SCOTUS Considers 1A Rights of the NRA

( – Cartoonist Louis Dalrumple, paraphrasing Shakespeare, once noted, “Politics make strange bedfellows,” remarking on how those with wildly differing views can sometimes find themselves allied in the fight for a common cause. Perhaps the adage never rang more true than when supporters of the National Rifle Association (NRA) and the American Civil Liberties Union (ACLU) argued together against the State of New York on Monday, March 18, in front of the Supreme Court to defend the NRA’s First Amendment rights.

A New York Official Overstepped

The High Court is considering National Rifle Association of America v. Vullo. The case questioned whether the First Amendment protected a controversial speaker’s relationship with regulated entities from adverse governmental regulator oversight motivated by hostility toward the speaker’s viewpoint(s) or perceived or anticipated community backlash against the speaker’s advocacy.

In their complaint, the NRA alleged that in 2018, Superintendent Maria Vullo of the New York Department of Financial Services (DFS) issued guidance to banks, insurance companies, and financial institutions in the wake of the Parkland, Florida, school shooting. Per the complaint, she cautioned the fiduciaries to “manag[e] their risks, including reputational risks, that may arise from their dealings with the NRA.” She also warned the companies to “review any relationships they have with the NRA” and consider “tak[ing] prompt actions to manag[e] these risks and promote public health and safety.”

While Vullo didn’t specifically tell any company to cut ties with the NRA or threaten any action against companies with existing ties, the DFS had enforced a $13 million action against insurance companies that had participated in illegal business with the NRA the previous year. The NRA argued Vullo implied the threat.

Supreme Court Appeared Sympathetic

Amy Howe of the SCOTUSblog reported that Justices appeared sympathetic to the NRA’s oral arguments on Monday. David Cole of the ACLU argued on behalf of the NRA, citing Bantam Books v. Sullivan. The previous Supreme Court case described how officials might illegally coerce companies and individuals to take actions they would not voluntarily take otherwise.

In Bantam Books v. Sullivan, the Justices held that while government officials might express their opinions, they can’t use the threat of law enforcement or criminal charges to coerce others to abandon legal activities. Doing so violates the First Amendment rights of those they threaten and those they advocate against.

Cole argued that Vullo didn’t issue guidance to enforce insurance law but instead “to coerce a boycott of a political advocacy organization.” The ACLU attorney pointed out that the DFS guidance letters stood as “a scarlet letter on the NRA” with regard to every fiduciary in New York, giving them pause to do business with the organization.

Neal Katyal, arguing on behalf of Vullo, took an entirely different tack. He said the key issue in the case centered around the NRA’s admitted illegal conduct in 2017. He pointed out that had the NRA not violated the law, incurring the $13 million action against itself and its insurance partners, the 2018 guidance could not have implied a threat. Even so, Katyal said the guidance merely warned companies to manage their risks wisely.

Court watchers expect the Justices to issue a decision this summer.

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