The Supreme Court handed down a unanimous victory for the National Rifle Association, the powerful pro-gun organization, on Thursday. Notably, the opinion was authored by Justice Sonia Sotomayor, an Obama appointee and one of the Court’s few remaining liberal voices.
Yet nothing about the Court’s decision in National Rifle Association v. Vullo should surprise anyone. The case involved an egregious and straightforward violation of the First Amendment, and Sotomayor’s name on the opinion drives home the fact that there’s really only one fair-minded way to decide this case.
Vullo arose out of two moves Maria Vullo, the former superintendent of New York State’s Department of Financial Services (DFS), took against the NRA. One of these moves was entirely lawful, the other was clearly unconstitutional.
The lawful investigation concerned “Carry Guard,” an insurance program the NRA offered its members, which would pay the legal bills of a customer who shot someone. Carry Guard, which was provided by third-party insurers but promoted by the NRA, violated New York law in two ways. The NRA promoted it without a license, and it “insured New York residents for intentional, reckless, and criminally negligent acts with a firearm that injured or killed another person.”
For reasons that should be obvious, New York does not permit insurers to offer policies that pay out if the beneficiary commits an intentional criminal act.
While Vullo was pursuing her investigation into the Carry Guard program — eventually imposing millions of dollars in fines on the insurance companies that administered and underwrote Carry Guard — a gunman murdered 17 people at a high school in Parkland, Florida. This triggered a widespread backlash against the NRA, including within New York’s government.
Unfortunately, at least part of New York’s response to the Parkland shooting was unconstitutional.
Vullo issued two “guidance” letters to insurers and financial services companies, encouraging them to “continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations” and to “take prompt actions to manag[e] these risks and promote public health and safety.”
Notably, Vullo issued these letters while her office was actively seeking millions of dollars worth of fines from the insurance companies responsible for the NRA’s Carry Guard program.
Additionally, Vullo allegedly met with one insurance company, Lloyd’s of London, and told Lloyd’s that it could “avoid liability” for unrelated insurance law violations “so long as it aided DFS’s campaign against gun groups.”
So Vullo encouraged many insurers to cut off ties with the NRA at the very moment that she was pursuing a major investigation into three companies that did business with the NRA. And she allegedly offered to shield one company from additional liability if it took further actions against the gun organization.
As Sotomayor’s opinion explains, that’s not allowed.
Perhaps because the opinion is written by Sotomayor, and not by a more right-wing justice who may be eager to use the state of New York’s blundering treatment of the NRA as an excuse to shut down legitimate enforcement actions against the gun group, the Court’s decision also includes some language ensuring that the investigation into Carry Guard remains valid.
Thus, supporters of gun regulation avoided a crushing defeat in Vullo; this case could have ended in a far more sweeping win for the NRA.
The government may not coerce private companies into cutting ties with an advocacy group because the government does not like that group’s views
The holding of Sotomayor’s Vullo opinion is straightforward. “Vullo was free to criticize the NRA and pursue the conceded violations of New York insurance law,” the justice writes. But, “she could not wield her power … to threaten enforcement actions against DFS-regulated entities in order to punish or suppress the NRA’s gun-promotion advocacy.”
Thus, the Court draws a clear line between the legitimate investigations into Carry Guard and the other efforts to pressure companies to cut ties with the NRA because New York’s leaders disapproved of the organization’s gun rights advocacy.
As Sotomayor writes, this conclusion flows naturally from the Supreme Court’s decision in Bantam Books v. Sullivan (1963), which involved a similar effort by a government agency to punish speakers the agency did not like.
Bantam Books concerned the Orwellianly named “Rhode Island Commission to Encourage Morality in Youth,” a state body that targeted books it deemed “objectionable for sale, distribution or display to youths under 18 years of age.” The commission sent letters to booksellers asking for their “cooperation” in removing such books, while also informing these sellers of their “duty to recommend to the Attorney General prosecution of purveyors of obscenity.”
In at least one case, the commission also sent a police officer to one book distributor it targeted, who asked what steps the distributor had taken to comply with the letter.
Though neither the letter nor the police officer made an explicit threat, such as “remove these books or you will be arrested and face criminal charges,” Bantam Books concluded that the implicit threat was clear enough, and it held that this sort of coercion violates the First Amendment.
The same logic applies in Vullo. As Sotomayor explains, “[A]s DFS superintendent, Vullo had direct regulatory and enforcement authority over all insurance companies and financial service institutions doing business in New York.” She had the power to bring civil charges and, as DFS’s investigation into Carry Guard shows, to “impose significant monetary penalties.”
Backed by this authority, Vullo encouraged “DFS-regulated entities to ‘discontinu[e] their arrangements with the NRA,’” including arrangements that were entirely lawful.
That’s not allowed. As Sotomayor writes, Vullo is accused of threatening “to wield her power against those refusing to aid her campaign to punish the NRA’s gun-promotion advocacy.” If those allegations are proven (the case is still at an early stage and has not yet received a full trial), Vullo violated the First Amendment.
It’s worth noting that Sotomayor’s opinion is brief and fairly surgical. It makes clear that Vullo’s unconstitutional actions do not strip DFS of its authority to sanction legitimate violations of New York law, including the NRA’s decision to essentially offer murder insurance.
But her opinion also reaffirms one of the most foundational principles in First Amendment law: Even despicable people have the right to free speech.
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