NRA wins free speech case against State of New York

After the country endured another mass shooting -- this one in Parkland, Florida, which killed 17 students and staff members -- the Superintendent of the New York Department of Financial Services -- which regulates insurance companies and financial services companies -- sent a letter to organizations that administered insurance policies to National Rifle Association members. That letter and related comments form the basis for this First Amendment lawsuit that the NRA filed against the State of New York. The Supreme Court says the NRA has a case.

The case is NRA v. Vullo, issued on May 30. Vullo was the Superintendent. The letter mentioned the social backlash that the NRA was facing in the aftermath of the Parkland shootings and that businesses were severing their ties to the NRA as a result. In the "Guidance Letters," Vullo urged the DFS-regulated entities to evaluate and manage their risks, including reputational risks, from their relationship with the NRA, and to review any relationships they have with the NRA or similar gun-rights organizations. Three such entities, including Lloyd's, shortly thereafter entered into consent decrees with the State over allegations that they had violated regulations in providing insurance coverage for intentional acts, among other things. Vullo and Governor Cuomo then issued a press release urging insurance companies and banks in New York to discontinue their relationships with the NRA. 

The Supreme Court rarely takes up a case like this, alleging that governmental directives or guidance letters might violate the free speech rights of a private organization. In 1963, the Court held in Bantam Books v. Sullivan, that the government cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors. The NRA case provides another opportunity to develop this area of the law. 

The general rule is that, to state a claim, the private organization must assert that, in context, the message would be reasonably understood to convey a threat of adverse government action in order to punish or suppress free speech. That the NRA was not the recipient of Vullo's guidance letters is of no moment in this analysis. The Court holds that the NRA states a free speech claim because (1) Vullo has regulatory authority over the insurances companies that did business with the NRA, and (2) Vullo had investigated Lloyd's over insurance-related violations and (3) told insurance executives that DFS had been investigating insurance companies and "was less interested in pursuing those infractions unrelated to any NRA business so long as Lloyd's ceased providing insurance to gun groups, especially the NRA." Vullo also told these entities that she would focus her enforcement actions solely on the organizations with ties to the NRA and ignore other syndicates writing similar policies. This was a thinly-veiled threat, the Supreme Court unanimously holds, and the NRA was the target. 

Writing for the Court, Justice Sotomayor reverses the Second Circuit (where she sat prior to her nomination to the Supreme Court). Here is the heart of the analysis:

As alleged, Vullo’s communications with Lloyd’s can be reasonably understood as a threat or as an inducement. Either of those can be coercive. As Vullo concedes, the “threat need not be explicit,” and as the Solicitor General explains, “[t]he Constitution does not distinguish between ‘comply or I’ll prosecute’ and ‘comply and I’ll look the other way,’” So, whether analyzed as a threat or as an inducement, the conclusion is the same: Vullo allegedly coerced Lloyd’s by saying she would ignore unrelated infractions and focus her enforcement efforts on NRA-related business alone, if Lloyd’s ceased underwriting NRA policies and disassociated from gun-promotion groups.