LEGAL FACTS

May 24, 2023 – Four more amicus briefs have been filed in support of the NRA’s cert petition to the U.S. Supreme Court. The NRA seeks the court’s review of a Second Circuit decision that dismissed its claims against Maria Vullo, the former head of the New York State Department of Financial Services, for her role in a “blacklisting campaign” against the Association.
 
Texas Attorney General Ken Paxton and Indiana Attorney General Todd E. Rokita; the Scharf-Norton Center for Constitutional Litigation at the Barry M. Goldwater Institute; the Competitive Enterprise Institute; and a consortium of 16 organizations, including Gun Owners of America and Citizens United, are the latest to submit briefs. Financial and business law scholars Brian Knight of George Mason University and George Mocsary of the University of Wyoming College of Law; the Foundation for Individual Rights and Expression (FIRE); and 18 State Attorneys General previously submitted amicus briefs. 
 
Vullo, at the behest of former New York Governor Andrew Cuomo, took aim at the NRA and conspired to use DFS's regulatory power to financially blacklist the NRA – coercing banks and insurers to cut ties with the Association, in order to suppress its pro-Second Amendment speech. The NRA argues that Vullo’s actions were meant to silence the NRA – using “guidance letters,” backroom threats, and other measures to cause financial institutions to “drop” the Association.
 
The NRA's First Amendment claims withstood multiple motions to dismiss. But in 2022, after Vullo appealed the trial court's ruling, the Second Circuit struck down the NRA's claims – ruling, among other things, that in an era of “enhanced corporate social responsibility,” it was reasonable for New York's financial regulator to warn banks and insurance companies against servicing pro-gun groups based on the “social backlash” against those groups’ advocacy. The court also ruled that Vullo’s guidance was not a directive to the institutions she regulated but rather a mere expression of her political preferences.
 
Many State Attorneys General, legal experts, and constitutional scholars disagree with that decision and are making their voices heard to support the NRA. 
 
Texas AG Paxton and Indiana AG Rokita write in their brief, “Allowing government regulatory bodies to leverage their power over third parties to intrude on the speech and associational interests of any private entity harms the ability of States like Texas [and Indiana] to maintain vibrant, growing economies. The actions taken by DFS and its superintendent in this case tend to minimize economic freedom by making businesses hesitant to interact with certain groups and individuals for fear of regulatory retaliation.” They join 18 state attorneys general who filed an amicus brief in April declaring, “The Second Circuit’s decision gives government officials license to financially cripple their political opponents, or otherwise stifle their protected speech – whether those rivals advocate for school choice, abortion rights, religious liberty, environmental protections, or any other politically salient issue...This Court should grant the petition and reverse.”
 
In its brief, the Goldwater Institute urged the Supreme Court to grant cert because “the ubiquitous and largely unchecked powers of government regulators gives them vast power to restrict speech, unless this Court says otherwise.” In a column, “Goldwater to Supreme Court:  Government Can’t Punish Political Opponents for Free Speech,” Goldwater Institute Staff Attorney John Thorpe writes, “The Goldwater Institute filed an amicus brief in support of the NRA, asking the Supreme Court to step in and declare that government officials can’t punish individuals or groups for their free speech by bullying others into cutting ties with them. In its brief, Goldwater pointed out that millions of Americans are subject to the same kind of ‘informal censorship’ that happened here. That’s because they, like the NRA’s former business partners, live and work under complex regulatory regimes where bureaucrats can easily use investigations, licensing decisions, and other forms of red tape as weapons against those whose beliefs and ideologies they disapprove of.” Read the commentary here.
 
The Competitive Enterprise Institute (CEI) declared in its brief, “Abuse of government powers can lead to coercion and censorship. We provide this amicus to demonstrate an alarming phenomenon: the increasing and almost routine incidence of such abuse and such consequences.” Noting that the NRA was among the few groups subject to government bullying that was “not intimidated from going to court to pursue their rights,” CEI stated: “the very pervasiveness of the kind of government action highlighted in the petition – and the detrimental effects of such actions, both on large numbers of people and on established constitutional norms – should encourage this Court to clarify, in this area, what the government may or must not do.”

 

The brief filed by Gun Owners of America, Citizens United, and 14 other groups stated: “If New York is allowed to prevent gun advocacy groups from functioning, what is to prevent Texas and other pro-life states from imposing the same agenda against Planned Parenthood? There must be only one rule for advocacy groups in the nation, and that is – regulators may not abuse their government powers to silence their political opponents.” These groups noted that “[t]he Second Circuit opinion evidenced hostility to rights protected by the Second Amendment” and that New York’s rationale for its actions – that dealing with the NRA created a “reputational risk” for businesses and consumer boycotts – is similar to arguments used to justify segregation in the 1960s that were subsequently rejected by the Supreme Court.