SCOTUS Sides With NRA in First Amendment Dispute

In National Rifle Association of America v. Vullo, 602 U.S. ____ (2024), the U.S. Supreme Court ruled that the National Rifle Association (NRA) may continue its First Amendment lawsuit against the former head of New York’s Department of Financial Services. According to the Court, the NRA plausibly alleged that Maria Vullo violated the First Amendment by coercing regulated entities to terminate their business relationships with the NRA in order to punish or suppress gun-promotion advocacy.

Facts of the Case

As set forth in the Court’s opinion, DFS regulates insurance companies and financial services institutions doing business in New York, and has the power to initiate investigations and civil enforcement actions, as well as to refer matters for criminal prosecution. The NRA contracted with DFS-regulated entities— affiliates of Lockton Companies, LLC (Lockton)—to administer insurance policies the NRA offered as a benefit to its members, which Chubb Limited (Chubb) and Lloyd’s of London (Lloyd’s) would then underwrite.

In 2017, Vullo began investigating one of these affinity insurance policies—Carry Guard—on a tip passed along from a gun-control advocacy group. The investigation revealed that Carry Guard insured gun owners from intentional criminal acts in violation of New York law, and that the NRA promoted Carry Guard without the required insurance producer license. Lockton and Chubb subsequently suspended Carry Guard. Vullo then expanded her investigation into the NRA’s other affinity insurance programs.

On February 27, 2018, Vullo met with senior executives at Lloyd’s,expressed her views in favor of gun control, and told the Lloyd’s executives “that DFS was less interested in pursuing” infractions unrelated to any NRA business “so long as Lloyd’s ceased providing insurance to gun groups, especially the NRA.” Vullo and Lloyd’s struck a deal: Lloyd’s “would instruct its syndicates to cease underwriting firearm-related policies and would scale back its NRA-related business,” and “in exchange, DFS would focus its forthcoming affinity-insurance enforcement action solely on those syndicates which served the NRA.”

Supreme Court’s Decision

The Supreme Court unanimously reinstated the NRA’s claim, holding that it plausibly alleged that Vullo violated the First Amendment by coercing regulated entities to terminate their business relationships with the NRA in order to punish or suppress gun-promotion advocacy.

“As superintendent of the New York Department of Financial Services, Vullo allegedly pressured regulated entities to help her stifle the NRA’s pro-gun advocacy by threatening enforcement actions against those entities that refused to disassociate from the NRA and other gun-promotion advocacy groups,” Justice Sonia Sotomayor wrote. “Those allegations, if true, state a First Amendment claim.”

In reaching its decision, the Supreme Court emphasized that while a government official can share her views freely and criticize particular beliefs in the hopes of persuading others, she may not use the power of her office to punish or suppress disfavored expression.

The Supreme Court also reaffirmed its holding in Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) 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. Under Bantam Books, 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 speech.

In this case, the Court found that 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. In support, the Court cited Vullo’s statements, concluding that her message was 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.

The Court rejected the argument that the conceded illegality of the NRA-endorsed insurance programs insulated Vullo from First Amendment scrutiny under Bantam Books. It also dismissed Vullo’s claims that the NRA’s position, if accepted, would stifle government speech and hamper legitimate enforcement efforts. According to the Court, its conclusion “simply reaffirms the general principle that where, as here, the complaint plausibly alleges coercive threats aimed at punishing or suppressing disfavored speech, the plaintiff states a First Amendment claim.”

Finally, the Court emphasized the limits of its ruling. As Justice Sotomayor explained:

Nothing in this case gives advocacy groups like the NRA a “right to absolute immunity from [government] investigation,” or a “right to disregard [state or federal] laws.” Similarly, nothing 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.

The Supreme Court remanded the case back to the Second Circuit to evaluate the NRA’s claims in accordance with its opinion.