It should be a fundamental truth that government officials cannot leverage their regulatory power to penalize an advocacy group based on disagreement with its viewpoint. Nevertheless, this is exactly the course of action that former Governor Andrew Cuomo of New York and his chief financial regulator, Maria Vullo, pursued against the National Rifle Association (NRA) in 2018.
The controversy stemmed from Cuomo and Vullo, who favored gun control, attempting to use their official positions to pressure banks and insurance companies to sever business ties with the NRA. This campaign materialized into a legal battle that culminated on May 30, 2024, when the U.S. Supreme Court unanimously ruled that the alleged actions and statements by Vullo and Cuomo constituted a First Amendment violation. This ruling overturned a prior unanimous decision from the Second Circuit against the NRA. The high court’s decision reasserted a long-standing principle that government officials cannot use their positions to coerce or penalize organizations based on their speech.
Central to the case were the allegations that Vullo, New York’s top financial regulator, told Lloyd’s, an insurance underwriter, that she would overlook other insurance violations if Lloyd’s complied with her directive to cease business with the NRA. Subsequently, Vullo issued formal guidance letters and a press release instructing financial institutions she regulated to cut ties with the NRA. In the accompanying press release, Cuomo stated that doing business with the NRA “sends the wrong message,” following up in a tweet that New York’s regulations were working to push the NRA into financial difficulty.
Had the Supreme Court upheld Vullo’s argument that these actions were merely “government speech” and ordinary law enforcement, it could have set a dangerous precedent allowing state officials across the nation to blacklist groups they disfavor. This was a significant concern, prompting the American Civil Liberties Union (ACLU) to represent the NRA in the Supreme Court. Despite fundamental disagreements on policy, the ACLU stood firm on the principle that government officials should not have the power to stifle speech-based advocacy through coercive regulatory tactics.
The Supreme Court’s decision in NRA v. Vullo reinforces the First Amendment safeguard that prohibits government officials from circumnavigating direct penalties to punish speech they disfavor. This decision is a reminder that freedom of speech is a bedrock of democratic society, protecting not just popular or agreeable speech but also advocacy that some officials might find objectionable.
The case is NRA v. Vullo, US, No. 22-842, 5/30/24.