Case Summary and Outcome

The Supreme Court of the United States (SCOTUS) ruled that a government agency violated the First Amendment’s free speech clause when it compelled a third party to suppress the speech of another person or entity. The case was brought by the National Rifle Association (NRA) against Maria Vullo, former superintendent of the New York Department of Financial Services (DFS), for violating its right to free speech. The NRA alleged that Vullo coerced third parties—various entities and companies regulated by the DFS—to cancel their insurance policies with the NRA to discourage pro-gun advocacy. Vullo asked to dismiss the complaint, arguing that she had done nothing illegal. The Court of Appeals for the Second Circuit dismissed the case after considering there was no violation of the First Amendment. The NRA filed a petition for a writ certiorari before the U.S. Supreme Court. SCOTUS granted certiorari and vacated the Second Circuit’s judgement. The Court reaffirmed the precedent laid out in Bantam Books, Inc. v. Sullivan (1963), which held that “Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.” The Court also held that Vullo could have used, potentially, the power of her office to punish pro-gun speech by going after the NRA’s business partners—which could have induced those third parties to comply out of fear of hostility from the official. In light of this, the Court explained that the First Amendment prohibits government officials from selectively exercising their power to punish or suppress speech, either directly or through private intermediaries or third parties. Accordingly, the Court vacated and remanded the judgment.

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Facts

In 2018, the National Rifle Association (NRA) filed a lawsuit against Maria Vullo, former superintendent of the New York Department of Financial Services (DFS), for violating its First Amendment right to free speech. The NRA argued that Vullo coerced various businesses and entities regulated by the DFS to cancel their gun insurance policies with the NRA to suppress views that promoted the use or ownership of guns. The NRA explained that Vullo, in several meetings with senior executives, expressed her views in favor of “gun control” and induced them to cancel their insurance policies with groups that promoted the use of guns.

Additionally, the NRA stated that Vullo, through the DFS, initiated investigations against companies, unions, and agencies that had insurance contracts with the NRA. Moreover, the association claimed that Vullo issued letters titled “Guidance on Risk Management Relating to the NRA and Similar Gun Promotion Organizations”, which discouraged DFS-regulated entities from associating with or contacting the NRA.  The NRA provided several declarations from companies’ executives who decided to terminate their insurance contracts with the NRA out of fear of retaliation from Vullo as superintendent.

Vullo moved to dismiss the NRA’s complaint. She argued that her conduct was not unlawful or an act of impermissible coercion.

The District Court denied Vullo’s motion to dismiss.  The court held that Vullo’s actions could be construed as a veiled threat toward industries and entities to disassociate themselves from the NRA, thus risking coercive action by the New York DFS. Hence, the court concluded that Vullo’s actions were a First Amendment violation.

Vullo appealed the decision. The Court of Appeals for the Second Circuit held that Vullo’s conduct constituted permissible government speech, not unconstitutional coercion. Further, regarding Vullo’s letters, the court of appeals held that they were not unconstitutionally coercive because they were written in an evenhanded tone and used persuasive words—not threatening nor coercive. The Second Circuit Court added that Vullo’s conduct was a clear example of permissible government speech. It also concluded that Vullo had fulfilled her regulatory responsibilities to DFS-regulated entities and businesses. Consequently, this court reversed the first-instance decision.

The NRA filed a petition for certiorari before the U.S. Supreme Court, insisting that Vullo’s actions violated the First Amendment to the U.S. Constitution.

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Decision Overview

Justice Sonia Sotomayor delivered the unanimous opinion for the Supreme Court of the United States (SCOTUS). The main issue before the Court was whether the actions of Maria Vullo—as former Superintendent of the New York Department of Financial Services—could have constituted a violation of the First Amendment rights of the NRA—considering she could have dissuaded DFS-regulated entities from associating with the NRA.

The NRA argued that the Second Circuit’s approach was incorrect because it failed to properly apply the U.S. Supreme Court precedent in the case of Bantam Books, Inc. v. Sullivan, which provided a constitutional analytical framework for addressing its claim. The plaintiff alleged that Vullo threatened and coerced third parties—businesses and entities regulated by the DFS—to suppress pro-gun speech.

For her part, Vullo argued that the Second Circuit’s decision dismissing the NRA’s complaint should be upheld. The defendant argued that her conduct did not violate the First Amendment’s Free Speech Clause because it was lawful. Vullo also noted that she did not unlawfully threaten or coerce DFS-regulated entities to disassociate themselves from the NRA.

At the outset of its analysis, the Court recalled that six decades ago it established an important precedent in the case of Bantam Books, Inc. v. Sullivan (1963). According to the Court, the rule laid out in Bantam Books established that “a government entity’s threat of invoking legal sanctions and other means of coercion against a third party to achieve the suppression of disfavored speech violate[d] the First Amendment.” [p. 5]

Subsequently, the Court stated that the NRA plausibly showed that Maria Vullo—acting as superintendent of the New York DFS—pressured certain entities to assist her in combating gun advocacy by threatening to take coercive actions against organizations associated with the NRA, or other gun advocacy groups. On this point, the Court held that “these allegations, if true, state a First Amendment claim.” [p. 5]

The Court explained that Vullo was free to pursue violations of New York’s insurance law—even to criticize the NRA. Nonetheless, it held that Vullo “could not wield her power, however, to threaten enforcement actions against DFS-regulated entities in order to punish or suppress the NRA’s gun-promotion advocacy.” [p. 12] Furthermore, the Court highlighted that at the core of the First Amendment’s Free Speech Clause “is the recognition that viewpoint discrimination is especially harmful to a free and democratic society.” [p. 12] Accordingly, the Court said that the clause prohibits the government from abridging free speech.

Although the Court considered that a public official may share their opinions freely, and criticize other beliefs vehemently to persuade others, it also held that they must rely on the merits and strengths of their ideas and ability to inspire others. Considering this, the Court concluded that public officials are barred from “us[ing] the power of the State to punish or suppress disfavored expression.” [p. 12]

Again, the Court recalled the Bantam Books precedent to underscore the key difference between permissible attempts at persuasion and impermissible attempts at government coercion. In light of the case law, the Court explained that the First Amendment prohibits the government from using threats, or other means of coercion, to suppress speech. Subsequently, SCOTUS held that—since Bantam Books—courts have relied on several factors to determine whether the government has used threats against disfavored speech, such as “(1) the choice of words and tone; (2) the existence of regulatory authority; (3) whether the speech is perceived as a threat; and, perhaps most importantly, (4) whether the speech concerns adverse consequences.” [p. 14]

Still following Bantam Books, the Court also held that to prove that the Government coerced a third party, thus violating the First Amendment, a “plaintiff must plausibly allege conduct that, viewed in context, could reasonably be understood to convey a threat of adverse government action in order to punish or suppress the plaintiff ‘s speech.” [p. 16]

Analyzing the case at hand, the Court examined the degree of authority Vullo had as superintendent of the New York DFS—and whether a reasonable person could perceive her actions to be coercive in some way. On this point, the Court noted that Vullo had regulatory and enforcement authority over New York’s insurance companies and financial services entities. This meant that she could conduct investigations about these entities, prosecute them, and “impose significant monetary penalties.” [p. 13]

After examining testimonies from members of DFS-regulated entities—who claimed that Vullo threatened to prosecute them and impose sanctions if they continued purchasing gun insurance policies or associating with the NRA—, the Court held that “the message was therefore loud and clear”: Those entities “could avoid liability for unrelated infractions” if they “aided DFS’s campaign against gun groups” by terminating their business relationships with the NRA [p. 17]. Accordingly, the Court considered that these behaviors could reasonably be understood as threats of coercion.

In turn, the Court analyzed the letters issued by Vullo. SCOTUS stated that these letters called for prompt action by DFS-regulated entities to suspend their insurance policy agreements and contracts with the NRA.

For these reasons, the Court concluded that “the complaint, assessed as a whole, plausibly alleges that Vullo threatened to wield her power against those refusing to aid her campaign to punish the NRA’s gun-promotion advocacy. If true, that violates the First Amendment.” [p. 19]

Finally, the Court held that Vullo could have used the power of her office to punish gun-promotion speech by going against the NRA’s business partners, seeking compliance out of fear of regulatory hostility. With this in mind, the Court said that the fundamental conclusion was that “the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries.” [p. 23]

The Court did not rule on the merits of the specific case. It vacated the judgment and remanded it for further proceedings at the Second Circuit Court, consistent with the opinion laid out in this decision.

Concurring and dissenting opinions.

Judge Gorsuch filed a concurring opinion. In it, he argued that the Supreme Court held that a government official cannot compel a private party to punish or suppress disfavored speech on its behalf. He also noted that courts should not consider the evidence or arguments of the parties in isolation, as the Second Circuit did. Rather, Gorsuch held that the critical question in this type of case is whether the plaintiff had plausibly shown conducts that, when viewed in context, could reasonably be understood as acts of coercion seeking to suppress the plaintiff’s speech.

Justice Jackson also filed a concurring opinion clarifying that not every type of third-party coercion constitutes a First Amendment violation and that judges must examine whether the government actually wanted to restrict the plaintiff’s speech indirectly. In this regard, the Justice explained that Bantam Books provides a clear example of how government coercion can indirectly trigger a First Amendment violation.

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