Firearms and the First Amendment

  • Date:
  • March 29, 2024

This guest post does not necessarily represent the views of the Duke Center for Firearms Law.

“At its core, this case asks a simple question: ‘Should the government be allowed to govern?’”                                    - Neal Katyal, attorney for Maria Vullo, former Superintendent of the New York State Department of Financial Services

NRA v. Vullo isn’t your typical Second Amendment case. In fact, it’s not about the Second Amendment at all. This case, which was argued in front of the Supreme Court on March 18, involves allegations by the National Rifle Association (NRA) that a government official violated the gun organization’s First Amendment free speech rights by using her regulatory power to threaten NRA business partners and coerce them into cutting ties with the NRA.


The case dates back to 2017, when the New York State Department of Financial Services (DFS) opened an investigation into the NRA’s “Carry Guard” insurance program, which provided liability insurance for losses caused by firearm use, even where the insured gun owner intentionally killed or injured someone or otherwise acted with criminal intent. Referred to by critics as “murder insurance,” the program provided its insureds with coverage for costs incurred defending criminal or civil cases in the event that they shot someone and claimed to be acting in self-defense. Because this program violated New York law by providing insurance coverage for intentional criminal acts, the insurance companies behind Carry Guard entered into a consent decree agreeing to suspend the program. Additionally, the three companies agreed to pay more than thirteen million dollars in fines to the state.


The crucial events precipitating Vullo occurred in 2018 following the Marjory Stoneman Douglas school shooting in Parkland, Florida. The NRA and other gun rights groups faced intense backlash in the wake of the shooting, and many government officials and businesses spoke out against gun violence (including Maria Vullo, the then-Superintendent of DFS). In her capacity as Superintendent, Vullo, through regulatory guidance letters, private meetings, and enforcement decisions, called upon banks and insurance companies to consider the reputational risks that might arise from doing business with the NRA. She urged them to sever ties, which multiple companies then did. Although Vullo’s guidance letters did not explicitly threaten that DFS would take adverse action against entities who continued to do business with the NRA, the NRA contends that her statements implicitly did so, effectively coercing banks and insurers to cut ties with the NRA. According to the NRA, the fact that DFS had recently brought a multi-million-dollar action against insurance companies that offered Carry Guard further contributed to the implicit threat that companies would face similar consequences if they did not follow Vullo’s guidance.


The Second Circuit concluded in 2022 that the NRA failed to allege that Vullo crossed the line between lawful attempts to convince and unlawful attempts to coerce individuals or entities into refraining from protected speech. While the First Amendment does not prohibit government officials from advocating for certain views by, for example, asking companies to stop doing business with the NRA, it does prohibit officials from engaging in unjustified coercion to suppress protected speech. Even informal, indirect government efforts to suppress speech by “thinly veiled threats” violate the First Amendment, the Supreme Court held in its 1963 decision, Bantam Books v. Sullivan. Officials may not encourage suppression of protected speech in a manner that “can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official’s request.” There is a fine but important line between attempts to convince and attempts to coerce.


The appellate court concluded that Vullo’s statements “were written in an evenhanded, nonthreatening tone and employed words intended to persuade rather than intimidate,” and did not refer to any potential punishment for failing to accede to her request. It further held that, even assuming the NRA had sufficiently alleged a First Amendment violation, Vullo would be protected by qualified immunity because any alleged coercion was not a clearly established legal violation under existing case law.


Interestingly, despite vigorously disagreeing with the NRA on nearly all core issues, the American Civil Liberties Union (ACLU) is representing the gun rights group before the Supreme Court because of the case’s potential impact on First Amendment rights. The ACLU fears that, if government officials are allowed to pressure businesses they regulate to “blacklist the NRA” because they disapprove of its views, they will be able to punish other advocacy organizations, including potentially the ACLU itself, in the same way.


Vullo’s first argument in her brief to the Supreme Court is that any decision by the Court on the constitutional question would be purely advisory, and therefore the Court lacks jurisdiction. Because the Second Circuit concluded that Vullo is entitled to qualified immunity, and the Supreme Court is not considering that question, any decision on the constitutional question would not affect the lower court’s judgement, she claims. Vullo also argues that the NRA failed to plead its case sufficiently at the motion to dismiss stage. A fatal flaw in the NRA’s argument, according to Vullo, is that her actions were in response to unlawful conduct by the NRA involving Carry Guard and other related insurance products. Rather than retaliating against the NRA’s speech, she argues that she was simply regulating unlawful conduct. Finally, she argues that, if the court does reach the First Amendment question, her alleged statements and actions were not plausibly coercive.


The United States filed an amicus brief in support of neither party, advocating for somewhat of a middle ground between the two sides’ arguments but arguing that certain of the NRA’s claims should proceed. The Solicitor General argues that some of Vullo’s alleged conduct would constitute a violation of the First Amendment if true. Specifically, the United States is concerned with the allegation that Vullo privately met with Lloyd’s, an insurance company, and supposedly pressured Lloyd’s to end its relationship with the NRA by offering to overlook Lloyd’s unrelated regulatory infractions if it did so. However, the United States advises the Court to reject some of the NRA’s broader arguments which would “threaten to condemn legitimate government activity.” The United States presented these views at oral arguments after successfully moving to participate.


The Brady Center to Prevent Gun Violence argues in its amicus brief that Vullo’s guidance was not coercive but, instead, merely stated the generally established principle that businesses must consider reputational risks as part of their regular operations. The brief further asserts that, in her guidance letters, Vullo was simply reminding DFS-regulated entities of their obligation to manage reputational risks. One can’t coerce someone to do something they are already obligated to do, the brief asserts. Douglas Letter, Chief Legal Officer of Brady, underscored in a statement that the fact that the NRA was recently found liable for egregious financial mismanagement further points to the importance of the government’s decision to warn insurers and banks of these risks.


Additionally, Brady claims that the companies that ceased working with the NRA in 2018 may have done so for reasons entirely unrelated to Vullo’s actions. For example, the series of mass shootings that occurred in 2017 and 2018 (fourteen to be exact), the subsequent March for Our Lives protest in Washington, and the nationwide grass-roots campaign aimed at encouraging businesses to voluntarily cease doing business with the NRA, may have led insurers and banks to sever ties with gun-rights groups. Notably, dozens of companies, including Enterprise, Delta Air Lines, and United Airlines, cut ties with the NRA in the wake of these events.  Those companies did not receive the DFS guidance at issue in Vullo.


Despite the arguments that Vullo’s actions were lawful, the case may not come out in her favor. The NRA has significant support in this case from allies across the political spectrum, including politicians, lawmakers, First Amendment scholars, and organizations. Specifically, 190 individuals and organizations have filed 22 amicus briefs in support of the NRA. This case illustrates how important it is for government officials to use care when making statements or decisions involving firearms. While Vullo may have had the admirable goal of advocating for gun violence prevention, her decision to issue guidance regarding the NRA could backfire significantly. She may have given the conservative Supreme Court an opportunity to continue its trend of handing down decisions benefitting gun rights organizations and hindering the gun violence prevention movement.


An NRA win in this case would not come as a surprise, considering that Justices on both sides of the political spectrum seemed sympathetic to the NRA’s claims at oral argument. Just as the United States argued in its brief, the Justices appeared to be particularly concerned with the Lloyd’s meeting and the fact that Vullo seemed to be encouraging insurers to not only stop doing illegal business with the NRA, but to stop doing all business with it. However, some of the Justices did seem open to the view that, as a government regulator, it was reasonable for Vullo to speak out against the NRA. Justice Kagan, for example, asked: “[i]f reputational risk is a real thing, and if gun companies or gun advocacy groups impose that kind of reputational risk, isn’t it a bank regulator’s job to point that out?” Overall, though, it does seem likely that the Supreme Court will side with the NRA and revive its lawsuit against Vullo.


The Supreme Court may well reach a compromise, finding that Vullo’s guidance letters on their own were acceptable, but her private meeting with Lloyd’s violated the NRA’s First Amendment rights. Although this would still hand the NRA a partial victory, validating yet another position held by the gun rights organization, it would have a less detrimental effect on government speech than if the Court were to allow all of the NRA’s claims to proceed. A narrow ruling focused on the Lloyd’s meeting could be limited to barring officials from offering leniency toward regulated entities in exchange for an agreement to cut all ties, legal and illegal, with a certain advocacy group. The Court might conclude that only this specific type of pressure is an abuse of power constituting coercion.


A determination that the guidance letters are unconstitutional, however, would seriously hinder government officials’ ability to engage in essential public advocacy. Arguably, government speech is especially important when it comes to controversial issues of public concern, as the public has an interest in access to information from qualified government actors on matters of public significance. It’s concerning to imagine that, even in the wake of a tragic mass shooting, government officials could be effectively barred from engaging in essential outreach. Nevertheless, that would be the reality if the Court sides fully with the NRA. Government actors would be deterred from speaking and issuing guidance on important matters of public concern for fear of litigation by a regulated party alleging coercion. If statements like Vullo’s, encouraging companies to consider the reputational risks of working with certain organizations, are considered coercion in violation of the First Amendment, there will undoubtedly be a chilling effect on government speech in such situations.