Supreme Court Unanimously Rules for NRA in First Amendment Case Against Former New York Regulator

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On May 30, 2024, Brewer client, the National Rifle Association of America (NRA), scored a historic legal victory in one of the most closely followed First Amendment cases in the nation.

In a stinging rebuke of New York’s “blacklisting campaign” against the NRA, the Supreme Court unanimously ruled for the NRA in its case against former New York State Department of Financial Services Superintendent Maria T. Vullo. The decision remands the NRA’s case to the lower court – reviving the NRA’s claims that Vullo, at the behest of former New York Governor Andrew Cuomo, violated the NRA’s First Amendment rights when she urged banks and insurers to cut ties with the NRA in 2018.

““This is a landmark victory for the NRA and all who care about our First Amendment freedom. The opinion confirms what the NRA has known all along: New York government officials abused the power of their office to silence a political enemy. This is a victory for the NRA’s millions of members and the freedoms that define America.” ”

— William A. Brewer III, counsel to the NRA

The opinion of the court, written by Justice Sonia Sotomayor, states, “Six decades ago, this Court held that a government entity’s ‘threat of invoking legal sanctions and other means of coercion’ against a third party ‘to achieve the suppression’ of disfavored speech violates the First Amendment… Today, the Court reaffirms what it said then: Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors. Petitioner National Rifle Association (NRA) plausibly alleges that respondent Maria Vullo did just that.”

“This victory is a win for the NRA in the fight to protect freedom,” says NRA President Bob Barr. “This is a historic moment for the NRA in its stand against governmental overreach. Let this be clear: the voice of the NRA membership is as loud and influential as ever. 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.”

In the opinion, Justice Sotomayor writes that Vullo was “free to criticize the NRA” but “could not wield her power, however, to threaten enforcement actions against DFS-regulated entities in order to punish or suppress the NRA’s gun-promotion advocacy.”

Justice Sotomayor continues, “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.”

The History of the Case

In a May 2018 lawsuit, the NRA alleged that Vullo, at the urging of Governor Cuomo, took aim at the NRA and conspired to use DFS’ regulatory power to “financially blacklist” the NRA – coercing banks and insurers to cut ties with the Association to suppress its pro-Second Amendment speech. The NRA argues that Vullo’s actions were meant to silence the NRA – using “guidance letters,” backroom threats, and other measures to cause financial institutions to “drop” the Association.

The NRA's First Amendment claims withstood multiple motions to dismiss. But in 2022, after Vullo appealed the trial court’s ruling, the Second Circuit struck down the NRA’s claims. The court ruled that in an era of “enhanced corporate social responsibility,” it was reasonable for New York's financial regulator to warn banks and insurance companies against servicing pro-gun groups based on the supposed “social backlash” against those groups’ advocacy. The court also ruled that Vullo’s guidance – written on her official letterhead and invoking her regulatory powers – was not a directive to the institutions she regulated, but rather a mere expression of her political preferences.

On February 7, 2023, the NRA petitioned the U.S. Supreme Court, seeking review of the Second Circuit decision. On November 3, 2023, the Court granted review of the case.

Twenty-two amicus briefs representing more than 190 individuals and organizations were filed in support of the NRA’s position, including a filing by several of the nation’s foremost First Amendment scholars. The amicus briefs also included a joint filing by dozens of congressional Republicans and filings by 25 state attorneys general. The support came from across the political spectrum.

On Monday, March 18, 2024, the Court heard oral arguments in the case. ACLU National Legal Director and NRA counsel David Cole argued that Vullo and other New York officials abused their authority in violation of the First Amendment, telling the justices: “There's no question on this record that they encouraged people to punish the NRA.” Cole said, “It was a campaign by the state’s highest political officials to use their power to coerce a boycott of a political advocacy organization because they disagreed with its advocacy.”

Eugene Volokh joined Brewer and the ACLU in representing the NRA, along with Brewer partners Sarah B. Rogers and Noah Peters.

Related News

• “A Unanimous Supreme Court Backs the NRA on Free Speech,” The Wall Street Journal

• “Supreme Court Unanimously Rules for NRA in Free Speech Fight,” The Hill

• “Unanimous Supreme Court Backs NRA in First Amendment Clash with New York Official,” MSN

• “Justices Seem Likely to Side with NRA in First Amendment Dispute,” The New York Times

• “Editorial: NRA Case Shows the Supreme Court Must Stop Informal Censorship,” Bloomberg Law

• “Justices Told NRA Speech Would Thwart Regulation,” Law360

• “The ACLU Has a New Client: The National Rifle Association,” The New York Times

• “Supreme Court to Hear N.R.A.’s Free Speech Case Against New York Official,” The New York Times

• “NRA Sues New York After Insurance Crackdown,” The Wall Street Journal 

• “NRA Sues New York Governor, Regulator for ‘Blacklisting Campaign,’” Reuters 

• “Commentary: The NRA vs. Authoritarianism,” The Wall Street Journal 

• “Cuomo Targets the NRA – and Free Speech,” Albany Times Union 

• “The NRA Has Declared War on Andrew Cuomo,” The New York Times 

• “To Limit the Second Amendment, New York Attacks the First,” The National Review 

• “Andrew Cuomo is Now at War with the Bill of Rights,” The New York Post 

• “Worse Than Taking Away Guns, New York Threatens to Take Away NRA’s Insurance,” Sinclair Media Group

• “ACLU Supports NRA’s Free-Speech Argument in Suit Against Cuomo Administration,” New York Law Journal

• “NRA Secures New Documents in Bid to Revive Selective Enforcement Claims Against NY Officials,” New York Law Journal

• “NRA Says New York Probe Goes Beyond So-Called ‘Murder Insurance’,” Bloomberg

• “NRA Seeks 2nd Circ. Rehearing In Free Speech Dispute,” Law360