Supreme Court unanimously rules for NRA in free speech fight

The Supreme Court unanimously ruled Thursday that the National Rifle Association (NRA) can move forward in its free speech fight against a former New York regulator.

Authored by liberal Justice Sonia Sotomayor, the ruling revives the gun-rights group’s First Amendment claim against Maria Vullo, who formerly ran the New York Department of Financial Services.

Vullo began investigating the NRA in 2017, and the probe led her to encourage insurers and banks she regulated to sever ties with the gun-rights group after the Parkland, Fla., school shooting that killed 17 students and staff and reignited a national debate surrounding gun control measures.

The NRA contended Vullo’s steps went beyond permissible advocacy and crossed into unconstitutional government coercion.

Thursday’s decision enables the NRA’s case to proceed, but the gun-rights group won’t necessarily pull out a victory in the end, as its legal burden will rise in later stages. The justices also made clear that a lower court could still find Vullo is entitled to qualified immunity, even if her actions were unconstitutional.

“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 NRA’s gun-promotion advocacy,” the opinion continued. “Because the complaint plausibly alleges that Vullo did just that, the Court holds that the NRA stated a First Amendment violation.”

The case drew some unusual battle lines.

Despite their deep disagreement on the Second Amendment, the American Civil Liberties Union represented the NRA before the high court in its fight, the first time the groups had teamed up.

“This is a landmark victory for the NRA and all who care about our First Amendment freedom,” said William A. Brewer III, counsel to the NRA, in a statement. “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.”

Vullo’s lawyer argued that her investigation constituted permissible government speech and legitimate law enforcement.

The regulator was investigating NRA-endorsed insurance programs, leading some companies to acknowledge their programs were unlawful. The NRA also took aim at comments Vullo made during an alleged private meeting with Lloyd’s, an insurance giant.

“We are disappointed by the Court’s decision,” said Neal Katyal, who argued the case on behalf of Vullo, in a statement. 

“As the Court’s decision makes clear, because of the posture of this case, this ruling required the Court to treat the NRA’s untested allegations as true even though these allegations have no evidentiary merit,” Katyal continued. “The NRA’s allegations about the Lloyd’s meetings are false, and Ms. Vullo did not threaten, coerce or retaliate against anyone in the performance of her duties.”

When the Supreme Court heard the case in March, several justices appeared persuaded by the NRA’s arguments — though Sotomayor, who wrote the majority opinion, at one point pushed back.

She suggested to the NRA’s counsel at one point “it seems to me you’re trying to” break new ground in the court’s First Amendment case law.

“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 wrote in the high court’s opinion Thursday.

Though all of the justices joined Sotomayor’s opinion, two members of the bench also wrote separately.

Conservative Justice Neil Gorsuch wrote a brief, one-paragraph opinion to further explain his understanding of the court’s ruling.

And liberal Justice Ketanji Brown Jackson wrote in a concurring opinion that the lower courts had improperly lumped together the NRA’s censorship and retaliation claims, encouraging that they be disentangled as the case moves forward.

“On remand, the parties and lower courts should consider the censorship and retaliation theories independently, mindful of the distinction between government coercion and the ways in which such coercion might (or might not) have violated the NRA’s constitutional rights,” Jackson wrote.

Updated at 11:47 a.m. EDT