The Supreme Court weighed the National Rifle Association’s (NRA) free speech case against a former New York regulator during oral arguments Monday.
Over 75 minutes of arguments, the justices probed how to distinguish when government officials go beyond permissible advocacy and cross into unconstitutional coercion.
“How do you define when it goes too far along that line?” asked Justice Samuel Alito, one of the court’s leading conservatives.
The NRA is asking the justices to resuscitate its First Amendment lawsuit against Maria Vullo, who ran New York’s Department of Financial Services and began investigating the NRA in 2017.
Vullo has since left office, but the NRA alleges she violated the First Amendment by impermissibly encouraging insurers and banks she regulated to sever ties with the gun rights group.
In the wake of the Parkland (Fla.) school shooting, which killed 17 students and staff and reignited a national debate around gun control, Vullo sent guidance letters urging banks and insurers regulated by her department to sever ties with the NRA, warning of “reputational risks.”
Vullo at the time was investigating NRA-endorsed insurance programs, leading some companies to acknowledge their programs were unlawful. The NRA has also taken aim at comments Vullo made during an alleged private meeting with Lloyd’s, an insurance giant.
Several justices seemed open to the NRA’s claims that those actions amounted to coercion, but it remained unclear whether a majority was persuaded.
Neal Katyal, Vullo’s attorney, asserted that ruling for the gun rights group would enable plaintiffs to challenge a flood of enforcement actions across the federal government and in each state by claiming a First Amendment violation.
“You would be opening the door to something very, very dangerous and destructive down the road,” Katyal said.
He referenced the recent calls to force a TikTok sale or President Biden’s comment at the State of the Union that “Now we must beat the NRA again!”
“It’s not just the NRA today. It’s every regulated party tomorrow, from TikTok on,” Katyal said.
Some of the Supreme Court’s liberal justices appeared sympathetic to that view, portraying Vullo’s actions as standard for government regulators.
“If 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?” Justice Elena Kagan said.
Justice Sonia Sotomayor at one point told the NRA’s lawyer, “it seems to me you’re trying to” break new ground in the court’s First Amendment case law.
The NRA lawyer who was receiving those concerns might come as surprise.
For the first time, the American Civil Liberties Union (ACLU) represented the NRA on Monday, despite their deep splits on gun control measures.
But David Cole, the ACLU’s legal director who argued the case, made clear the two groups were aligned when it comes to the First Amendment issue at hand.
“This was not about enforcing insurance law or mere government speech,” Cole said. “It was a campaign by the state’s highest political officials to use their power to coerce a boycott of a political advocacy organization because they disagreed with its advocacy.”
The ACLU and NRA’s alliance wasn’t the only unusual dynamic on display. Both Cole and Katyal are Georgetown Law professors and years-long friends.
A decision in the case, NRA v. Vullo, is expected by the end of June.
The argument followed one earlier in the day that also delved into when government officials engage in unconstitutional coercion.
In that case, the justices weighed the constitutionality of the Biden administration’s contacts with social media companies to police online misinformation about the legitimacy of the 2020 election and COVID-19. Two Republican attorneys general contend it amounted to a campaign of censorship.
But in that argument, the justices appeared skeptical of blocking the administration’s communications. In the NRA case, however, the justices seemed open to the group’s First Amendment claims.
Vullo herself was in the courtroom for Monday’s argument, sitting hunched over the counsel table. At times, she wrote notes to her attorneys.
“You say in your brief this case is not even close. Do you stand by that?” a skeptical Alito asked her attorney, in what became the final question of the argument.
“Yes,” Katyal responded.
Sitting just feet away, Vullo began tapping her foot.