We say this even though the winner in this case is the NRA, a party synonymous with constitutionally dubious and socially harmful resistance to gun control laws, but it is precisely because the NRA’s Second Amendment position is so objectionable to so many that it was important for the Court to protect the NRA’s First Amendment rights.
The case began when Democrat-leaning New York state officials tried to indirectly pressure the NRA following the 2018 Parkland High School shooting. Maria Vullo, the former head of the New York State Department of Financial Services, had authority overseeing financial services companies operating in New York. Vullo allegedly used that authority to encourage some of these companies to avoid the NRA. Specifically, Vullo allegedly informed executives at Lloyd’s of London that regulatory action would be less likely if they severed ties with the NRA.
Vullo issued a “guidance” document urging companies to “continue to assess and manage the risks, including reputational risks, that may arise from doing business with the NRA and similar pro-gun groups” and to “take prompt action to manage these risks and promote public health and safety.” She issued a joint news release with then-Governor Andrew M. Cuomo (Democrat) urging companies to stop doing business with the NRA. Several insurers caved in to the pressure campaign.
The obvious problem is that this could set a precedent not only for other unpopular organizations in New York State, but also for organizations that are as unpopular in Republican states as the NRA is in Democratic states. Consider, for example, that Planned Parenthood could face similar tactics in Louisiana. This is why David Cole, national legal director of the American Civil Liberties Union, defended the conservative NRA in the Supreme Court, in keeping with the best free speech traditions of this generally liberal-leaning organization. This is also why other free speech groups, such as the Foundation for Individual Rights in Education, have supported the NRA. While the case is not explicitly related to campus speech issues, FIRE saw it as a challenge to informal but real coercive attempts to restrict objectionable speech, similar to the pressure sometimes exerted by administrators on college campuses.
Certainly, state officials like Vullo are well within their rights to punish actual violations of the law by companies that do business with NRA members, explained Justice Sonia Sotomayor, and to speak out against gun violence and the NRA. But they “cannot use state power to punish or suppress expression they find objectionable,” Sotomayor wrote. “At the heart of the First Amendment’s Free Speech Clause is the recognition that view-based discrimination is particularly harmful to a free and democratic society.”
The Supreme Court’s decision reinforces an important message sent more than 60 years ago in the 1963 case. Bantam Books v. Sullivan. In that case, the justices said it was unconstitutional for the Rhode Island Commission on the Promotion of Juvenile Morals (as such an agency existed at the time) to warn booksellers that they could face criminal penalties if they distributed certain “objectionable” books.
Vullo denies that he threatened, extorted or retaliated against anyone. His lawyer, Neal Katyal, argues that Vullo was simply enforcing the law and that the letters were a “routine and important step.” He said he believes that when the case is reviewed by the New York-based Second Circuit Court of Appeals, as the Supreme Court has ordered, Vullo will be protected by “qualified immunity,” a doctrine that protects government officials from lawsuits unless past precedent has “clearly established” that their actions were unlawful.
Lower courts may or may not accept this particular argument, but what matters going forward is what the unanimous Supreme Court has just made clear: The Constitution does not allow state regulators to force companies to boycott controversial speakers.
