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The Supreme Court decided Thursday that government officials cannot indirectly suppress free speech through coercion, reinforcing their previous decision in Bantam Books, Inc. v. Sullivan.

Justice Sotomayor, writing for a unanimous court, said 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. 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.

The NRA argued that this is what Maria Vullo, former superintendent of the New York Department of Financial Services (DFS), did when she met with executives and sent guidance letters to insurance companies and financial institutions. During investigations into the NRAs affinity insurance providers following the mass shooting in Parkland, Florida, Vullo conducted meetings and sent guidance letters to overseas institutions, encouraging them to sever their ties to the NRA. These institutions had been underwriting insurance programs offered by the NRA to its members, including the Carry Guard program.

Justice Sotomayor expanded on the decision in Bantam Books, Inc., which stated the First Amendment does not permit government officials to use the threat of invoking legal sanctions and other means of coercionto achieve the suppression [of disfavored speech]. In this case, Vullo, as the superintendent of DFS, had direct regulatory and enforcement authority over all insurance companies and financial service institutions doing business in New York[she] could initiate investigations and refer cases for prosecution. Using her position, Vullo told Lloyds of London, who was facing violations of New York law, that she would focus her enforcement actions solely on the syndicates with ties to the NRA, and ignore other syndicates writing similar policies. The unanimous Court concluded, whether analyzed as a threat or as an inducement, the conclusion is the same: Vullo allegedly coerced Lloyds by saying she would ignore unrelated infractions and focus her enforcement efforts on NRA-related business.

The NRA posted a statement from President Bob Barr on X (formerly Twitter) following the ruling: Regulators are now on notice: this is a win for not only the NRA but every organization who might otherwise suffer from an abuse of government power. William Brewer, an attorney for the NRA, said the ruling was a landmark victory for the NRA and all who care about our First Amendment freedom.

Following the Courts ruling, the case is remanded to re-evaluate the First Amendment claims.

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SCOTUS unanimously backs NRA on First Amendment ruling - JURIST

From Justice Sotomayor's opinion today in NRA v. Vullo (the NRA was represented by the ACLU, with David Cole arguing before the Court; by William Brewer, Sarah Rogers & Noah Peters of Brewer Attorneys & Counselors; and by me):

[B.] In Bantam Books v. Sullivan (1963), this Court explored the distinction between permissible attempts to persuade and impermissible attempts to coerce. There, a state commission used its power to investigate and recommend criminal prosecution to censor publications that, in its view, were "'objectionable'" because they threatened "youthful morals."

The commission sent official notices to a distributor for blacklisted publications that highlighted the commission's "duty to recommend to the Attorney General" violations of the State's obscenity laws. The notices also informed the distributor that the lists of blacklisted publications "were circulated to local police departments," and that the distributor's cooperation in removing the publications from the shelves would "'eliminate the necessity'" of any referral for prosecution. A local police officer also conducted followup visits to ensure compliance. In response, the distributor took "steps to stop further circulation of copies of the listed publications" out of fear of facing "'a court action.'"

The publishers of the blacklisted publications sued the commission, alleging that this scheme of informal censorship violated their First Amendment rights. The commission responded that "it d[id] not regulate or suppress obscenity but simply exhort[ed] booksellers and advise[d] them of their legal rights." This Court sided with the publishers, holding that the commission violated their free-speech rights by coercing the distributor to stop selling and displaying the listed publications.

The Court explained that the First Amendment prohibits government officials from relying on the "threat of invoking legal sanctions and other means of coercion to achieve the suppression" of disfavored speech. Although the commission lacked the "power to apply formal legal sanctions," the distributor "reasonably understood" the commission to threaten adverse action, and thus the distributor's "compliance with the [c]ommission's directives was not voluntary." To reach this conclusion, the Court considered things like: the commission's coordination with law enforcement and its authority to refer matters for prosecution; the notices themselves, which were "phrased virtually as orders" containing "thinly veiled threats to institute criminal proceedings" if the distributor did not come around; and the distributor's reaction to the notices and followup visits.

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.

[C.] To state a claim that the government violated the First Amendment through coercion of a third party, a plaintiff must plausibly allege conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff 's speech. Accepting the well-pleaded factual allegations in the complaint as true, the NRA plausibly alleged that Vullo violated the First Amendment by coercing DFS-regulated entities into disassociating with the NRA in order to punish or suppress the NRA's gun-promotion advocacy.

Consider first Vullo's authority, which serves as a backdrop to the NRA's allegations of coercion. The power that a government official wields, while certainly not dispositive, is relevant to the objective inquiry of whether a reasonable person would perceive the official's communication as coercive. As DFS superintendent, Vullo had direct regulatory and enforcement authority over all insurance companies and financial service institutions doing business in New York. Just like the commission in Bantam Books, Vullo could initiate investigations and refer cases for prosecution. Indeed, she could do much more than that. Vullo also had the power to notice civil charges and, as this case shows, enter into consent decrees that impose significant monetary penalties.

Against this backdrop, consider Vullo's communications with the DFS-regulated entities, particularly with Lloyd's. According to the NRA, Vullo brought a variety of insurance-law violations to the Lloyd's executives' attention during a private meeting in February 2018. The violations included technical infractions that allegedly plagued the affinity insurance market in New York and that were unrelated to any NRA business.

Vullo allegedly said she would be "less interested in pursuing the[se] infractions so long as Lloyd's ceased providing insurance to gun groups, especially the NRA." Vullo therefore wanted Lloyd's to disassociate from all gun groups, although there was no indication that such groups had unlawful insurance policies similar to the NRA's.

Vullo also told the Lloyd's 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: Lloyd's "could avoid liability for [unrelated] infractions" if it "aided DFS's campaign against gun groups" by terminating its business relationships with them.

As alleged, Vullo's communications with Lloyd's can be reasonably understood as a threat or as an inducement. Either of those can be coercive. As Vullo concedes, the "threat need not be explicit," and as the Solicitor General explains, "[t]he Constitution does not distinguish between 'comply or I'll prosecute' and 'comply and I'll look the other way.'" Vullo allegedly coerced Lloyd's by saying she would ignore unrelated infractions and focus her enforcement efforts on NRA-related business alone, if Lloyd's ceased underwriting NRA policies and disassociated from gun-promotion groups.

The reaction from Lloyd's further confirms the communications' coercive nature. At the meeting itself, Lloyd's "agreed that it would instruct its syndicates to cease underwriting firearm-related policies and would scale back its NRA-related business." Minutes from a subsequent board of directors' meeting reveal that Lloyd's thought "the DFS investigation had transformed the gun issue into 'a regulatory, legal[,] and compliance matter.'" That reaction is consistent with Lloyd's public announcement that it had directed its syndicates to "terminate all insurance related to the NRA and not to provide any insurance to the NRA in the future."

Other allegations, viewed in context, reinforce the NRA's First Amendment claim. Consider the April 2018 Guidance Letters and accompanying press release, which Vullo issued on official letterhead. Just like in her meeting with the Lloyd's executives, here too Vullo singled out the NRA and other gun-promotion organizations as the targets of her call to action.

This time, the Guidance Letters reminded DFS-regulated entities of their obligation to consider their "reputational risks," and then tied that obligation to an encouragement for "prompt actio[n] to manag[e] these risks." Evocative of Vullo's private conversation with the Lloyd's executives a few weeks earlier, the press release revealed how to manage the risks by encouraging DFS-regulated entities to "'discontinu[e] their arrangements with the NRA,'" just like Chubb did when it stopped underwriting Carry Guard. A follow-on tweet from Cuomo reaffirmed the message: Businesses in New York should "'consider their reputations'" and "'revisit any ties they have to the NRA,'" which he called "'an extremist organization.'"

[T]his Court cannot simply credit Vullo's assertion that "pursuing conceded violations of the law" is an "'obvious alternative explanation'" for her actions that defeats the plausibility of any coercive threat raising First Amendment concerns. 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. At this stage, though, the Court must assume the well-pleaded factual allegations in the complaint are true.

{Vullo also argues that she is entitled to absolute prosecutorial immunity for her enforcement actions. Putting aside whether a financial regulator like Vullo is entitled to such immunity in the administrative context, because Vullo did not raise this defense below with respect to the First Amendment claim (or even with respect to allegations unrelated to the consent decrees), the Court declines to consider that argument here in the first instance.}

[D.] Moreover, the conceded illegality of the NRA-endorsed insurance programs does not insulate Vullo from First Amendment scrutiny under the Bantam Books framework. Indeed, the commission in that case targeted the distribution and display of material that, in its view, violated the State's obscenity laws. Nothing in that case turned on the distributor's compliance with state law. On the contrary, Bantam Books held that the commission violated the First Amendment by invoking legal sanctions to suppress disfavored publications, some of which may or may not contain protected speech (i.e., nonobscene material).

Here, too, although Vullo can pursue violations of state insurance law, she cannot do so in order to punish or suppress the NRA's protected expression. So, the contention that the NRA and the insurers violated New York law does not excuse Vullo from allegedly employing coercive threats to stifle gun-promotion advocacy.

[E.] That Vullo "regulate[d]" business activities stemming from the NRA's "relationships with insurers and banks" does not change the allegations that her actions were aimed at punishing or suppressing speech. 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 NRA's gun-promotion advocacy and advance her views on gun control. Vullo knew, after all, that the NRA relied on insurance and financing "to disseminate its message." {Vullo's boss, Governor Cuomo, also urged businesses to disassociate with the NRA to put the organization "into financial jeopardy" and "shut them down."}

The NRA's allegations, if true, highlight the constitutional concerns with the kind of intermediary strategy that Vullo purportedly adopted to target the NRA's advocacy. Such a strategy allows government officials to "expand their regulatory jurisdiction to suppress the speech of organizations that they have no direct control over." It also allows government officials to be more effective in their speech-suppression efforts "[b]ecause intermediaries will often be less invested in the speaker's message and thus less likely to risk the regulator's ire."

The allegations here bear this out. Although "the NRA was not even the directly regulated party," Vullo allegedly used the power of her office to target gun promotion by going after the NRA's business partners. Insurers in turn followed Vullo's lead, fearing regulatory hostility.

[F.] [N]othing here prevents government officials from forcefully condemning views with which they disagree. For those permissible actions, the Constitution "relies first and foremost on the ballot box, not on rules against viewpoint discrimination, to check the government when it speaks." Yet where, as here, a government official makes coercive threats in a private meeting behind closed doors, the "ballot box" is an especially poor check on that official's authority. Ultimately, the critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries.

Justice Gorsuch filed a one-paragraph concurrence concluding that courts should focus on deciding whether the plaintiff has "plausibly allege[d] conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff 's speech," rather than trying to articulate any multifactor tests (as some lower courts have done in this area) elaborating on this core question.

Justice Jackson also concurred, highlighting the fact that some government coercion can directly stifle speech (for instance, when the government is coercing bookstores not to carry a book) while other coercion retaliates against protected speech (for instance, when the government is coercing financial intermediaries not to do business with speakers). Both may violate the First Amendment, but, she argued, they should be analyzed somewhat differently; read her opinion (PDF pp. 26-31) for more details.

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Unanimous First Amendment Victory for the NRA (Represented by the ACLU) - Reason

The U.S. Supreme Court unanimously held this morning that the NRA can proceed in its lawsuit against New York bureaucrats who tried use their regulatory powers over banks to intimidate them into cutting financial ties with the NRAout of their disagreement with the NRAs beliefs. As we argued in the brief we filed, todays pervasive regulatory state makes this a particularly serious threat: it enables bureaucrats to pressure private businesses in ways that violate the Constitutionand government officials are sometimes quite proud of the fact.

In 2012, for example, the mayors of Chicago, Boston, Washington, D.C., and San Francisco all told Chick-fil-A restaurants that they were not welcome in those cities due to the fact that the owners (devout Christians) donated money to anti-same-sex marriage organizations. Since these restaurants need approval from zoning boards and other regulators, that kind of threat is obviously quite seriousand the owners were Chick-fil-A were forced to back down and cease donating to these organizations. Thats a clear violation of the First Amendment right to freedom of expression.

During the oral argument in the NRAs case, in fact, the governments lawyer even brought up this argument. Former Solicitor General Neil Katyal claimed that lawsuits like the NRAs should be barred because many other individuals or companies might challenge the legality of government orders that seek to retaliate against speakers. [What] they want to do [is] to open up lawsuits for when Chick-fil-A isnt being zoned in the right place, said former Solicitor General Neil Katyal. Allowing First Amendment lawsuits under circumstances like these would open the floodgates to litigation.

But the Court rejected the floodgates argument. Where, as here, a government official makes coercive threats in a private meeting behind closed doors, wrote Justice Sonia Sotomayor, the ballot box is an especially poor check on that officials authority. Ultimately, the critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries [such as the regulated banks]. Since a government official cannot do indirectly what she is barred from doing directly, and the government isnt allowed to punish the NRA, or Chick-fil-A, for its expression of its beliefs, then government regulators are also prohibited from nudging censorship, by pressuring people not to do business with those the government dislikes.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institutes Scharf-Norton Center for Constitutional Litigation and holds the Duncan Chair in Constitutional Government.

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Supreme Court Says Government Bullying Can Violate the First Amendment - Goldwater Institute

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