ACLU To Defend NRA as Supreme Court Weighs Whether New York Violated Gun Group’s First Amendment Rights

‘Public officials cannot wield government power to censor, suppress, or bankrupt their political enemies,’ the National Rifle Association’s counsel tells the Sun.

AP/Michael Wyke
A convention attendee looks at NRA-branded shirts for sale at the NRA Annual Meeting May 26, 2022. AP/Michael Wyke

The Supreme Court next week will weigh an epic First Amendment clash that is expected to have ripple effects for government regulators and advocacy groups across the country. 

At issue in the upcoming March 18 arguments is whether financial regulators in New York infringed upon the First Amendment rights of the National Rifle Association by pressuring companies to end business relationships with the group following a school shooting in 2018 at Parkland, Florida.

The NRA — noting the immense power of New York financial regulators to oversee licensing, impose fines, and launch investigations — contends that the superintendent of the state’s Department of Financial Services, Maria Vullo — under the direction of Governor Cuomo — abused that power by encouraging insurers and banks to blacklist the NRA because of their distaste with the group’s Second Amendment advocacy. 

Ms. Vullo’s attorneys argue in a brief that the case is about the rights of government employees to “enforce the law and to speak out about matters of public concern without fear that their statements will subject them to damages actions brought by entities that espouse controversial views.” 

The NRA is represented by the Brewer, Attorneys & Counselors law firm and the American Civil Liberties Union. The ACLU has said that its willingness to align itself with the NRA on the case — despite its strong opposition to the NRA on many issues — highlights the First Amendment stakes in the case. 

“Substitute Planned Parenthood or the Communist Party for the NRA, and the point is clear,” the ACLU’s legal director, David Cole, noted at the time the NRA first sued in 2018. “If Cuomo can do this to the NRA, then conservative governors could have their financial regulators threaten banks and financial institutions that do business with any other group whose political views the governor opposes.”

In 2017, Ms. Vullo began investigating NRA-backed insurance coverage for gun users — dubbed “murder insurance” by critics — amid legal concerns that the programs insured intentional criminal activity. The investigation ultimately ended with the insurers and the NRA paying hefty fines. 

Several months later, the NRA says it began “facing intensified criticism for its pro-gun rights advocacy,” and Ms. Vullo began singling out the NRA. The group alleges that Ms. Vullo began to meet with “insurance executives that did business with the NRA, in which she explained her campaign to penalize the NRA for its gun-promotion advocacy.”

Following those threats, the NRA says companies began dropping the organization, citing fears about not being able to do business in New York if it continued to provide coverage for the NRA.

Mr. Cuomo issued a press release at the time directing the Department of Financial Service to urge insurers, banks, and other financial services to “review any relationships” with the NRA and “consider whether such ties harm their corporate reputations and jeopardize public safety.” 

He noted that multiple businesses had ended relationships with the NRA after the Florida school shooting “in order to realign their company’s values.” 

The state’s financial service department regulates more than 1,400 insurance companies with assets totaling more than $4 trillion, the statement noted. Ms. Vullo was also quoted encouraging “all insurance companies and banks doing business in New York to join the companies that have already discontinued their arrangements with the NRA, and to take prompt actions to manage these risks and promote public health and safety.” 

Mr. Cuomo publicly denounced the NRA on multiple other occasions, urging businesses to cut off any relationships with the group.

“The NRA is an extremist organization,” Mr. Cuomo wrote on X, then Twitter, in April 2018. “ I urge companies in New York State to revisit any ties they have to the NRA and consider their reputations, and responsibility to the public.”

Several months later, he boasted that New York was “forcing the NRA into financial crisis,” and that it was “time to put the gun lobby out of business,” tagging his post with #BankruptTheNRA. “We won’t stop until we shut them down,” he wrote in another tweet. 

The ACLU is urging the court to apply a ruling from Bantam Books v. Sullivan in 1963, which it notes “established that informal, indirect efforts by government officials to suppress or penalize speech by putting pressure on third-party intermediaries violate the First Amendment just as much as direct censorship.”

“If the NRA prevails, it will be positioned to pursue damages against Governor Cuomo, Maria Vullo, NYAG Letitia James, and the State of New York. The message will be loud and clear: the First Amendment belongs to the people, and public officials cannot wield government power to censor, suppress, or bankrupt their political enemies,” NRA’s counsel, William A. Brewer III, tells the Sun. 

The case is important to any advocacy organizations that rely on First Amendment protections, he adds. 

Though the NRA’s First Amendment claims prevailed at the district court, the Second Circuit Court of Appeals reversed the decision, ruling that Ms. Vullo’s correspondence with financial institutions did not violate the NRA’s free expression. The Court noted that “the First Amendment ‘does not impose a viewpoint-neutrality requirement on the government’s own speech.’” 

Citing the Second Circuit ruling, Ms. Vullo’s counsel, Neal Katyal of Hogan Lovells, tells the Sun that the superintendent “did not engage in any coercive or otherwise improper behavior.” Rather, it was the NRA that was in the wrong by selling illegal products, he contends.

“This case has huge implications for the future of American regulatory law and the ability of public servants to communicate their positions on public policy,” he says. “At its core, this case asks a simple question: ‘should the government be allowed to govern?’”

The NRA is targeting the government with “meritless bad-faith lawsuits aimed at scuttling the most basic regulatory functions,” he adds. “Their position relies on an extreme and unworkable interpretation of the First Amendment and runs counter to a unanimous panel of the Second Circuit and decades of well-established Supreme Court precedent.”

The New York Sun

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