The Supreme Court unanimously held in National Rifle Association of America. v. Vullo, that the NRA’s allegations that state officials coerced private companies to blacklist the group because of its political views stated a claim under the First Amendment. Justice Sotomayor authored the opinion.

As previously summarized in Dykema’s April 2024 edition, following the Parkland shooting, Maria Vullo, then-Superintendent of the New York State Department of Financial Services, issued guidance and statements that encouraged banks and insurers to assess and possibly end affiliations with gun promotion organizations. After several firms cut ties with the NRA, it filed suit against Vullo, claiming violations of the organization’s free speech and equal protection rights. The District Court denied Vullo’s motion to dismiss, holding that Vullo’s actions violated the First Amendment and that qualified immunity was not available at the motion-to-dismiss stage. The Second Circuit reversed, holding that the First Amendment does not prevent government officials from addressing matters of public concern. The Second Circuit also held that—because Vullo’s actions did not violate any clearly established law—she was entitled to qualified immunity.

In its reversal, the Court reaffirmed the long-standing legal admonition against using “the power of the State to punish or suppress disfavored expression.” The Court further held that public officials cannot coerce private parties into punishing or suppressing speech on their behalf. According to the Court, Vullo’s position gave her direct regulatory and enforcement authority over all insurance and financial service institutions in New York. And by using her position to threaten companies who continued to engage with the NRA, Vullo violated the First Amendment. The Court held that the Second Circuit was wrong to consider only specific, permissible statements made by Vullo instead of considering those statements against the backdrop of other allegations made in NRA’s complaint. The Court left open the question of whether Vullo is entitled to qualified immunity, noting that the Second Circuit is free to make that determination on remand.

In a concurring opinion, Justice Jackson stressed the importance of distinguishing First Amendment violations and government coercion. She writes that, upon remand, the lower courts should consider these distinctions more clearly.

Takeaway

• In Justice Sotomayor’s own words, “The takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech.”

For more information, please contact Chantel Febus, James Azadian, Cory Webster, Christopher Sakauye, Monika Harris, Puja Valera, or A. Joseph Duffy, IV.