Sotomayor Without Tears

Justice Sonia Sotomayor might retreat to her chambers for a good cry now and again, as she herself confesses, but not this time. In the matter of New York State’s efforts to drive the National Rifle Association out of business, she just delivered a glorious opinion for a unanimous court vindicating one of America’s most distinguished civil rights organizations. She moved to protect the famed defender of the Second Amendment with the sword of the First.Brava, we say, brava. These columns have been covering this case since its origins in the dark days of Governor Andrew Cuomo’s self-righteousness and his efforts to expunge the Second Amendment in the Empire State. In the wake of the slaughter at Parkland school in Florida, Mr. Cuomo began a campaign to use the state’s Department of Financial Services to go after the NRA — and its insurance programs for gun owners.It was as high-handed, obnoxious, and abusive a campaign as has ever been launched by a state government. It did great damage to an organization that for 150 years has been devoted to shoring up the article of our Bill of Rights that has been called the “palladium* of our liberty.” The NRA, established in 1871 in New York, retreated to Virginia, and is considering a move to Texas, where, in contradistinction to New York, the Second Amendment is in force.Mr. Cuomo, the NRA contended, pushed a state official, Maria Vullo, to “financially blacklist” the group. Ms. Vullo’s department, the group argued, was “coercing banks and insurers to cut ties” with the association “to suppress its pro-Second Amendment speech” and “to silence the NRA.” Even the American Civil Liberties Union saw that this was constitutionally off-target, calling the case a “critically important First Amendment fight.”The backdoor censorship scheme amounted to a kind of conspiracy, the NRA contends, between Mr. Cuomo, Ms. Vullo, and Attorney General Letitia James, who went after the group in court. She sought “to dissolve” the NRA, pointing to malfeasance by some of its staffers. Her lawsuit failed to destroy the NRA, though, and instead of forcing the group to close and pay damages to New York, the rogue employees owe damages to the NRA itself.Considering that sordid background, the relief from Justice Sotomayor and her colleagues is all the more welcome. In her opinion she reminds that the high court’s precedent is that “Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.” Yet the National Rifle Association, she adds, “plausibly alleges that respondent Maria Vullo did just that.”Justice Sotomayor zeroes in on the hand-in-glove coordination between Mr. Cuomo and Ms. Vullo. While the governor was fulminating on Twitter about the NRA being “an extremist organization” and urging “companies in New York State to revisit any ties they have to the NRA and consider their reputations, and responsibility to the public,” Ms. Vullo was pressing banks and insurance companies to discontinue doing business with the group.Granted, Ms. Vullo “was free to criticize the NRA,” Justice Sotomayor observes, and to investigate any potential violations of state insurance law connected to the group. “She could not wield her power, however, to threaten enforcement actions” against the group “in order to punish or suppress the NRA’s gun-promotion advocacy,” she adds. Yet Ms. Vullo appears to have done that, the justice notes — amounting to “a First Amendment violation.”The case will now go back to lower courts. Justice Sotomayor notes that elections are the best check on government intrusion on free speech. Yet in a case where “a government official makes coercive threats in a private meeting behind closed doors,” the “ballot box” has its limits. In that case, she notes, “the critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech.”________* This is the phrase used for the Second Amendment by Judge St. George Tucker and, later, by Justice Joseph Story.

Sotomayor Without Tears

Sotomayor Without Tears

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