One might hope the US Supreme Court’s unanimity in National Rifle Association of America v. Vullo provides clarity on two key issues of First Amendment jurisprudence: When does government action against a private party’s views constitute unconstitutional censorship? And what role does government officials’ speech play in identifying unconstitutional intent?
The decision, however, poses as many questions as it answers. In an opinion joined by all nine justices, Justice Sonia Sotomayor wrote that the NRA’s complaint against Maria Vullo, superintendent of the New York State Department of Financial Services, stated a valid First Amendment cause of action and may proceed. The eventual outcome for the NRA remains uncertain as the litigation is still in its early stages.
Events leading to the dispute began in 2017 when the DFS started investigating an NRA-affiliated insurance program, Carry Guard, which was insuring against liability for intentional criminal acts—an offering illegal in New York. The NRA was promoting Carry Guard without an insurance producer license, also in apparent violation of New York law. More details on Carry Guard were reported by The Trace in 2017.
During the investigation, and following the Marjory Stoneman Douglas High School shootings, Vullo and others met with insurance companies doing business with the NRA, including Lloyd’s of London. The complaint alleges Vullo and then-Gov. Andrew Cuomo (D-NY) coerced these companies into severing ties with the NRA by using the threat of adverse regulatory actions due to the NRA’s advocacy for gun rights.
Despite reversing the US Court of Appeals for the Second Circuit, Sotomayor’s opinion speaks approvingly of the lower court’s framework for determining whether a government communication is unconstitutionally coercive. The Second Circuit outlined several factors: word choice and tone, the existence of regulatory authority, whether the speech was perceived as a threat, and importantly, whether the speech referred to adverse consequences.
In this case, Vullo had clear regulatory and enforcement authority over all insurance companies in New York. The language of her communications suggested that firms like Lloyd’s could avoid potential law enforcement actions by terminating their arrangements with pro-gun groups. As a result, Lloyd’s response indicated it understood Vullo’s communication as a threat.
While the Supreme Court’s reaction was unanimous, the reach of the opinion remains uncertain. As Justice Ketanji Brown Jackson noted in her concurrence, the case is quite unlike the 1963 precedent, Bantam Books v. Sullivan, which dealt with a Rhode Island commission coercing intermediaries to withdraw publications, thereby violating the First Amendment.
The Vullo ruling does not address whether the superintendent’s actions were intended to punish the NRA rather than censor it. Given that the NRA might have been acting unlawfully, the question remains whether Vullo’s actions were legitimate law enforcement activities despite any alleged retaliatory intent.
One pertinent question remains: How would the court’s analysis apply if, hypothetically, a city’s health department targeted restaurants serving student protesters for potential code violations?
Sotomayor’s opinion echoes her dissenting plea in Trump v. Hawaii to invalidate a presidential proclamation with anti-Muslim animus. However, a five-justice majority held that the Court had to consider the executive authority’s neutrality in reviewing such directives.
In Vullo, the superintendent’s regulatory authority made her more vulnerable to coercion allegations, whereas, in Trump v. Hawaii, presidential authority lent a presumption of neutrality. It remains unclear how the situation would differ in varied contexts, including the upcoming case Murthy v. Missouri, which addresses possible coercion by the Biden administration concerning social media companies’ handling of Covid-19 misinformation.
A decision in Murthy finding coercion without specific threats could extend Vullo‘s influence on limiting governmental influence over public information flow.
The case is NRA v. Vullo, US, No. 22-842, 5/30/24.