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A New York officials attempts to push financial institutions to drop their relationships with the National Rifle Association over the groups pro-gun views ran afoul of the Constitution.

That was the unanimous ruling handed down by the Supreme Court of the United States (SCOTUS) on Thursday. The High Court overturned a lower court ruling in favor of former New York Department of Financial Services (DFS) superintendent Maria Vullo and sided with the NRA.

[T]he Court holds that the NRA plausibly alleged that Vullo violated the First Amendment by coercing DFS-regulated entities to terminate their business relationships with the NRA in order to punish or suppress the NRAs advocacy, Justice Sonia Sotomayor, a Barack Obama appointee, wrote for the Court in NRA v. Vullo.

The ruling is a significant symbolic win for the beleaguered gun-rights group. While the decision doesnt represent a final ruling in the case, it does establish what the NRA alleges Vullo did would constitute a Constitutional violation. That finding provides the group with ammunition in court as the case moves forward and in the public arena, where it has long asserted New York officials have attacked it on multiple fronts because of its political views.

Still, the case has no direct impact on the NRAs civil corruption trial, where a New York jury found the groups previous leadership liable for diverting millions in charitable assets toward personal expenses.

NRA v. Vullostems from a series of 2018 letters and meetings between Vullo and insurers who backed NRA products in the state, including a concealed carry insurance program. She warned the companies, which she had regulatory power over, about the reputational risk of continuing to do business with the NRA or any other pro-gun group.

Subject to compliance with applicable laws, the Department encourages its chartered and licensed financial institutions to continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations, if any, as well as continued assessment of compliance with their own codes of social responsibility, Vullo wrote in the letter. The Department encourages regulated institutions to review any relationships they have with the NRA or similar gun promotion organizations, and to take prompt actions to managing these risks and promote public health and safety.

Vullo told the insurers that other companies dropping the gun-rights group was an example of good governance.

There is a fair amount of precedent in the business world where firms have implemented measures in areas such as the environment, healthcare, and civil rights in fulfilling their corporate social responsibility, she said. The recent actions of a number of financial institutions that severed their ties with the NRA and have taken other actions after the AR-15 style rifle killed 17 people in the school in Parkland, Florida, is an example of such a precedent.

The NRA said her actions went beyond the public letters. It alleged she also had conversations with the NRAs insurers, Lloyds of London and Lockton, in which she threatened their businesses if they didnt cut ties with the gun-rights group. The groups did just that shortly after the alleged meetings.

In September 2022, a three-judge panel at the Second Circuit Court of Appeals reversed a lower courts ruling in favor of the NRA. It ruled Vullo acted reasonably and in good faith.

[W]e conclude that the NRA has failed to plausibly allege that Vullo crossed the line between attempts to convince and attempts to coerce,' the panel wrote. Moreover, even assuming that Vullos actions and statements were somehow coercive, we conclude further that her conduct heretaking actions and making statements in her various capacities as regulator, enforcement official, policymaker, and representative of New York Statedid not violate clearly established law.

The Supreme Court slammed that decision in its ruling.

The Second Circuit could only reach this conclusion by taking the allegations in isolation and failing to draw reasonable inferences in the NRAs favor in violation of this Courts precedents, Sotomayor wrote.

Instead, SCOTUS said Vullos alleged actions constituted a coercive threat or inducement directed at the insurers with the goal of harming the NRAs ability to spread its political message.

One can reasonably infer from the complaint that Vullo coerced DFS-regulated entities to cut their ties with the NRA in order to stifle the NRAs gun-promotion advocacy and advance her views on gun control, Sotomayor wrote. Vullo knew, after all, that the NRA relied on insurance and financing to disseminate its message.'

The Court said the allegation that Vullo offered the insurers a behind-closed-doors deal to ignore similar violations by other non-gun groups if they broke ties with the NRA and other pro-gun groups made her intentions clear.

Vullo therefore wanted Lloyds to disassociate from all gun groups, although there was no indication that such groups had unlawful insurance policies similar to the NRAs, Sotomayor wrote. Vullo also told the Lloyds executives she would focus her enforcement actions solely on the syndicates with ties to the NRA, and ignore other syndicates writing similar policies. The message was therefore loud and clear: Lloyds could avoid liability for [unrelated] infractions if it aided DFSs campaign against gun groups by terminating its business relationships with them.

SCOTUS said Vullos alleged actions constituted a use of government force to curtail the free speech rights of her political opponents.

At the heart of the First Amendments Free Speech Clause is the recognition that viewpoint discrimination is uniquely harmful to a free and democratic society, Sotomayor wrote.

Justice Neil Gorsuch, a Donald Trump appointee, wrote a concurrence agreeing with the Courts holding but adding his opinion the four-pronged test used to determine First Amendment violations in cases like NRA v. Vullo should be used more as a guideline rather than a rigid dogma. Justice Ketanji Brown Jackson, a Joe Biden appointee, offered up her own concurrence that argued the case may have worked better as a retaliation claim than a government coercion onesomething she encouraged the lower court to litigate on remand.

The Court sent NRA v. Vullo back down to the Second Circuit Court of Appeals to decide on the validity of the NRAs factual claims and Vullos argument that she is protected by qualified immunity because her actions werent well established as unconstitutional beforehand. In a footnote, the Court emphasized it was required to consider the allegations in the NRAs brief as accurate during this phase of the case and other facts could come to light that might change those facts as the proceedings move forward.

Of course, discovery in this case might show that the allegations of coercion are false, or that certain actions should be understood differently in light of newly disclosed evidence, the Court wrote. At this stage, though, the Court must assume the well-pleaded factual allegations in the complaint are true.

Ultimately, the unanimous Court concluded that Vullos alleged behavior crossed from acceptable advocacy into unconstitutional coercion.

Vullo was free to criticize the NRA and pursue the conceded violations of New York insurance law, Sotomayor wrote. She could not wield her power, however, to threaten enforcement actions against DFS-regulated entities in order to punish or suppress the NRAs gun-promotion advocacy. Because the complaint plausibly alleges that Vullo did just that, the Court holds that the NRA stated a First Amendment violation.

UPDATE 5-30-2024 12:17 PM Eastern: This piece has been updated with additional background and quotes from the Supreme Courts ruling.

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SCOTUS Unanimously Sides With NRA in First Amendment Case - The Reload

The Supreme Court unanimously ruled Thursday for the National Rifle Association in a dispute over whether a New York state official had violated the groups First Amendment rights when she told companies to consider their reputations in doing business with the gun rights group.

The NRA brought the case against Maria Vullo, the former superintendent of the New York Department of Financial Services, saying she pushed financial firms to deny the group services because of its gun rights advocacy.

In a unanimous ruling, Justice Sonia Sotomayor said the group plausibly argued that its rights were violated, reversing the 2nd U.S. Circuit Court of Appeals decision to dismiss the lawsuit.

Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors, Justice Sotomayor wrote.

The decision sends the dispute back to the 2nd U.S. Circuit Court of Appeals for reconsideration.

In the aftermath of the 2018 mass shooting at a high school in Parkland, Florida, Ms. Vullo said that financial services companies should consider whether they should serve pro-gun organizations like the NRA.

New York regulators opened investigations into certain insurance companies that were in business with NRA members. The NRA sued, saying Ms. Vullo was exercising government authority against its free speech rights.

A unanimous three-judge panel of the 2nd U.S. Circuit Court of Appeals ruled in favor of Ms. Vullo, ruling she enjoyed qualified immunity and that her speech was lawful and protected as an exercise in law enforcement.

The NRA took the case to the Supreme Court.

Justice Sotomayor noted that Ms. Vullo struck a deal with an insurance company that had done business with the NRA that the firm would would instruct its syndicates to cease underwriting firearm-related policies and would scale back its NRA-related business.

In exchange, [the Department of Financial Services] would focus its forthcoming affinity-insurance enforcement action solely on those syndicates which served the NRA, and ignore other syndicates writing similar policies, the ruling noted.

It also highlighted the fact that Ms. Vullo praised businesses that severed ties with the NRA as fulfilling their corporate social responsibility.

Vullo was free to criticize the NRA and pursue the conceded violations of New York insurance law. She could not wield her power, however, to threaten enforcement actions against DFS-regulated entities in order to punish or suppress the NRAs gun-promotion advocacy, Justice Sotomayor wrote. Because the complaint plausibly alleges that Vullo did just that, the Court holds that the NRA stated a First Amendment violation.

Neal Katyal, counsel for Ms. Vullo, said they were disappointed in the ruling.

As the Courts decision makes clear, because of the posture of this case, this ruling required the Court to treat the NRAs untested allegations as true even though these allegations have no evidentiary merit, he said. This case will now go back to the Second Circuit, which threw out the lawsuit on qualified immunity grounds before. The Supreme Court did not address the qualified immunity decision of the Second Circuit, and we are confident Ms. Vullos claim of qualified immunity will be reaffirmed.

The American Civil Liberties Union, meanwhile, praised the decision. The ACLU represented the NRA in the dispute, despite the two groups having many disagreements.

Todays decision confirms that government officials have no business using their regulatory authority to blacklist disfavored political groups, said David Cole, an attorney for the ACLU who argued the case. The New York state officials involved here, former Gov. Andrew Cuomo and his chief financial regulator, Maria Vullo, were clear that they sought to punish the NRA because they disagreed with its gun rights advocacy. The Supreme Court has now made crystal clear that this action is unconstitutional.

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Supreme Court unanimously sides with NRA in First Amendment dispute with New York official - Washington Times

The Supreme Court handed down a unanimous victory for the National Rifle Association, the powerful pro-gun organization, on Thursday. Notably, the opinion was authored by Justice Sonia Sotomayor, an Obama appointee and one of the Courts few remaining liberal voices.

Yet nothing about the Courts decision in National Rifle Association v. Vullo should surprise anyone. The case involved an egregious and straightforward violation of the First Amendment, and Sotomayors name on the opinion drives home the fact that theres really only one fair-minded way to decide this case.

Vullo arose out of two moves Maria Vullo, the former superintendent of New York States Department of Financial Services (DFS), took against the NRA. One of these moves was entirely lawful, the other was clearly unconstitutional.

The lawful investigation concerned Carry Guard, an insurance program the NRA offered its members, which would pay the legal bills of a customer who shot someone. Carry Guard, which was provided by third-party insurers but promoted by the NRA, violated New York law in two ways. The NRA promoted it without a license, and it insured New York residents for intentional, reckless, and criminally negligent acts with a firearm that injured or killed another person.

For reasons that should be obvious, New York does not permit insurers to offer policies that pay out if the beneficiary commits an intentional criminal act.

While Vullo was pursuing her investigation into the Carry Guard program eventually imposing millions of dollars in fines on the insurance companies that administered and underwrote Carry Guard a gunman murdered 17 people at a high school in Parkland, Florida. This triggered a widespread backlash against the NRA, including within New Yorks government.

Unfortunately, at least part of New Yorks response to the Parkland shooting was unconstitutional.

Vullo issued two guidance letters to insurers and financial services companies, encouraging them to continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations and to take prompt actions to manag[e] these risks and promote public health and safety.

Notably, Vullo issued these letters while her office was actively seeking millions of dollars worth of fines from the insurance companies responsible for the NRAs Carry Guard program.

Additionally, Vullo allegedly met with one insurance company, Lloyds of London, and told Lloyds that it could avoid liability for unrelated insurance law violations so long as it aided DFSs campaign against gun groups.

So Vullo encouraged many insurers to cut off ties with the NRA at the very moment that she was pursuing a major investigation into three companies that did business with the NRA. And she allegedly offered to shield one company from additional liability if it took further actions against the gun organization.

As Sotomayors opinion explains, thats not allowed.

Perhaps because the opinion is written by Sotomayor, and not by a more right-wing justice who may be eager to use the state of New Yorks blundering treatment of the NRA as an excuse to shut down legitimate enforcement actions against the gun group, the Courts decision also includes some language ensuring that the investigation into Carry Guard remains valid.

Thus, supporters of gun regulation avoided a crushing defeat in Vullo; this case could have ended in a far more sweeping win for the NRA.

The holding of Sotomayors Vullo opinion is straightforward. Vullo was free to criticize the NRA and pursue the conceded violations of New York insurance law, the justice writes. But, she could not wield her power ... to threaten enforcement actions against DFS-regulated entities in order to punish or suppress the NRAs gun-promotion advocacy.

Thus, the Court draws a clear line between the legitimate investigations into Carry Guard and the other efforts to pressure companies to cut ties with the NRA because New Yorks leaders disapproved of the organizations gun rights advocacy.

As Sotomayor writes, this conclusion flows naturally from the Supreme Courts decision in Bantam Books v. Sullivan (1963), which involved a similar effort by a government agency to punish speakers the agency did not like.

Bantam Books concerned the Orwellianly named Rhode Island Commission to Encourage Morality in Youth, a state body that targeted books it deemed objectionable for sale, distribution or display to youths under 18 years of age. The commission sent letters to booksellers asking for their cooperation in removing such books, while also informing these sellers of their duty to recommend to the Attorney General prosecution of purveyors of obscenity.

In at least one case, the commission also sent a police officer to one book distributor it targeted, who asked what steps the distributor had taken to comply with the letter.

Though neither the letter nor the police officer made an explicit threat, such as remove these books or you will be arrested and face criminal charges, Bantam Books concluded that the implicit threat was clear enough, and it held that this sort of coercion violates the First Amendment.

The same logic applies in Vullo. As Sotomayor explains, [A]s DFS superintendent, Vullo had direct regulatory and enforcement authority over all insurance companies and financial service institutions doing business in New York. She had the power to bring civil charges and, as DFSs investigation into Carry Guard shows, to impose significant monetary penalties.

Backed by this authority, Vullo encouraged DFS-regulated entities to discontinu[e] their arrangements with the NRA, including arrangements that were entirely lawful.

Thats not allowed. As Sotomayor writes, Vullo is accused of threatening to wield her power against those refusing to aid her campaign to punish the NRAs gun-promotion advocacy. If those allegations are proven (the case is still at an early stage and has not yet received a full trial), Vullo violated the First Amendment.

Its worth noting that Sotomayors opinion is brief and fairly surgical. It makes clear that Vullos unconstitutional actions do not strip DFS of its authority to sanction legitimate violations of New York law, including the NRAs decision to essentially offer murder insurance.

But her opinion also reaffirms one of the most foundational principles in First Amendment law: Even despicable people have the right to free speech.

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Why Justice Sotomayor just handed the NRA a big Supreme Court victory - Vox.com

John Stockton usually won on the court during his illustrious career with the Utah Jazz, but the Basketball Hall of Famers recordincourt took a hit last week when a judge dismissed his First Amendment lawsuit against Washington Attorney General Bob Ferguson and Washington Medical Commission executive director Kyle Karinen.

U.S. District Judge Thomas Riceruledthat Stocktons case, which he brought with two physicians and the Childrens Health Defense (a nonprofit chaired by presidential candidate Robert F. Kennedy Jr.), was meritless.

The group sued in March, seeking a judicial declaration that the commissions investigations into licensed medical professionals who publish disputed claims about COVID-19 violate the First Amendment and due process rights. Under Washington law, the commission is charged with regulating physicians to assure public confidence in the practice of medicine. It investigates allegations of misrepresentation, fraud, or dishonesty.

Stockton, 62, is not a medical professional and is not regulated by the commission. However, through podcasts and interviews, he has become a public voice on COVID-19. Stockton has criticized COVID-19 vaccines and objected to mask mandates. Stocktons refusal to wear a mask led his alma mater, Gonzaga University, to deny him entry to basketball games in 2022 on grounds he wouldnt follow a school policy.

A resident of Spokane, Stockton says he advocates for all Washingtonians who share his contention that people have the First Amendment right to hear the public soapbox speech of Washington licensed physicians who disagree with the mainstream Covid narrative. The NBAs all-time leader in assists and 10-time all-star argued the commissions prosecution of physicians for offering public opinions not in harmony with the commissions approved messaging amounts to governmental silencing of dissenting views.

Rice found several flaws inStockton et al. v. Ferguson & Karinen.

First, he reasoned the claims are unripe, meaning not yet appropriate for judicial review. The two doctors in the case have not (yet) been sanctioned by the commissionmeaning there is no penalty for the judge to assess.

Although Stockton insists the commissions investigation into physicians has a chilling effect on free speech and will dissuade many physicians from providing their candid opinions, Rice underscored that Stockton and the physicians continue to publicly champion their views. Their advocacy, Rice wrote, tends to cut against any argument speech has been actually chilled.

Rice also reasoned he must abstain from reviewing the claims. Under whats called the Younger Doctrine (from the 1971 U.S. Supreme Court caseYounger v. Harris), a federal court should refrain from considering demands for judicial declarations when there are ongoing state proceedings. The physicians who sued with Stockton are still under investigation by the commission.

The judge added that even if Stocktons lawsuit was ripe and not subject to abstention, it doesnt offer a plausible claim. Washington and other states, Rice stressed, have a long-recognized authority to regulate medical professionals and that authority does not run afoul of the First Amendment.Even if that regulation touches on speech, Rice stressed the First Amendment doesnt bar the states regulation of medicine and professions.

Stockton can appeal to the U.S. Court of Appeals for the Ninth Circuit.

Read the rest here:
John Stockton Loses Case Over Regulation of COVID Speech - Sportico

I thank Steve for his clarification below about his theory of why Trump might have a First Amendment defense in the New York case. As I understand it, Steve's argument can be understood as being about the phrase "another crime" in New York Penal Law 17.50:

A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.

Steve's argument is that the element of concealing the commission of "another crime" has to refer to an act that doesn't just satisfy the elements of a criminal statute, but that, interpreted independently, is a crime that satisfies independent First Amendment review. And so he argues that, if the jury identifies those elements of another criminal law as having been satisfied, that is not "another crime" if there would be a First Amendment defense to liability for those elements independently either under current law, or, if needed, on a better understanding of law as changed by the Supreme Court on appeal from Trump's conviction by overturning the Court's precedent.

This is an interesting argument, and I confess it is not what I thought Steve was arguing in his first post. So I certainly appreciate the clarification, and I apologize to Steve for the misunderstanding. One thought I have in response is that there's a pretty interesting interpretive question raised by Steve's argument. When the New York legislature uses the phrase "another crime" as part of an element, does "another crime" mean the elements of some other criminal law, or is "another crime" more of an independent constitutional concept meaning the elements of some other criminal law only to the extent that the elements could be a free-standing criminal offense without violating the Constitution?

I take it Steve believes the latter. That might be right. But I'm not entirely sure about that. Off the top of my head, I would think it's a question of statutory interpretation rather than the constitutional law of elements of crimes. Offenses have to satisfy the First Amendment as a whole, obviously, but I don't think there is a constitutional problem with a particular element of a crime involving First Amendment protected activities. For example, if a legislature says that it's a crime to punch someone during a protest, the fact that the protest is protected by the First Amendment doesn't mean that punching someone during a protest would be. If I'm right about that, then I would think this ends up an interesting question of statutory interpretation assuming that Steve is right about the First Amendment issue (either under current law or possible future law).

I poked around on Westlaw briefly to see if I could find New York cases on this question, but I didn't come across anything useful. It's a hard question to research, as the relevant terms end up bringing up a lot of unrelated cases. But thanks again to Steve for the clarification, and I'd be interested to know if others make more headway on the statutory question than I did.

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More on the New York Trump Case and the First Amendment - Reason