WASHINGTON — The U.S. Supreme Court on Monday grappled with whether a New York state official can be sued for violating the National Rifle Association’s constitutional free speech rights by allegedly pressuring banks and insurers to avoid doing business with the influential group due to its gun rights advocacy.
The NRA is seeking to revive its 2018 lawsuit accusing Maria Vullo, a former superintendent of New York’s Department of Financial Services, of unlawfully retaliating against it following a mass shooting in which 17 people were killed at a high school in Parkland, Florida.
The justices heard arguments in the NRA’s appeal of a lower court’s decision to throw out its suit against Vullo. At issue is whether Vullo wielded her regulatory power to coerce New York financial institutions into cutting ties with the NRA in violation of free speech protections under the U.S. Constitution’s First Amendment.
Some questions posed by the justices aimed at distinguishing permissible government advocacy from unlawful pressure.
“How do you define when it goes too far?” conservative Justice Samuel Alito asked David Cole, a lawyer with the ACLU civil rights advocacy group that represented the NRA.
Cole argued that Vullo and other New York officials abused their authority in violation of the First Amendment, telling the justices: “There’s no question on this record that they encouraged people to punish the NRA.”
Vullo in 2018 called upon banks and insurers to consider the “reputational risks” of doing business with gun rights groups following the Parkland shootings.
She later fined Lloyd’s of London and two other insurers more than $13 million for offering an NRA-endorsed product called “Carry Guard” that Vullo’s office found was in violation of New York insurance law. The product provided liability coverage for policyholders who caused injuries from gunfire, even in cases involving the wrongful use of a firearm.
The insurers agreed to stop selling NRA-endorsed products that New York considered illegal.
The NRA’s lawsuit, seeking unspecified monetary damages, accused Vullo of unlawfully retaliating against the group for its constitutionally protected gun rights advocacy by targeting it with an “implicit censorship regime.” The suit alleged that the state’s “blacklisting” campaign sought to deprive the NRA of basic financial services and threatened its advocacy work.
Ephraim McDowell, the Justice Department lawyer representing President Joe Biden’s administration, urged the justices to let the NRA pursue its lawsuit, arguing that the group had plausibly alleged that Vullo had violated its First Amendment rights.
McDowell focused on the NRA’s claim that Vullo met with insurance executives at Lloyd’s, presenting her views on gun control and suggested going easy on regulatory infractions if the company stopped providing insurance for the NRA.
“That’s an explicit threat,” said McDowell, an assistant to the U.S. solicitor general.
‘A bit jarring’
Conservative Justice Brett Kavanaugh pressed attorney Neal Katyal, representing Vullo, to explain why the Biden administration backed the NRA given the government’s interest in protecting its right to advocate its point of view.
“It’s a bit jarring, I guess for me, that the solicitor general is on the other side of you on this case,” Kavanaugh said.
Vullo said in court papers her statements encouraging financial institutions to examine their ties to pro-gun organizations following the Parkland shooting had not “crossed the line between permissible persuasion and unconstitutional coercion.”
Katyal accused the NRA of “seeking to weaponize the First Amendment and exempt themselves from the rules that govern you and me simply because they’re a controversial speaker.”
“When you’re in a situation like this of conceded illegality,” Katyal said, “there is an obvious alternative explanation for what Ms. Vullo was doing here, which was enforcing the law.”
A federal judge in 2021 dismissed all claims apart from two free speech claims against Vullo. The Manhattan-based 2nd U.S. Circuit Court of Appeals in 2022 said those also should have been dismissed, prompting the NRA’s Supreme Court appeal.
The NRA originally also named Vullo’s department and then-New York Governor Andrew Cuomo, a Democrat, as defendants but the case was subsequently narrowed. Vullo was sued in both her official and personal capacities. The 2nd Circuit found that Vullo would be protected from suit under the legal defense of qualified immunity that shields officials from civil litigation in certain circumstances.
The NRA, the largest and most powerful gun rights organization in the United States, has been instrumental in thwarting Democratic-backed gun restrictions in the U.S. Congress. It is a nonprofit group organized under the laws of New York state, with its main offices in Virginia.
Its appeal heard Monday was the latest case to come before the Supreme Court involving the NRA, a group closely aligned with Republicans that has opposed gun control measures and backed pivotal lawsuits that have widened U.S. gun rights.
The Supreme Court, which has a 6-3 conservative majority, has taken an expansive view of gun rights.
A ruling is expected by the end of June.
…
