National Rifle Association of America v. Vullo, 602 U.S. ___ (2024)
The case involves the National Rifle Association (NRA) and Maria Vullo, the former superintendent of the New York Department of Financial Services (DFS). The NRA alleged that Vullo violated their First Amendment rights by pressuring regulated entities to disassociate from the NRA and other gun-promotion advocacy groups. The NRA claimed that Vullo threatened enforcement actions against those entities that refused to disassociate, thereby stifling the NRA's pro-gun advocacy.
The District Court initially denied Vullo's motion to dismiss the NRA's First Amendment damages claims, holding that the NRA plausibly alleged that Vullo's actions could be interpreted as a veiled threat to regulated industries to disassociate with the NRA or risk DFS enforcement action. However, the Second Circuit reversed this decision, concluding that Vullo's alleged actions constituted permissible government speech and legitimate law enforcement, not unconstitutional coercion. The Second Circuit also held that even if the complaint stated a First Amendment violation, the law was not clearly established, and so Vullo was entitled to qualified immunity.
The Supreme Court of the United States, however, vacated the judgment of the Second Circuit. The Supreme Court held that the NRA plausibly alleged that Vullo violated the First Amendment by coercing DFS-regulated entities to terminate their business relationships with the NRA in order to punish or suppress the NRA's advocacy. The case was remanded for further proceedings consistent with this opinion.
The First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, including through private intermediaries.
SUPREME COURT OF THE UNITED STATES
Syllabus
NATIONAL RIFLE ASSOCIATION OF AMERICA v. VULLO
certiorari to the united states court of appeals for the second circuit
No. 22–842. Argued March 18, 2024—Decided May 30, 2024
Petitioner National Rifle Association (NRA) sued respondent Maria Vullo—former superintendent of the New York Department of Financial Services (DFS)—alleging that Vullo violated the First Amendment by coercing DFS-regulated parties to punish or suppress the NRA’s gun-promotion advocacy. The Second Circuit held that Vullo’s alleged actions constituted permissible government speech and legitimate law enforcement. The Court granted certiorari to address whether the NRA’s complaint states a First Amendment claim.
The NRA’s “well-pleaded factual allegations,” Ashcroft v. Iqbal,556 U.S. 662, 678–679, are taken as true at this motion-to-dismiss stage. DFS regulates insurance companies and financial services institutions doing business in New York, and has the power to initiate investigations and civil enforcement actions, as well as to refer matters for criminal prosecution. The NRA contracted with DFS-regulated entities—affiliates of Lockton Companies, LLC (Lockton)—to administer insurance policies the NRA offered as a benefit to its members, which Chubb Limited (Chubb) and Lloyd’s of London (Lloyd’s) would then underwrite. In 2017, Vullo began investigating one of these affinity insurance policies—Carry Guard—on a tip passed along from a gun-control advocacy group. The investigation revealed that Carry Guard insured gun owners from intentional criminal acts in violation of New York law, and that the NRA promoted Carry Guard without the required insurance producer license. Lockton and Chubb subsequently suspended Carry Guard. Vullo then expanded her investigation into the NRA’s other affinity insurance programs.
On February 27, 2018, Vullo met with senior executives at Lloyd’s, expressed her views in favor of gun control, and told the Lloyd’s executives “that DFS was less interested in pursuing” infractions unrelated to any NRA business “so long as Lloyd’s ceased providing insurance to gun groups, especially the NRA.” App. to Pet. for Cert. at 199–200, ¶21. Vullo and Lloyd’s struck a deal: Lloyd’s “would instruct its syndicates to cease underwriting firearm-related policies and would scale back its NRA-related business,” and “in exchange, DFS would focus its forthcoming affinity-insurance enforcement action solely on those syndicates which served the NRA.” Id., at 223, ¶69.
On April 19, 2018, Vullo issued letters entitled, “Guidance on Risk Management Relating to the NRA and Similar Gun Promotion Organizations.” Id., at 246–251 (Guidance Letters). In the Guidance Letters, Vullo “encourage[d]” DFS-regulated entities to: (1) “continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations”; (2) “review any relationships they have with the NRA or similar gun promotion organizations”; and (3) “take prompt actions to manag[e] these risks and promote public health and safety.” Id., at 248, 251. Vullo and Governor Cuomo also issued a joint press release echoing many of the letters’ statements, and “ ‘urg[ing] all insurance companies and banks doing business in New York’ ” to join those “ ‘that have already discontinued their arrangements with the NRA.’ ” Id., at 244. DFS subsequently entered into separate consent decrees with Lockton, Chubb, and Lloyd’s, in which the insurers admitted violations of New York’s insurance law, agreed not to provide any NRA-endorsed insurance programs (even if lawful), and agreed to pay multimillion dollar fines.
Held: The NRA plausibly alleged that respondent violated the First Amendment by coercing regulated entities to terminate their business relationships with the NRA in order to punish or suppress gun-promotion advocacy. Pp. 8–20.
(a) At the heart of the First Amendment’s Free Speech Clause is the recognition that viewpoint discrimination is uniquely harmful to a free and democratic society. When government officials are “engaging in their own expressive conduct,” though, “the Free Speech Clause has no application.” Pleasant Grove City v. Summum,555 U.S. 460, 467. “When a government entity embarks on a course of action, it necessarily takes a particular viewpoint and rejects others,” and thus does not need to “maintain viewpoint-neutrality when its officers and employees speak about that venture.” Matal v. Tam,582 U.S. 218, 234. While a government official can share her views freely and criticize particular beliefs in the hopes of persuading others, she may not use the power of her office to punish or suppress disfavored expression.
In Bantam Books, Inc. v. Sullivan,372 U.S. 58, this Court explored the distinction between permissible attempts to persuade and impermissible attempts to coerce. The Court explained that the First Amendment prohibits government officials from relying on the “threat of invoking legal sanctions and other means of coercion . . . to achieve the suppression” of disfavored speech. Id., at 67. Although the defendant in Bantam Books, a state commission that blacklisted certain publications, lacked the “power to apply formal legal sanctions,” the coerced party “reasonably understood” the commission to threaten adverse action, and thus its “compliance with the [c]ommission’s directives was not voluntary.” Id., at 66–68. To reach this conclusion, the Court considered things like: the commission’s authority; the commission’s communications; and the coerced party’s reaction to the communications. Id., at 68. The Courts of Appeals have since considered similar factors to determine whether a challenged communication is reasonably understood to be a coercive threat. Ultimately, Bantam Books stands for the principle that a government official cannot directly or indirectly coerce a private party to punish or suppress disfavored speech on her behalf. Pp. 8–11.
(b) To state a claim that the government violated the First Amendment through coercion of a third party, a plaintiff must plausibly allege conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress speech. See Bantam Books, 372 U. S., at 67–68. Here, the NRA plausibly alleged that Vullo violated the First Amendment by coercing DFS-regulated entities into disassociating with the NRA in order to punish or suppress gun-promotion advocacy.
As DFS superintendent, Vullo had direct regulatory and enforcement authority over all insurance companies and financial service institutions doing business in New York. She could initiate investigations, refer cases for prosecution, notice civil charges, and enter into consent decrees. Vullo’s communications with the DFS-regulated entities, particularly with Lloyd’s, must be considered against the backdrop of Vullo’s authority. Vullo made clear she wanted Lloyd’s to disassociate from all gun groups, although there was no indication that such groups had unlawful insurance policies similar to the NRA’s. Vullo also told the Lloyd’s executives she would “focus” her enforcement actions “solely” on the syndicates with ties to the NRA, “and ignore other syndicates writing similar policies.” App. to Pet. for Cert. 223, ¶69. The message was loud and clear: Lloyd’s “could avoid liability for [unrelated] infractions” if it “aided DFS’s campaign against gun groups” by terminating its business relationships with them. Ibid. As the reaction from Lloyd’s further confirms, Vullo’s alleged communications—whether seen as a threat or as an inducement—were reasonably understood as coercive. Other allegations concerning the Guidance Letters and accompanying press release, viewed in context of their issuance, reinforce the NRA’s First Amendment claim. Pp. 12–15.
(c) The Second Circuit concluded that Vullo’s alleged communications were “examples of permissible government speech” and “legitimate enforcement action.” 49 F. 4th 700, 717–719. The Second Circuit could only reach this conclusion, however, by taking the complaint’s allegations in isolation and failing to draw reasonable inferences in the NRA’s favor.
Vullo’s arguments to the contrary lack merit. The conceded illegality of the NRA-endorsed insurance programs does not insulate Vullo from First Amendment scrutiny under Bantam Books. Nor does her argument that her actions targeted “nonexpressive” business relationships change the fact that the NRA alleges her actions were aimed at punishing or suppressing speech. Finally, Vullo claims that the NRA’s position, if accepted, would stifle government speech and hamper legitimate enforcement efforts, but the Court’s conclusion simply reaffirms the general principle that where, as here, the complaint plausibly alleges coercive threats aimed at punishing or suppressing disfavored speech, the plaintiff states a First Amendment claim. Pp. 15–18.
(d) The NRA’s allegations, if true, highlight the constitutional concerns with the kind of strategy that Vullo purportedly adopted. Although the NRA was not the directly regulated party here, Vullo allegedly used the power of her office to target gun promotion by going after the NRA’s business partners. Nothing in this case immunizes the NRA from regulation nor prevents government officials from condemning disfavored views. The takeaway is 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. 19.
49 F. 4th 700, vacated and remanded.
Sotomayor, J., delivered the opinion for a unanimous Court. Gorsuch, J., and Jackson, J., each filed a concurring opinion.
Judgment VACATED and case REMANDED. Sotomayor, J., delivered the opinion for a unanimous Court. Gorsuch, J., and Jackson, J., each filed a concurring opinion. |
Judgment VACATED and case REMANDED. Sotomayor, J., delivered the opinion for a unanimous Court. Gorsuch, J., and Jackson, J., each filed a concurring opinion. |
Argued. For petitioner: David D. Cole, Washington, D. C. For United States, as amicus curiae: Ephraim McDowell, Assistant to the Solicitor General, Department of Justice, Washington, D. C. For respondent: Neal K. Katyal, Washington, D. C. |
Reply of petitioner National Rifle Association of America filed. (Distributed) |
Reply of National Rifle Association of America submitted. |
Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED. |
Amicus brief of Former State Commissioners of Insurance and Banking submitted. |
Brief amicus curiae of Brady Center to Prevent Gun Violence filed. (Distributed) |
Brief amici curiae of Federal Courts and Civil Procedure Scholars filed. (Distributed) |
Amicus brief of Former and Current Prosecutors and Regulators submitted. |
Brief amici curiae of Former and Current Prosecutors and Regulators filed. (Distributed) |
Amicus brief of First Amendment Scholars not accepted for filing. (February 27, 2024 - Corrected brief to be filed) |
Brief amici curiae of First Amendment Scholars filed. (Distributed) |
Brief amici curiae of Former State Commissioners of Insurance and Banking filed. (Distributed) |
Brief amici curiae of Financial Regulation and Administrative Law Scholars filed. (Distributed) |
Brief amici curiae of States of Hawai‘i, Delaware, Maryland, Michigan, Minnesota, Nevada, New Mexico, Oregon, Vermont, and Washington filed. (Distributed) |
Brief amici curiae of Former Executive Officers of the New York State Department of Financial Services filed. (Distributed) |
Amicus brief of Former Executive Officers of the New York State Department of Financial Services submitted. |
Motion of United States for leave to participate in oral argument and for divided argument submitted. |
Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed. |
Brief of Maria T. Vullo submitted. |
Brief of respondent Maria T. Vullo filed. (Distributed) |
CIRCULATED |
Record received electronically from the United States District Court for the Northern District of New York and available with the Clerk. |
Record received electronically from the United States Court of Appeals for the Second Circuit and available with the Clerk. |
SET FOR ARGUMENT on Monday, March 18, 2024. |
Record requested from the United States Court of Appeals for the Second Circuit. |
Letter updating counsel of record information for respondent Maria T. Vullo filed. |
Letter Regarding Counsel of Record of Maria T. Vullo submitted. |
Amicus brief of New Civil Liberties Alliance submitted. |
Amicus brief of Firearm Policy Coalition, Inc. submitted. |
Amicus brief of Montana submitted. |
Amicus brief of Gun Owners of America, Gun Owners Fdn., Gun Owners of Cal., America’s Future, Free Speech Coal., Free Speech Def. and Ed. Fund, Citizens United, Citizens United Fdn., The Presidential Coalition, Tenn. Firearms Assoc., Tenn. Firearms Fdn., Heller Fdn., Va. Citizens Defense League, Grass Roots N.C., Rights Watch Int’l, Public Advocate of the U.S., Leadership Inst., U.S. Const. Rights Legal Defense Fund, Clare Boothe Luce Center for Cons. Women, The Senior Citizens League, and Conservative Legal Def. and Ed. Fund submitted. |
Amicus brief of Buckeye Institute submitted. |
Amicus brief of National Association for Gun Rights and National Foundation for Gun Rights submitted. |
Amicus brief of Second Amendment Foundation, John Locke Foundation, and Independence Institute submitted. |
Amicus brief of James P. Corcoran, former New York Superintendent of Insurance submitted. |
Brief amicus curiae of United States in support of neither party filed. |
Amicus brief of First Amendment Scholars submitted. |
Amicus brief of Heartbeat International, Inc. submitted. |
Amicus brief of Indiana and Mississippi submitted. |
Amicus brief of Project for Privacy and Surveillance Accountability, Inc. submitted. |
Amicus brief of Foundation for Individual Rights and Expression, National Coalition Against Censorship, The Rutherford Institute and First Amendment Lawyers Association submitted. |
Amicus brief of United States submitted. |
Brief amicus curiae of Heartbeat International, Inc. filed. |
Brief amici curiae of Foundation for Individual Rights and Expression, et al. filed. |
Brief amicus curiae of James P. Corcoran, former New York Superintendent of Insurance filed. |
Brief amici curiae of Second Amendment Foundation, et al. filed. |
Brief amici curiae of Gun Owners of America, et al. filed. |
Brief amici curiae of Montana, et al. filed. |
Brief amicus curiae of Buckeye Institute filed. |
Brief amici curiae of National Association for Gun Rights, et al. filed. |
Brief amicus curiae of Firearm Policy Coalition, Inc. filed. |
Brief amici curiae of Indiana and Mississippi filed. |
Brief amicus curiae of New Civil Liberties Alliance filed. |
Brief amicus curiae of Project for Privacy and Surveillance Accountability, Inc. filed. |
Brief amici curiae of First Amendment Scholars filed. |
Amicus brief of Advancing American Freedom, Inc. submitted. |
Brief amici curiae of Advancing American Freedom, et al. filed. |
Amicus brief of Consumers' Research submitted. |
Amicus brief of Senator Ted Budd and 17 Additional Members of the United States Senate and Representative Richard Hudson and 62 Additional Members of the United States House of Representatives submitted. |
Brief amici curiae of Senator Ted Budd, et al. filed. |
Brief amicus curiae of Consumers' Research filed. |
Amicus brief of Competitive Enterprise Institute submitted. |
Amicus brief of American Center for Law and Justice submitted. |
Amicus brief of Americans for Prosperity Foundation submitted. |
Brief amicus curiae of Competitive Enterprise Institute filed. |
Brief amicus curiae of American Center for Law and Justice filed. |
Brief amicus curiae of Americans for Prosperity Foundation filed. |
Amicus brief of Claremont Institute's Center for Constitutional Jurisprudence submitted. |
Brief amicus curiae of Claremont Institute's Center for Constitutional Jurisprudence filed. |
Amicus brief of Goldwater Institute submitted. |
Amicus brief of Financial & Business Law Scholars submitted. |
Brief amicus curiae of Goldwater Institute and Cato Institute filed. |
Brief amici curiae of Financial & Business Law Scholars filed. |
Joint Appendix submitted. |
Brief of National Rifle Association of America submitted. |
Brief of petitioner National Rifle Association of America filed. |
Joint appendix filed. (Statement of costs filed) |
Amicus brief of The International Municipal Lawyers Association submitted. |
Brief amicus curiae of The International Municipal Lawyers Association in support of neither party filed. VIDED. |
Brief amicus curiae of The International Municipal Lawyers Association in support of neither party (also as to 23-411) filed. VIDED. |
Motion to extend the time to file the briefs on the merits granted. The time to file the joint appendix and petitioner's brief on the merits is extended to and including January 9, 2024. The time to file respondent's brief on the merits is extended to and including February 20, 2024. Petitioner shall file a reply brief on the merits on or before 2 p.m., Friday, March 8, 2024. |
Motion for an extension of time to file the briefs on the merits filed. |
Motion of Maria T. Vullo for an extension of time submitted. |
Petition GRANTED limited to Question 1 presented by the petition. |
Motion for leave to file amicus brief filed by Goldwater Institute DENIED. |
DISTRIBUTED for Conference of 11/3/2023. |
DISTRIBUTED for Conference of 10/27/2023. |
DISTRIBUTED for Conference of 10/13/2023. |
DISTRIBUTED for Conference of 10/6/2023. |
DISTRIBUTED for Conference of 9/26/2023. |
Reply of petitioner National Rifle Association of America filed. |
Brief of respondent Maria T. Vullo in opposition filed. |
Brief amici curiae of Texas, et al. filed. |
Brief amicus curiae of Gun Owners of America, Inc., et al. filed. |
Brief amicus curiae of Competitive Enterprise Institute filed. |
Motion for leave to file amicus brief filed by Goldwater Institute. |
Motion to extend the time to file a response is granted and the time is extended to and including June 23, 2023. |
Motion to extend the time to file a response from May 24, 2023 to June 23, 2023, submitted to The Clerk. |
Response Requested. (Due May 24, 2023) |
DISTRIBUTED for Conference of 5/11/2023. |
Brief amicus curiae of Foundation for Individual Rights and Expression filed. |
Brief amici curiae of Montana, et al. filed. |
Brief amici curiae of Financial & Business Law Scholars filed. |
Motion (22M73) for leave to file a petition for a writ of certiorari with the supplemental appendix under seal Granted. |
MOTION (22M73) DISTRIBUTED for Conference of 3/3/2023. |
Petition for a writ of certiorari filed. (Response due April 5, 2023) |
Petition for a writ of certiorari filed. (Response due April 5, 2023) |
Motion (22M73) for leave to file a petition for a writ of certiorari with the supplemental appendix under seal filed. |