NRA v. Vullo: Unanimous Supreme Court Stands Tall Against Attempts to Coerce Speech

“At the heart of the First Amendment’s Free Speech Clause is the recognition that viewpoint discrimination is uniquely harmful to a free and democratic society.”
 
This declaration comes from a unanimous opinion, authored by Justice Sonia Sotomayor, that clears the way for the National Rifle Association to pursue a First Amendment claim against a New York insurance regulator who had twisted the arms of insurance companies and banks to blacklist the Second Amendment advocacy group. The NRA was represented by Protect The 1st Senior Legal Advisor Eugene Volokh, as well as the American Civil Liberties Union.
 
Maria T. Vullo, superintendent of New York’s Department of Financial Services, had earlier found that NRA’s affinity insurance benefits for members were constructed and sold in a way that violated New York law. Vullo then pushed beyond her regulatory purview into an attempt to punish speech.
 
Vullo met with Lloyd’s of London executives in 2018 to bring to their attention technical infractions that plagued the affinity insurance market in New York, unrelated to NRA business. Vullo told the executives that she would be “less interested” in pursuing these infractions “so long as Lloyd’s ceased providing insurance to gun groups.” She added that she would “focus” her enforcement actions “solely” on the syndicates with ties to the NRA, “and ignore other syndicates writing similar policies.” Vullo followed up with guidance letters to insurance companies and financial services firms extolling the severance of ties with the NRA as a way for companies to fulfill their “corporate social responsibility.”
 
“As alleged, Vullo’s communications with Lloyd’s can be reasonably understood as a threat or as an inducement,” the Court found. “Either of those can be coercive.” The Court quoted a Seventh Circuit opinion regarding a sheriff who interfered with a website by coercing its payment-services providers: “The analogy is to killing a person by cutting off his oxygen rather than by shooting him.”
 
The core of the Court’s opinion rested on Bantam Books v. Sullivan, which involved a Rhode Island state commission that sought to censor books by prohibiting distributors from moving targeted books to stores. Compliance was assured by police offers dispatched to the distribution companies to check their records. The Supreme Court held that the commission’s actions amounted to censorship. In this case, the Court found:
 
“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.”
 
The Supreme Court’s opinion vacates the Second Circuit’s reversal of a lower court opinion, and remands it for adjudication under this ruling. When that case is heard again, the judges of the Second Circuit will have these words of this unanimous opinion ringing in their ears:
 
“[T]he 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.”