The National Rifle Association of America logo (STRF/STAR MAX/IPx 2021 ); Supreme Court Justice Sonia Sotomayor speaks during a panel discussion at the winter meeting of the National Governors Association, Feb. 23, 2024 in Washington. (AP Photo/Mark Schiefelbein, File)
The former superintendent of the New York Department of Financial Services appears to have gone too far in her efforts to get insurers to abandon business ties with the National Rifle Association (NRA) in the wake of the Parkland, Florida, massacre and a number of other mass shootings, the U.S. Supreme Court led by Justice Sonia Sotomayor unanimously ruled on Thursday.
In the opinion, Sotomayor explained that, contrary to the holding of that U.S. Court of Appeals for the Second Circuit, the NRA has “plausibly” alleged that Maria Vullo engaged in “viewpoint discrimination” and ran afoul of the First Amendment by using the power of her office to pressure insurers under her agency’s regulatory authority to cut ties with the Second Amendment group as punishment for the NRA’s speech.
Noting that the case was on appeal at the motion to dismiss stage of the proceedings, Sotomayor wrote — and the rest of the court agreed — that the NRA’s allegations, “if true,” are enough to “state a First Amendment claim.”
“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,” Sotomayor concluded.
The justice said that Vullo’s efforts to go after “Carry Guard” — an NRA-offered insurance program through Lockton Companies, LLC, and underwritten by Chubb Limited and Lloyd’s of London that “covered personal-injury and criminal-defense costs related to licensed firearm use” — began in 2017 after a gun control group identified “compliance infirmities in Carry Guard.”
An investigation, the opinion said, “revealed at least two kinds of violations of New York law: that Carry Guard insured intentional criminal acts, and the NRA promoted Carry Guard without the required insurance producer license.”
The state of New York ratcheted up its insurance law enforcement efforts after the Valentine’s Day 2018 massacre of 17 students and staffers at Marjory Stoneman Douglas High School in Parkland, steering the insurers towards consent decrees “in which the insurers admitted violations of New York’s insurance law, agreed not to provide any NRA-endorsed insurance programs (even if lawful), and agreed to pay multimillion dollar fines,” the court summarized.
Vullo in April 2018, with the backing of former New York Gov. Andrew Cuomo (D), published “guidance letters” that cited “social backlash” against the NRA over “several recent horrific shootings, including in Parkland, Florida,” urging insurers and banks to sever ties from the NRA in the interest of “public health and safety” or else they could possibly face enforcement actions.
That seems to be a bridge too far, Sotomayor said, and the Second Circuit’s grant of qualified immunity to Vullo should be revisited.
“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,” the justice wrote. “What she cannot do, however, is use the power of the State to punish or suppress disfavored expression.”
In a concurrence, Justice Ketanji Brown Jackson touched on the government encouragement vs. coercion issue at play, an issue that’s also at the center of another Supreme Court “censorship” case this term.
“Coercion of a third party can be the means by which the government violates the First Amendment rights of another. But the fact of coercion, without more, does not state a First Amendment claim,” Jackson wrote. “Rather, in addition to finding that the government has crossed a line from persuasion to coercion, courts must assess how that coercion actually violates a speaker’s First Amendment rights.”
Notably, the ACLU also backed the NRA in this case, recognizing how New York’s actions could be used to suppress “disfavored political speech” of other advocacy groups.
BREAKING: The Supreme Court ruled unanimously in our case NRA v. Vullo that state governments cannot punish organizations for disfavored political speech.
We represented the NRA before the Supreme Court, arguing that any government attempt to blacklist an advocacy group because…
— ACLU (@ACLU) May 30, 2024
“We represented the NRA before the Supreme Court, arguing that any government attempt to blacklist an advocacy group because of its viewpoint violates the First Amendment — and the highest court in our nation agreed,” the ACLU said.
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