Free Speech & Firearms: The NRA’s First Amendment Case Before the Supreme Court

by Kate Brewer, Associate Member, University of Cincinnati Law Review Vol. 92

I. Introduction

The Supreme Court will soon decide upon a case involving the First Amendment rights of organizations that may come with significant implications. The National Rifle Association (“NRA”) has appealed a case against a New York government official to the high court to decide whether the official’s actions violated their First Amendment rights, following a decision that ruled against the NRA’s favor. This case is of interest because of the possible implications its decision may have on other cases, such as Murthy v. Missouri, and on government officials’ free speech rights.

This article explores the NRA’s case against Maria Vullo, the First Amendment rights of organizations and government officials, how the Supreme Court may rule, and the possible implications that may result. Part II provides the factual and procedural background of the case. Part III discusses the merits of the NRA’s arguments. Finally, Part IV concludes by summarizing the Supreme Court’s possible considerations and the repercussions this decision may have.

II. Background

In 2018, the NRA filed a lawsuit against Maria Vullo, who was then serving as the superintendent of the New York Department of Financial Services (“DFS”).¹ The matter began with DFS investigating NRA-endorsed insurance programs that were illegal under New York law and provided protection against fault for gun-related offenses.² Later, DFS issued a guidance warning to banks and insurers against affiliations with gun promotion organizations such as the NRA due to possible reputational risks.³ Consequently, the NRA claims that several firms cut ties with the organization.⁴ It also alleged that Vullo coerced banks and insurance firms into denying basic financial services to the NRA and similar organizations using the regulatory power that came with her position at DFS.⁵ According to the NRA, Vullo sought to punish the organization because of her disapproval of its political advocacy following the infamous high school shooting in Parkland, California.⁶ The American Civil Liberties Union (“ACLU”), who has taken up representation of the NRA in this case, says that Vullo issued

[F]ormal guidance to every bank and insurance company in New York urging them to ‘sever ties’ with the NRA, promising lenience to certain insurers if they would stop doing business with the NRA, and imposing consent orders that required the group’s three principal ‘affinity insurance’ providers never to provide such insurance to the NRA again.⁷

Specifically, the NRA claims that Vullo used a meeting with the insurance firm Lloyd’s of London to pressure them into helping with the campaign against gun-promotion organizations – in return, she would refrain from prosecuting other violations the firm had committed.⁸

The district court dismissed the majority of the NRA’s claims against Vullo, but they did not dismiss the First Amendment claims due to undecided factual questions surrounding qualified immunity.⁹ On appeal, the U.S. Court of Appeals for the Second Circuit reversed the district court’s ruling, stating that government officials have a responsibility to address public concerns, even though the First Amendment prohibits the restriction of free speech by government officials.¹⁰ The court held that the NRA “failed to plausibly allege that Vullo crossed the line between attempts to convince and attempts to coerce”.¹¹ Furthermore, even if her actions were coercive, Vullo’s behavior as a regulator and public official did not violate any clearly established law – therefore, Vullo was entitled to qualified immunity.¹²

A. The First Amendment Rights of Organizations

Among other things, the First Amendment protects the right to freedom of expression, including both express speech and symbolic actions, from government interference.¹³ Originally, First Amendment protections were reserved for private individuals, but they have been expanded to protect legal entities such as corporations.¹⁴ The government is expected to provide significant justification for regulations on speech because of its content, although some categories of speech – including commercial speech and speech that incites imminent lawless action – are considered less-protected or entirely unprotected.¹⁵

The NRA contends that Vullo violated its freedom of expression under the First Amendment by punishing it for its “controversial” views.¹⁶ The right of organizations to protections under the First Amendment is a relatively new and not entirely developed legal concept, with the Supreme Court first granting free speech protections for commercial actors in the 1970s when it decided that commercial speech is protected from unwarranted government regulation.¹⁷ Even so, the Court has acknowledged “the ‘commonsense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech,” and that the “Constitution therefore accords a lesser protection to commercial speech than to other constitutionally guaranteed expression,” dependent upon the “nature of both the expression and of the governmental interests served by its regulation.”¹⁸ The Supreme Court reasoned “if the communication is neither misleading nor related to unlawful activity… [t]he State must assert a substantial interest to be achieve by restrictions on commercial speech” to limit it, and the means by which it is restricted must be proportional to that interest.¹⁹ Similarly, there have been cases establishing the First Amendment rights of non-profit organizations, allowing them to financially support their views about policy issues and political candidates.²⁰ Thus, the law supports a conclusion that non-profit organizations like the NRA have First Amendment protections for political expression.

In the decades following the 70s, the Supreme Court seems to have been trending towards granting and protecting the First Amendment, and related, rights of businesses and organizations, regardless of their commercial status.²¹ Like corporations, non-profit organizations are awarded fairly robust First Amendment protections, allowing them to speak on and involve themselves with politics.²² However, there have been efforts to limit those protections, such as when the IRS imposed regulations on the ability for tax-exempt organizations to involve themselves in partisan activity.²³ The ACLU advocated for the First Amendment rights of organizations at that time, as well.²⁴ The First Amendment rights of corporations and organizations continues to be a point of debate and development.

B. The First Amendment Rights of Government Officials

Just as private persons and entities are awarded First Amendment protections against government infringement, government officials themselves are similarly permitted to express opinions and views of their own, including favoritism of certain views over others.²⁵ They may not, however, unjustly coerce or threaten in order to stifle speech.²⁶ It was important to the Second Circuit Court of Appeals to determine whether Vullo’s actions were attempts to convince or attempts to coerce. They considered the following factors from caselaw precedent: word choice and tone, the existence of regulatory authority, whether the speech was perceived as a threat, and whether the speech refers to adverse consequences.²⁷ The court was not convinced by the NRA’s “conclusions and characterizations” that Vullo threatened or coerced entities in violation of the First Amendment because of her “evenhanded, nonthreatening tone” and persuasive, not intimidating, wording.²⁸ The communications did not refer to pending investigations, possible regulatory actions, or punishment – only those adverse consequences related to reputational risks and social backlash.²⁹

It follows, then, that the circuit court did not find that the communications rose to the standard laid out by case law precedent. The court also expressed its sentiment that it was “reasonable for Vullo to speak out about the gun control controversy and its possible impact on DFS-regulated entities” as the backlash against gun promotion groups “was intense after the Parkland shooting,” as it may affect the New York financial markets and business’s reputations.³⁰ The guidance letters and press release sent by DFS following the Parkland shooting seemingly fall within Vullo’s First Amendment rights to persuade and fall short of the precedential standard for coercive speech. The Supreme Court case, however, is likely to focus more so on the meetings she had with Lloyd’s of London.

C. Qualified Immunity

Another point of interest in this case is the possible defense Vullo may succeed in asserting. The Second Circuit Court of Appeals found Vullo’s actions to be natural and reasonable in the face of serious insurance law violations³¹, but even if they hadn’t been, the court contended that Vullo was entitled to qualified immunity.³² Qualified immunity shields government officials performing discretionary functions from suits for money damages unless their conduct violates clearly established law of which a reasonable official would have known.³³ The court quoted case law precedent in stating that “the fact that the general proposition that the First Amendment prohibits ‘implied threats to employ coercive state power to stifle protected speech’ is well-established does not end our inquiry” – instead, the unlawfulness of Vullo’s actions would need to be apparent in light of pre-existing caselaw.³⁴ It was the opinion of the circuit court that Vullo did not violate a clearly established law in this case.

III. Discussion

A. The Merits of the NRA’s Argument

The Second Circuit Court of Appeals found the NRA’s complaint to be lacking in specificity as to what Vullo actually said in the meetings with insurance firm Lloyd’s of London, where the NRA claims she offered to refrain from prosecuting other violations if they would agree to not provide insurance to gun groups.³⁵ The court also did not find that Vullo required companies to sever ties with the NRA in consent decrees sent to companies to explain their violations of the law – instead, they “explicitly provided otherwise” by allowing the companies to continue doing business with the NRA as long as they were not in violation of the law.³⁶

These are likely to be important distinctions considered at the Supreme Court level, as well. The Supreme Court would need to read Vullo’s language as being implicitly threatening in the absence of express threats if following the same case law precedent that the Second Circuit Court of Appeals adhered to. Vullo was certainly in a position of authority and the NRA contends that her words were perceived as a threat, but the Court would likely wish to hear from the insurance companies and firms themselves on their perception of the message. Although the communications did refer to adverse consequences, they were not legal consequences arising from a continued relationship with the NRA, but rather theoretical reputational risks that Vullo did not have power over in her position as superintendent. The Second Circuit Court of Appeals did not find that making recommendations on business practices constituted a threat and the Supreme Court may have to stretch in order to do so.

The precedent that the NRA is leaning upon in this case is Bantam Books v. Sullivan, a case in which a state-created commission had been tasked with investigating obscene publications that may be violating state law, and if detected, the commission would send a notice to the distributor detailing their responsibility to recommend distributors of obscene material for prosecution.³⁷ The Supreme Court found a violation of the First Amendment, saying that the commission effectively censored material by sending intimidating and coercive notices to distributors without judicial oversight or review, behavior that the Supreme Court deemed to be prior restraint on the content of the material.³⁸ The ACLU contends that this case helps support the notion that the Supreme Court should “reject the Second Circuit’s implication that regulators can rely on the unpopularity of speech as a basis for suppressing it.”³⁹

However, while there may be some similarities and differences between this case and Bantam, the notices in Bantam essentially threatened prosecution under state law, whereas the memorandums Vullo sent contained recommendations on reputational grounds.⁴⁰ As the Second Circuit Court of Appeals expressed in their decision, Vullo not only had the right to do so, but also the duty to do so as superintendent.⁴¹ While it is fair to say that the government should not be regulating speech based upon its popularity, that may not be what Vullo was doing in this case. Vullo did not threaten legal action for being involved with the NRA, only for the companies’ actual violations of the law.

Even if the written communications that Vullo sent to companies fall short of violating the First Amendment rights of the NRA, the Court is likely to focus on the meeting that Vullo had with Lloyd’s of London. The NRA contends that Vullo offered to not prosecute legal violations of Lloyd’s if they refrained from insuring the organization – the Second Court of Appeals, however, believed that Vullo was acting within the confines of her regulatory responsibilities.⁴² There is no precedent dictating that law enforcement officials may not offer leniency in exchange for helping to advance their policy goals, “especially when those policy goals aim to minimize the influence of a noncompliant business partner that has repeatedly violated the law.”⁴³ Indeed, the fact that Lloyd’s and other insurance firms admitted wrongdoing cannot be taken as steadfast evidence of coercion. However, the Supreme Court could find that Vullo’s policy intentions were improper.

Even if the Supreme Court finds that Vullo’s actions were improper, there is also a possibility that Vullo is entitled to a defense of qualified immunity. As a government official, Vullo may be immune from liability stemming from the performance of her duties in the face of an open legal question. For this defense to work in Vullo’s favor, she must prove that she was acting within the discretionary authority of her position; after this, the burden would shift to the NRA to show that she was violating clearly established law.⁴⁴ It was the opinion of the Second Circuit Court of Appeals that the law surrounding the NRA’s claim was not well established enough for Vullo to have clearly known she was in violation of it.⁴⁵ Absent of a clear case supporting the NRA’s case, the Supreme Court may agree.

B. Other Considerations

One interesting aspect of this case has been those who have shown support for the NRA – notably, the ACLU, and on a lesser scale, the Biden Administration. To quote the ACLU, it has said that it “clearly opposes the NRA on gun control and the role of firearms in society” and “abhor[s] many of the group’s goals, strategies, and tactics” – thus, “the reality that we have joined forces, notwithstanding those disagreements, reflects the importance of the First Amendment principles at stake in this case.”⁴⁶ The ACLU is “deeply concerned that if regulators can threaten the NRA for their political views in New York state, they can come after the ACLU and allied organizations in places where our agendas are unpopular.”⁴⁷ Additionally, although the Biden Administration is supporting neither party formally, U.S. Solicitor General Elizabeth Prelogar wrote to the Supreme Court stating the NRA made a “plausible claim” of a violation of their First Amendment rights by a state official.⁴⁸ These alignments reflect an interesting diversion from typical ideological and party lines.⁴⁹

The interest of the Biden Administration in the outcome of this case ties to another case currently under consideration by the Supreme Court, Murthy v. Missouri, which will address the question of whether administration officials violated the First Amendment by pressuring social media companies to restrict content deemed to be misinformation.⁵⁰ In that case, the Biden Administrations contends that there was no First Amendment violation when officials tried to persuade social media employees to remove content deemed to be misinformation.⁵¹ The Court of Appeals for the Fifth Circuit upheld a broad injunction impacting all future communication between the government and social media companies regarding harmful content.⁵² Now the matter is being heard before the Supreme Court.

This contrasts to the Solicitor General’s statement that the NRA made a plausible First Amendment claim. However, the United States has filed a motion with the Supreme Court to be given leave to participate in the oral arguments of NRA’s case against Vullo supporting neither party due to the wide-reaching implications that the decision in this case may have.⁵³ It is the position of the Solicitor General and the United States that “government officials violate the First Amendment if they use threats of adverse government action to compel private parties to suppress protected speech,” but that some of the NRA’s argument would “extend the relevant First Amendment principles too far and threaten to chill legitimate government speech.”⁵⁴ Accepting all of the NRA’s broad arguments could have negative ramifications and result in an unfavorable decision against the government in Murthy v. Missouri.

IV. Conclusion

The Second Circuit Court of Appeal’s decision on this matter appears to have been made on a stable and well-reasoned basis, although it is possible that the Supreme Court will follow their trend of expanding the First Amendment rights of organizations and corporations. A decision that the NRA’s First Amendment rights were violated would likely rest upon the way her words were perceived in alleged private meetings she had with insurance firms. Regardless, it is possible that the Supreme Court will find that qualified immunity protects Vullo from liability. Should the Supreme Court find a First Amendment violation in this case, the implications of that decision may be vast and significant with regards to Murthy v. Missouri and government regulatory action unless it is tailored to specific, clearly distinguishable impermissible behavior

Cover Photo by Adam Michael Szuscik on Unsplash

Kate Brewer

Kate Brewer is local to the Cincinnati area but received her BA in Political Science from the University of Tennessee. She is now a 2L at the University of Cincinnati College of Law. In addition to Law Review, Kate is an Article Editor for the Human Rights Quarterly and the External Affairs Coordinator for the International Law Society. Kate also enjoys spending time with her cats and studying Russian

References

1
Nat’l Rifle Ass’n of Am. v. Cuomo, 350 F. Supp. 3d 94 (N.D.N.Y. 2018).
2
Id. at 105.
3
Id. at 106-07.
4
Brief for Petitioner at 1, Nat’l Rifle Ass’n of Am. v. Vullo, 2024 U.S. LEXIS 1191 (2024) (No. 22-842).
5
Nat’l Rifle Ass’n of Am. v. Vullo, 49 F.4^th 700, 706 (2022).
6
Brief for Petitioner, supra note 4, at 7.
7
National Rifle Association v. Vullo, ACLU (Jan. 9, 2024), https://www.aclu.org/cases/national-rifle-association-v-vullo [https://perma.cc/C83A-2UGU].
8
Brief for Petitioner, supra note 4, at 7-12.
9
See Nat’l Rifle Ass’n of Am. v. Cuomo, 525 F. Supp. 3d 382 (2021), Nat’l Rifle Ass’n of Am. v. Cuomo, 2020 U.S. Dist. LEXIS 234145 (2020).
10
Nat’l Rifle Ass’n of Am. v. Vullo, 49 F.4^th 700, 706-07 (2022).
11
Id. at 707.
12
Id.
13
See U.S. Const. amend. 1; Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).
14
Citizens United v. FEC, 558 U.S. 310 (2010).
15
See Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557 (1980); Brandenburg v. Ohio, 395 U.S. 444 (1969).
16
Nat’l Rifle Assoc., supra note 7.
17
Va State Bd. of Pharmacy v. Va Citizens Consumer Council, 425 U.S. 748 (1976).
18
Cent. Hudson Gas & Elec. v. Public Serv. Comm’n, 447 U.S. 557, 562-63 (1980).
19
Id. at 563.
20
Emily’s List v. FEC, 581 F.3d 1 (2009).
21
See generally First Nat’l Bank v. Bellotti, 435 U.S. 765 (1978); Citizens United v. FEC, 558 U.S. 310 (2010); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014)’; Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373 (2021).
22
Citizens United v. FEC, 558 U.S. 310 (2010).
23
26 U.S.C. § 501(c)(3); 26 C.F.R § 1.501(c)(3)-1(c)(3)(i); 26 C.F.R. § 1.501(c)(3)-1(c)(3)(iii).
24
Gabe Rottman & Sandra Fulton, ACLU Defends Nonprofit Free Speech, ACLU (Feb. 11, 2014), https://www.aclu.org/news/free-speech/aclu-defends-nonprofit-free-speech [https://perma.cc/5MRD-MYDY].
25
Nat’l Rifle Ass’n of Am. v. Vullo, 49 F.4th 700, 714-15 (2022).
26
Hammerhead Enters. V. Brezenoff, 707 F.2d 33, 39 (1983).
27
Nat’l Rifle Ass’n, 49 F.4th at 715.
28
Id. at 716-17.
29
Id. at 717.
30
Id.
31
Id.at 719.
32
Id.
33
Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982).
34
Hammerhead Enters. v. Brezenoff, 707 F.2d 33 (1983); Anderson v. Creighton, 483 U.S. 635, 640 (1987).
35
Nat’l Rifle Ass’n, 49 F.4th 700, 718-19.
36
Id.
37
Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963).
38
Id.
39
National Rifle Association, supra note 7.
40
Nat’l Rifle Ass’n of Am. v. Cuomo, 350 F. Supp. 3d 94, 106-07 (2018).
41
Nat’l Rifle Ass’n of Am. v. Vullo, 49 F.4th 700, 706-07 (2022).
42
Id. at 718.
43
Id. at 720-21.
44
Fed. R. Civ. P. 56.; 42 U.S.C. § 1983.
45
Nat’l Rifle Ass’n of Am. v. Vullo, 49 F.4th 700, 719-20 (2022).
46
Anthony D. Romero, Why Is the ACLU Representing the NRA Before the U.S. Supreme Court?, ACLU (Mar. 8, 2024), https://www.aclu.org/news/free-speech/why-is-the-aclu-representing-the-nra-before-the-us-supreme-court [https://perma.cc/RM83-WNQ3].
47
Id.
48
Brief for the United States as Amicus Curiae Supporting Neither Party, Nat’l Rifle Ass’n v. Vullo, 2024 U.S. LEXIS 1191 (2024) (No. 22-842).
49
See generally Office of Gun Violence Prevention, The White House, https://www.whitehouse.gov/ogvp/ [https://perma.cc/2CDR-ZGMU]; Jon Kamp, Democrats Push for State Gun Limits After Electoral Win, Mass Shooting, Wall St. J (Feb. 15, 2024), https://www.wsj.com/us-news/democrats-push-for-state-gun-limits-after-electoral-win-mass-shooting-c89b6e99 (examples of Biden Administration and Democratic party stance in favor of firearm regulations).
50
See generally Missouri v. Biden, 80 F.4th 641 (2023).
51
Application for a Stay of the Injunction Issued by the United States District Court for the Western District of Louisiana, Murthy v. Missouri, 144 S. Ct. 7 (2023) (No. 23A243).
52
See generally Missouri v. Biden, 80 F.4th 641 (2023).
53
Motion of the United States for Leave to Participate in Oral Argument as Amicus Curiae and for Divided Argument, Nat’l Rifle Ass’n v. Vullo, 2024 U.S. LEXIS 1191 (2024) (No. 22-842).
54
Id. at 2.