The Supreme Court thought about the National Rifle Association’s (NRA) case about free speech against a former New York regulator during oral arguments Monday.
During more than 75 minutes of arguments, the justices questioned how to determine when government officials go beyond acceptable advocacy and enter into unconstitutional coercion.
Justice Samuel Alito, a leading conservative in the court, asked, “How do you decide when it goes too far along that line?”
The NRA is asking the justices to revive its lawsuit concerning the First Amendment against Maria Vullo, who headed New York’s Department of Financial Services and began investigating the NRA in 2017.
Vullo has left office, but the NRA claims she violated the First Amendment by improperly encouraging insurers and banks she regulated to cut ties with the gun rights group.
Following the Parkland (Fla.) school shooting, which resulted in the deaths of 17 students and staff and sparked a national debate on gun control, Vullo sent guidance letters urging banks and insurers regulated by her department to sever ties with the NRA, citing “reputational risks.”
At this time, Vullo was investigating NRA-endorsed insurance programs, leading some companies to admit their programs were illegal . The NRA has also criticized Vullo's alleged private meeting comments with Lloyd’s, a major insurance company.Some justices seemed open to the NRA’s claims that those actions constituted coercion, but it remained uncertain if a majority was convinced.
Neal Katyal, Vullo’s lawyer, argued that ruling for the gun rights group would allow plaintiffs to challenge numerous enforcement actions across the federal government and in each state by claiming a First Amendment violation.
“You would be opening the door to something very, very dangerous and destructive down the road,” Katyal said.
He referred to the recent calls to compel a TikTok sale or President Biden’s comment at the State of the Union that “Now we must beat the NRA again!”
“It’s not just the NRA today. It’s every regulated party tomorrow, from TikTok on,” said Katyal.
Several of the Supreme Court’s liberal justices seemed sympathetic to that perspective, depicting Vullo’s actions as typical for government regulators.
“If reputational risk is a real thing, and if gun companies or gun advocacy groups impose that kind of reputational risk, isn’t it a bank regulator’s job to point that out?” Justice Elena Kagan asked.
Justice Sonia Sotomayor at one point told the NRA’s lawyer, “it seems to me you’re trying to” break new ground in the court’s First Amendment case law.
The concerns expressed to the NRA lawyer may have been surprising.
For the first time, the American Civil Liberties Union (ACLU) represented the NRA on Monday, despite their deep divides on gun control measures.
But David Cole, the ACLU’s legal director who argued the case, made it clear that the two groups were in agreement when it comes to the First Amendment issue at hand.
“This was not about enforcing insurance law or mere government speech,” said Cole. “It was a campaign by the state’s highest political officials to use their power to force a boycott of a political advocacy organization because they disagreed with its advocacy.”
The ACLU and NRA’s partnership wasn’t the only unusual situation evident. Both Cole and Katyal are Georgetown Law professors and long-time friends.
Georgetown Law professors and friends for many years A ruling in the case, NRA v. Vullo, is anticipated by the end of June..
The discussion followed one earlier in the day that also explored when government officials engage in unconstitutional coercion.
In that instance, the justices considered the constitutionality of the Biden administration’s contacts with social media companies to regulate online misinformation about the legitimacy of the 2020 election and COVID-19. Two Republican attorneys general argue it amounted to a campaign of censorship.
However, in that debate, the justices seemed doubtful of preventing the administration’s communications. But in the NRA case, the justices appeared receptive to the group’s First Amendment arguments.
Vullo herself was in the courtroom for Monday’s argument, sitting hunched over the counsel table. At times, she wrote notes to her attorneys.
“You say in your brief this case is not even close. Do you stand by that?” a skeptical Alito asked her attorney, in what became the final question of the argument.
“Yes,” Katyal replied.
Sitting just feet away, Vullo began tapping her foot.
The Supreme Court considered the National Rifle Association’s (NRA) free speech case against a former New York regulator during oral arguments Monday. Over 75 minutes of arguments, the justices probed how to distinguish when government officials go beyond permissible advocacy and cross into unconstitutional coercion. “How do you define when it goes too far along…
