National Rifle Association of America v. Vullo

Issues 

Does a government regulator violate the First Amendment when the regulator threatens companies with regulatory action for doing business with a party because the regulator disagrees with that party’s viewpoints?

Oral argument: 
March 18, 2024

This case asks the Supreme Court to determine whether a government regulator violates the First Amendment when the regulator threatens companies with regulatory action for doing business with a party because the regulator disagrees with that party’s viewpoints. In 2018, New York State Department of Financial Services (“DFS”) Superintendent Maria Vullo asked financial institutions, in response to the Parkland school shooting, to reconsider their business with the National Rifle Association (“NRA”). The NRA argues that these communications constitute impermissible coercion designed to stifle its freedom of speech under the First Amendment. Vullo contends that such communications are protected government speech and essential to her job as a regulator. The outcome of this case has important ramifications for free speech, state officials’ ability to regulate, and the right to bear arms.

Questions as Framed for the Court by the Parties 

Whether the First Amendment allows a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government’s own hostility to the speaker’s viewpoint or (b) a perceived “general backlash” against the speaker’s advocacy.

Facts 

In October 2017, the New York State Department of Financial Services (“DFS”) opened an investigation into the legality of certain insurance programs endorsed by the National Rifle Association of America (“NRA”). National Rifle Association of America v. Vullo at 3. These programs promised to insure gun owners for losses from the use of licensed firearms, even in situations where a gun owner intentionally killed or injured someone or engaged in other intentional criminal acts. Id. at 6–7. Three companies provided the programs, including Lloyd’s of London (“Lloyd’s”). Id. at 7–8.

In February 2018, a school shooting occurred in Parkland, Florida. Id. at 8. In response, Superintendent of DFS at the time, Maria T. Vullo, met with Lloyd’s senior executives and expressed both her desire to use her powers to limit firearms’ availability and also her belief that Lloyd’s was violating New York insurance law. Id. at 8–9. Vullo suggested that Lloyd’s could come into compliance by ceasing its insurance program for gun groups like the NRA. Id. at 9–10.

In April 2018, Vullo sent guidance letters in her official capacity to DFS-regulated insurance entities and other financial institutions. Id. at 10. The letters stated that the Parkland shooting and other mass shootings had resulted in strong backlash against the NRA and similar organizations. Id. at 10–11. The letters also encouraged banks and insurance companies active in New York to consider the reputational and other risks of doing business with the NRA, but the letters did not mention any ongoing investigations or enforcement actions. Id. at 11. Then-governor Andrew Cuomo then issued a press statement, quoting Vullo for urging insurance companies to lead the way in bringing about positive social change and to join other companies that had severed their connections with the NRA. Id. at 12.

Shortly afterwards, several entities stopped doing business with the NRA. Id. at 13–14. In May 2018, the three providers of NRA-endorsed insurance programs, including Lloyd’s, entered into consent decrees with DFS, admitting that their programs violated New York law. Id. at 12. The consent decrees explicitly allowed the providers to continue doing business with the NRA. Id. at 13.

The NRA filed several complaints against Vullo in the United States District Court for the Northern District of New York, which dismissed all but two First Amendment claims. Id. at 16–17. The first claim alleged that Vullo’s conduct chilled, or discouraged, the NRA’s protected speech; the second that Vullo had unconstitutionally retaliated against the NRA for its protected speech. Id. at 17. Vullo filed a motion to dismiss, which the court denied, ruling that she was not entitled to qualified immunity. Id. Vullo appealed to the United States Court of Appeals for the Second Circuit, which reversed on two grounds. Id. at 5. First, the Second Circuit held that the NRA had failed to plausibly allege that Vullo’s actions were coercive. Id. at 5. Second, the court held that, even assuming that Vullo had violated the NRA’s First Amendment rights, she was entitled to qualified immunity because the right in question was not clearly established when she acted. Brief for Respondent, Vullo at 22.

The NRA petitioned the United States Supreme Court for certiorari, seeking review of both the First Amendment and qualified immunity questions. Id. at 18. On November 3, 2023, the Court granted review on the First Amendment question only. Id.

Analysis 

WHETHER VULLO’S ACTIONS WERE IMPERMISSIBLY COERCIVE

The NRA argues that Vullo’s conduct violates the First Amendment because she used her position as Superintendent of DFS to coerce financial entities into blacklisting the NRA for its political advocacy. Brief for Petitioner, NRA at 20. The NRA contends that the First Amendment’s prohibition on viewpoint discrimination protects speakers from both direct and indirect bans on their speech by the government, including through private intermediaries. Id. at 21–22.

The NRA asserts that the test to determine whether the government has crossed the line from permissible speech to impermissible coercion is whether a reasonable recipient would understand the government’s actions as a threat. Id. at 24. The NRA cites Bantam Books, a case in which a Rhode Island government agency sent official letters to booksellers stating that certain books were objectionable for sale and distribution for minors. Id. at 25. In Bantam Books, the NRA argues, although the government agency did not make it directly illegal to sell such books, it nonetheless violated the First Amendment because a reasonable recipient of the official letters would have understood the government’s message as a threat to stop selling the books or face adverse consequences. Id. at 25–26. The NRA contends that Vullo’s conduct satisfies the three-part test for impermissible coercion established in Bantam Books, which requires a court to look at: (1) the authority of the government actor; (2) the content and purpose of their communications; and (3) the reactions of those who received the government’s message. Id. at 28.

First, the NRA argues that Vullo held vast regulatory authority over the financial institutions that ultimately stopped doing business with the NRA. Id. at 28. The NRA posits that Vullo supervised more than 3,000 institutions, had enforcement discretion over a vast code of regulations, and possessed the power to enforce punitive measures such as fines and criminal referrals. Id. at 30. The NRA claims that given Vullo’s authority, any reasonable financial institution would have taken her letters asking them to consider the “reputational risk” of associating with the NRA as a threat. Id.

Second, the NRA contends that Vullo’s words and actions threatened the financial institutions. Id. at 30. The NRA argues that a threat need not be explicit, citing several cases including Bantam Books, in which the government merely “thanked” booksellers for their supposed cooperation without issuing any express warning of retaliation. Id. at 31. The NRA contends that through Vullo’s guidance letters and press release, Vullo connected financial institutions’ legal obligation to consider “reputational risk” with her desire for institutions to “review” their relationships with the NRA and to “take prompt actions” to manage these risks. Id. at 33. The NRA further argues that in a subsequent press release, Vullo explicitly asked companies to discontinue arrangements with the NRA. Id. The NRA asserts that Vullo’s actions responded to the NRA’s gun promotion advocacy and not to any legal violation. Id. at 34. The NRA adds that in meetings with insurance executives, Vullo offered both leniency and prosecution for unrelated infractions, depending on the company’s continued business with the NRA. Id. The NRA maintains that Vullo demonstrated her power to regulate by publicly issuing punitive measures against two of the NRA’s principal insurance providers. Id. at 34–35.

Finally, the NRA claims that financial institutions heeded Vullo’s message by ceasing business ties with the NRA. Id. at 36. For example, the NRA argues that one of the providers of its insurance programs, Lockton, informed the NRA that it would have to stop doing business for fear of losing its insurance license in New York. Id. The NRA also asserts that its general liability insurance carrier refused to renew coverage at any price and that its three principal insurance partners entered consent orders prohibiting them from providing even fully lawful insurance with the NRA. Id. at 37.

Vullo counters that the NRA’s complaint does not plausibly allege coercion. Brief for Respondent, Vullo at 34. Vullo acknowledges that the First Amendment prohibits government coercion but argues that the Court has long permitted governments to express their own opinions. Id. at 35. Vullo contends that courts look to four factors to evaluate whether a government’s speech has crossed the line from permissibly convincing to impermissibly coercive: (1) whether the speech referred to adverse consequences; (2) the official’s word choice and tone; (3) whether the official’s speech was perceived as a threat; and (4) whether the official had regulatory authority over the conduct at issue. Id. at 36–37. Vullo argues that all four factors refute the NRA’s allegations of coercion. Id. at 37.

First, Vullo asserts that the most important consideration in evaluating the nature of her speech is that she did not threaten the NRA, either explicitly or implicitly, with adverse consequences. Id. Vullo argues that the industry letters and press release used the language of encouragement rather than coercion and do not come close to any of the statements in Bantam Books. Id. at 38. Vullo contends that unlike in Bantam Books or any related cases, Vullo never invoked her regulatory authority, stated that she was conducting investigations, or suggested that compliance with her views would eliminate the need for prosecution. Id. Vullo also argues that her softer language stands in contrast to other more forceful DFS communications and that any reasonable observer would have understood her letters as her own views on corporate social responsibility, rather than a threat of enforcement against those with whom she disagreed. Id. at 38–39. Vullo asserts that the consent orders were simply an exercise of her law enforcement authority redressing admitted violations, not indirect threats. Id. at 39. Vullo argues that the NRA’s claims about the alleged meeting between her and Lloyd’s are vague, conclusory, and implausible and do not allege anything specific that Vullo said in the meeting. Id. at 40.

Second, Vullo contends that her tone and word choice in the letters and press release were non-threatening and persuasive, rather than intimidating. Id. at 41. Vullo argues that she used words such as “encourage” and “review” and that her statements stand in stark contrast to the tone of other communications currently at issue before the Court. Id. at 42. Vullo contends that the tenor of the consent orders merely described the insurer’s illegal conduct and the ensuing penalties which is typical of such consent orders. Id.

Third, Vullo argues that regulated parties understood her statements as expressions of her own policy views. Id. Vullo claims that financial institutions cut ties with the NRA because of the Parkland shooting and in response to DFS’s investigation of illegal conduct, not because of her actions. Id. For example, Vullo asserts that Lockton's alleged statement about dropping the NRA for fear of losing its license occurred before Vullo’s meeting with Lloyd’s. Id. at 43. Vullo also contends that the NRA never specified when its general liability insurance carrier decided not to renew its insurance policies, and that these events all allegedly occurred before she issued her industry letters. Id. at 43–44. Vullo argues that DFS prohibited the NRA’s three principal insurance partners from providing any NRA-affiliated insurance because all of the NRA’s programs are illegal due to its failure to obtain a license. Id. at 44.

Finally, Vullo claims that the NRA overstates her regulatory authority and consequently her ability to coerce. Id. at 45. Vullo argues that DFS’s authority extends only to 159 New York state-chartered banks and that it can only enforce penalties through consent orders or adjudicatory proceedings, where regulated entities have the opportunity to be heard, under judicial review. Id.

DISMISSAL OF THE COMPLAINT

The NRA argues that the Second Circuit failed to consider the coercive effect of Vullo’s actions as a whole when it reversed the district court’s denial of Vullo’s motion to dismiss. Brief for Petitioner, at 40. The NRA contends that the court did not properly consider whether her statements asking banks to consider “reputational risk” were a threat. Id. The NRA asserts that the court overlooked the fact that the consent orders barred each company from ever providing even lawful insurance programs with the NRA. Id. at 41. The NRA further argues that the court did not draw all inferences in the NRA’s favor as required under a Rule 12(b)(6) motion to dismiss. Id. at 42.

Vullo counters that the Court should not permit the NRA’s complaint to survive a motion to dismiss because that would expose public officials to disruptive discovery and deter officials from enforcing laws for fear of damages suits. Brief for Respondent, at 34–35. Vullo argues that the NRA’s claim fails even setting aside coercion, because she is entitled to absolute immunity for her enforcement acts. Id. at 25–28. Vullo further argues that the NRA has failed to plausibly allege any injury caused by retaliation against its speech rather than its illegal acts and failed to plausibly allege that Vullo censored the NRA’s speech rather than regulated its economic activity. Id. at 28–32.

Discussion 

STATE’S POWER TO REGULATE

Senator Ted Budd, in support of the NRA, asserts that the Second Circuit's decision undermines federalism because it allows New York government officials to project their dislike for the NRA across the country whether or not its operations are confined to New York. Brief of Amici Curiae Senator Ted Budd, in Support of Petitioner at 23. Consumers’ Research, in support of the NRA, contends that allowing indirect coercion would incentivize the government to continue indirectly pressuring companies to do its bidding because of the ease in doing so. Brief of Amici Curiae Consumers’ Research, in Support of Petitioner at 13. The Project for Privacy and Surveillance Accountability, Inc. (“PPSA”), in support of the NRA, argues that allowing DFS to indirectly coerce third parties would give the government free rein to pressure technology companies into giving up their data, implicating privacy concerns. Brief of Amici Curiae Project for Privacy and Surveillance Accountability, Inc., at 11. The PPSA claims that companies often face a backlash for refusing to comply with government requests for data, which the government could exploit. Id. at 12. First Amendment Scholars, in support of the NRA, assert that a ruling in favor of Vullo would invite government entities everywhere to adopt similar policies targeting a wide range of expressive organizations whose views they oppose. Brief of First Amendment Scholars, in Support of Petitioner at 5, 17.

First Amendment Scholars assert, in support of Vullo, that allowing the NRA's insufficiently pleaded complaint to proceed would undermine law enforcement efforts by obstructing the government with frivolous lawsuits. Brief of First Amendment Scholars, in Support of Respondent at 3–5. Former and Current Prosecutors and Regulators (“FCPR”), in support of Vullo, argue that enforcers would have to weigh the risks of First Amendment litigation every time they brought an action against a regulated entity, encouraging enforcers to drop such investigations. Brief of Former and Current Prosecutors and Regulators, in Support of Respondent at 9. FCPR contend that enforcers would be incentivized to selectively avoid prosecuting entities that publicly state controversial views just to avoid the threat of litigation. Id. at 17. Financial Regulation and Administrative Law Scholars, in support of Vullo, argue that a decision in the NRA's favor would endanger regulators’ ability to issue non-binding guidance for the benefit of consumers and the public. Brief of Financial Regulation and Administrative Law Scholars, in Support of Respondent at 36. Former State Commissioners of Insurance and Banking (“Former State Commissioners”), in support of Vullo, maintain that reputational risk is a core component of risk-management strategy for all companies, and that non-binding guidance letters such as those issued by Vullo help companies to manage such risk. Brief of Former State Commissioners of Insurance and Banking, in Support of Respondent at 5. Former State Commissioners, in support of Vullo, assert that a ruling in favor of the NRA would discourage public officials from being free to criticize. Id. at 23–25.

EFFECT ON GUN CONTROL

Advancing American Freedom et al. ("AAF"), in support of the NRA, argues that DFS's actions, if allowed to stand, would harm the interests of NRA's members by reducing the effectiveness and reach of such groups and driving them out of business in New York. Id. at 13. Firearm Policy Coalition, in support of the NRA, maintains that protecting free speech rights of organizations like the NRA is critical to protecting Second Amendment rights and that by rejecting the Second Circuit's holding, the Court would send a strong message to government actors that such violations are unacceptable. Brief of Firearm Policy Coalition, Inc., in Support of Petitioner at 14, 20. Gun Owners of America, in support of the NRA, claim that a ruling against Vullo would halt apparent regulatory plans in states such as New York and New Jersey to require gun owners to purchase firearm insurance. Brief of Gun Owners of America, et al., in Support of Petitioner at 19–21.

The State of Hawaii et al. (“Hawaii”) counters, in support of Vullo, that public officials are often uniquely qualified to comment on matters of significant public debate because of their experience and access to information, particularly on gun regulation and safety. Brief of States of Hawai’i et al., in Support of Respondent at 13. Hawaii asserts that states promote public safety by appealing to private industry directly and points to eleven attorneys general who wrote to credit card companies, applauding their decision to adopt a new merchant category for gun and ammunition sales to help prevent mass shootings. Id. at 19. Hawaii contends that it is essential that state officials retain their ability to voice their opinions and urge private action to fight gun violence. Id. 19–20.

Conclusion 

Written by:

Tedrick Au

Gijs de Bra

Edited by:

Matthew Hornung

Acknowledgments 

Additional Resources