporting the NRA, Justice Sotomayor, in her May 30 opinion, drew on the court’s 1963 opinion in Bantam Books v. Sullivan. That opinion held that Rhode Island engaged in informal censorship with its notices to a distributor of blacklisted publications.

“Ultimately, Bantam Books stands for the principle that a government official cannot do indirectly what she is barred from doing directly: A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf,” Justice Sotomayor wrote.

Her opinion focused on the power Ms. Vullo wielded during her time in office and the nature of communications she sent to insurance companies.

“The message was ... loud and clear,” Justice Sotomayor said in reference to interactions the DFS had with Lloyd’s insurance.

“As alleged, Vullo’s communications with Lloyd’s can be reasonably understood as a threat or as an inducement,” she wrote. “Either of those can be coercive.”

NRA v. Vullo was heard on the same day as the Biden administration defended its communications pressuring social media giants in their moderation of content related to COVID-19 and the 2020 election. The decision in that case, Murthy v. Missouri, has yet to be announced.

Justice Jackson’s Concurrence

In her concurrence, Justice Jackson sought to “stress the important distinction between government coercion, on the one hand, and a violation of the First Amendment, on the other.”

She wrote that government coercion alone wasn’t enough to prove a First Amendment violation and that the facts of a particular case should play a role in establishing that link. Justice Jackson expressed caution about applying the Bantam Books ruling to other cases.

“The effect of Vullo’s alleged coercion of regulated entities on the NRA’s speech is significantly more attenuated here than in Bantam Books or most decisions applying it,” she wrote.

“It is, for instance, far from obvious that Vullo’s conduct toward regulated entities established ‘a system of prior administrative restraints’ against the NRA’s expression.”

Justice Jackson raised eyebrows in March when she said during an oral argument in Murthy v. Missouri that she was concerned about the First Amendment’s “hamstringing” the federal government.

Her comments prompted a wave of criticism suggesting she misunderstood the purpose of the First Amendment.

She indicated concern that the federal government wouldn’t be able to protect children potentially engaging in harmful conduct.

“I guess some might say that the government actually has a duty to take steps to protect the citizens of this country, and you seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information,” she said.