LEGAL FACTS

Editorial: NRA Case Shows the Supreme Court Must Stop Informal Censorship
Bloomberg Law, March 18, 2024

 

If the First Amendment stands for anything, it stands for the idea that a government official can’t go after you just because someone doesn’t like what you say. But that’s exactly what New York state officials did in NRA v. Vullo, a case to be argued before the US Supreme Court this term.

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The Supreme Court should stop government officials in New York and nationwide from using informal means to punish speakers based on their viewpoints, no matter how unpopular. READ MORE

 

Editorial: The NRA has a Case Before the Supreme Court that It Absolutely Should Win
Vox, March 11, 2024

 

The Supreme Court will hear two cases on Monday, March 18, that are often referred to as “jawboning” cases — that is, cases where the government tried to pressure private companies into taking certain actions, but without actually using any of its coercive power.

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On the surface, the two cases have many similarities. Both involve claims that the First Amendment imposes strict limits on the government’s ability to cajole, hector, or otherwise try to persuade private companies to act in a particular way. But these similarities are only an inch deep.

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One case, known as National Rifle Association v. Vullo, involves a fairly obvious violation of the First Amendment. READ MORE

 

Editorial: The NRA Strikes Back
The New York Sun, March 8, 2024

 

Did New York State try a kind of backdoor censorship of the National Rifle Association because of its defense of the Second Amendment? The NRA, backed by the American Civil Liberties Union, will be arguing that question at the Supreme Court, after losing in the Second Circuit. The First Amendment dispute comes on the heels of the NRA’s victory in New York after Attorney General Letitia failed to dissolve the venerable civil rights group. READ MORE

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Commentary: New York's Coercion of Private Companies to Blacklist the NRA Has a Long and Dark History
ACLU, March 4, 2024

 

More than 60 years ago the Supreme Court ruled that the First Amendment bars the government from coercing private entities to punish speech that the government disfavors. Just as the government can’t directly punish or censor speech it disagrees with, it cannot do so indirectly by coercing private parties to do the same.

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History underscores the importance of this free speech protection. Government officials have all too often enlisted private parties—from the White Citizens’ Councils of the Jim Crow South to the blacklists of Communists in the McCarthy era—to punish those with whom they disagree. New York’s efforts to punish the National Rifle Association, at issue before the Supreme Court in National Rifle Association v. Vullo, follow in the footsteps of those earlier censorship efforts. READ MORE

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Is There Any Remedy When You're Censored?
The Wall Street Journal, February 25, 2024

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Philip Hamburger, CEO of the New Civil Liberties Alliance and a teacher at Columbia Law School, writes in an editorial published by The Wall Street Journal that the U.S. Supreme Court has "three opportunities this term to give teeth to the First Amendment." 

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He writes, "In National Rifle Association v. Vullo, a New York state official took aim at gun advocacy by threatening regulatory hassle for bankers and insurers that continued to do business with the NRA. Recognizing the threat, they dumped the organization. Now that the official, Maria Vullo, is being sued, she claims that under the qualified-immunity doctrine, she can’t be ordered to pay damages." READ MORE.

 

Opinion: Why the ACLU is Working with the NRA to Protect Americans' Free Speech Rights
USA Today, January 2, 2024

 

Each year at the U.S. Supreme Court, an array of marquee cases tends to draw all of the attention. However, there are also sleepers among the pending cases that have significant importance. One such case involves a rare alliance between the American Civil Liberties Union and the National Rifle Association.

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NRA v. Vullo deals with the growing effort by government agencies to target the advertisers of conservative and dissenting websites to kill the funding for opposing views. While the case deals with this effort on the state level, it could produce a ruling on indirect efforts by government, including the Biden administration, to censor viewpoints. READ MORE

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Missouri AG Andrew Bailey: The Supreme Court Must Protect Free Speech

Kansas City Star, January 1, 2024

 

In a free society, the debate between opposing viewpoints should be played out in the marketplace of ideas. Enshrined in the First Amendment, our right to free speech is the bedrock of our great nation. Unfortunately, free speech is under attack by the very people sworn to protect it: government officials. READ MORE

 

Editorial: New York's Attempted Hit on the NRA Violated First Amendment
The American Spectator, December 4, 2023

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The federal government’s informal censorship campaigns against Americans’ online speech have justifiably ignited public outrage. Extensive reporting, as well as a lawsuit now before the Supreme Court, have revealed that the federal government cajoled and coordinated with social-media platforms to remove or suppress disfavored speech. Given these platforms’ outsized significance in national discourse in the digital age, this story deserves the public attention it has garnered.

 

Government officials’ informal efforts to stifle legal speech and conduct extend far beyond social media and the internet, however. As the Competitive Enterprise Institute has chronicled at length, the government has perpetrated softcore censorship (known as “jawboning”) throughout many parts of American life for decades.

 

....The Supreme Court will soon hear one such case, National Rifle Association of America v. Vullo. Here, the NRA alleges that a left-wing New York state official violated the First Amendment by coercing financial institutions to discontinue their business with the organization. This effort combined vague semi-formal regulatory guidance and an explicit threat of legal action, the NRA says. READ MORE

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Editorial: Goldwater to Supreme Court Government Can't Punish Political Opponent for Free Speech
Goldwater Institute, May 23, 2023

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The government’s job is to safeguard fundamental rights, not weaponize its power against political opponents who say things the government doesn’t like. But New York state officials abused their power to punish the National Rifle Association (NRA) for exercising its constitutional right to free speech, so today the Goldwater Institute filed a brief urging the U.S. Supreme Court to protect the NRA’s First Amendment freedoms. READ MORE

 

Editorial: Does the First Amendment Allow a Government Official to Make Threats Like a Mob Boss?
Institute for Free Speech, April 19, 2023
 

What would you do if a powerful government regulator “suggested” you drop one of your customers because she didn’t like the customer’s political speech? What if she pointed out that lots of your “responsible” competitors had cut off that customer already, and that she had just levied millions of dollars in fines against three competitors who failed to follow her “advice?”

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And what if you were that disliked customer, a well-known and controversial advocacy group? Can a government official choke off your access to banks and insurance companies because she didn’t like your politics? Does punishing regulated companies because they do business with the government’s political foes violate the First Amendment? The Supreme Court has just been asked that question, and the  question is important enough that 18 states just urged the Court to consider it, citing “troubling allegations of governmental abuse of power.”

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This scenario becomes more believable when you learn it involves the National Rifle Association and Maria Vullo, formerly the New York State Superintendent of Financial Services, who regulated banks and insurance companies. READ MORE

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Editorial: National Rifle Association v. Vullo Gives SCOTUS an Opportunity to Resolve a Key First Amendment Circuit Split
The Federalist Society, April 12, 2023
 

A new cert petition in National Rifle Association v. Vullo asks the Supreme Court to address a circuit split over how to apply its decision in Bantam Books v. Sullivan and to explain for the first time the basis of its government-speech doctrine. In Vullo, the National Rifle Association (NRA) sued Andrew Cuomo and Maria Vullo, in their official capacities as Governor and Superintendent of the New York State Department of Financial Services, respectively. At bottom, the NRA alleged that Cuomo and Vullo used their offices to stifle protected political advocacy.

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According to the complaint, these officials—particularly Vullo—sought to undermine the NRA by leveraging their regulatory power over the NRA’s financial backers. They never made explicit threats, but they implied that there would be adverse consequences for firms that worked with the NRA. READ MORE

 

Editorial: Could the Supreme Court Help Protect the First Amendment from Regulatory Abuse? 
The Hill, April 4, 2023
 

Imagine that Florida’s financial regulators told banks and insurance companies that they should consider the risk that working with Planned Parenthood might pose to them. Or that Texas’s regulators said that banks and insurance companies should consider whether serving organizations that support undocumented migrants might damage their reputations. Alarming, right?

 

Thankfully none of this happened. But New York did it to the National Rifle Association (NRA), backed up with enormous fines to firms doing business with that organization for technical violations of state insurance laws. This, as readers may know, is far from the only recent example of financial regulation being used as a tool to control broader society and bully political opponents. The NRA is petitioning the Supreme Court to reverse the Second Circuit’s dismissal of its final claim challenging these actions.

 

Although this case is obviously important for the NRA, its implications are much broader. What happened to the NRA could happen to any other group that draws the ire of the government, whether Republican or Democrat. The threat is universal and must be checked. READ MORE

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Commentary: Cert. Petition on the First Amendment and Coercive Government Threats in NRA v. Vullo

Reason, March 21, 2023

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First Amendment Scholar Eugene Volokh writes for Reason that he recently joined lawyers from Brewer, Attorneys & Counselors, in filing a petition asking the Supreme Court to review the Second Circuit decision in NRA v. Vullo. 

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Volokh writes, "I generally tend to agree with the NRA's ideological views, to a considerable extent, but I would have been glad to be engaged to argue a similar case on behalf of groups I disagreed with as well; it's a pretty important First Amendment question that can affect groups with all sorts of views." READ MORE

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Editorial: The NRA vs. the Censorship ‘Mob’
The Wall Street Journal, December 27, 2022
 

It’s the classic threat of B-movie mobsters: Nice business you got there, it’d be a shame if something happened to it. Government shouldn’t operate like that, but it too often does, sometimes to evade the Constitution’s limits on its power. A recent decision by the Second U.S. Circuit Court of Appeals upheld the practice and provided a road map for officials to circumvent the First Amendment’s protection for freedom of speech.

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Maria Vullo led the New York State Department of Financial Services, which has broad power to regulate almost every major financial player in the U.S. After the February 2018 school shooting in Parkland, Fla., Ms. Vullo and then-Gov. Andrew Cuomo issued a press release stating that the department would “urge” the insurers, banks and companies it regulates “to review any relationships they may have with the National Rifle Association” for “reputational risk.”

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The goal was to punish the NRA for its gun-rights advocacy. READ MORE

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Editorial: Progressive Governments’ Economic War on the NRA Fails in Court
The National Review, January 8, 2020

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Some politicos just can’t stop grandstanding, even if it means their court case goes down in flames. Consider what just happened in a federal court in Los Angeles.

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Not long ago, progressive state and local officials nationwide were vowing to take down the hated National Rifle Association by targeting its pocketbook. When city authorities in Los Angeles and San Francisco gave that idea a try, they were following the lead of Governor Andrew Cuomo, who had unleashed New York financial regulators to go after the gun-rights organization’s access to insurance and banking services.

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Now all three are facing a reckoning in court, based not on the Second Amendment but on the First. Without needing to even consider the issue of gun rights, federal courts are recognizing that boycotts enforced by government power can menace free speech and free association. READ MORE

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Editorial: The NRA Will Have Its Day in Court
The Wall Street Journal, November 14, 2018

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Lost in the recent coverage of congressional elections and the resulting reallocation of power in Washington is some welcome news for those hoping to restrain the power of government everywhere. A federal judge in New York is allowing a critical case for personal liberty to move forward. READ MORE

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Commentary: In NRA v. N.Y., a Timely Reminder that Officials Can't Use Their Power to Squelch Speech
Reuters, November 7, 2018

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The National Rifle Association’s favorite part of the Bill of Rights is the Second Amendment, but it was the Constitution’s protection for free speech that kept alive the NRA’s lawsuit accusing top New York officials of pressuring insurers to ditch the gun rights group.  READ MORE

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New York State Can't Be Allowed to Stifle the NRA's Political Speech
ACLU, September 10, 2018

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In the ACLU’s view, targeting a nonprofit advocacy group and seeking to deny it financial services because it promotes a lawful activity (the use of guns) violates the First Amendment. Because we believe the governor’s actions, as alleged, threaten the First Amendment rights of all advocacy organizations, the ACLU filed a friend-of-the-court brief supporting the NRA’s right to have its day in court. READ MORE

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Andrew Cuomo's Trumpian War on the NRA
The New Republic

August 28, 2018

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The American Civil Liberties Union last week joined a closely watched court case, taking sides with a national advocacy organization against a powerful New Yorker who’s accused of enacting a retaliatory and unconstitutional policy. For once, this person wasn’t President Donald Trump. READ MORE

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Opinion: Look Who's Supporting the NRA Against Cuomo
The Wall Street Journal

August 27, 2018

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New York Governor Andrew Cuomo has earned a new opponent in his assault on liberties enumerated in the Bill of Rights. Better late than never, the American Civil Liberties Union is standing up against Mr. Cuomo’s abuse of the National Rifle Association. The happy result could be not just expanded liberty in New York but safer financial institutions as well. READ MORE

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Editorial: Cuomo Targets the NRA and Free Speech
Albany Times Union

August 7, 2018

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Andrew Cuomo versus the NRA? You know the governor is loving this.
 

The public brawl with the group Democrats hate most is just what Cuomo needs to carry him through next month's primary and to elevate his standing for the coming presidential race. It's a wonderful way to change the subject and brush aside those unpleasant corruption headlines.
 

But there's something to consider if you are among those cheering the governor during this particular fight: His attack on the National Rifle Association is more harmful to the First Amendment than the Second.  READ MORE

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Editorial: The NRA vs. Authoritarianism
The Wall Street Journal

May 15, 2018

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Some leftist pundits are too busy claiming that Donald Trump’s reduction of federal power amounts to authoritarianism to notice the genuine article in the state of New York. Or maybe they don’t care.  READ MORE

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Editorial: Is New York Using Bank Regulation to Suppress Speech?
FinRegRag

April 22, 2018

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NYDFS wants NY FIs to evaluate whether relationships with the NRA pose reputational risk to the institutions and “jeopardize public safety.” This request could easily be construed is a thinly veiled threat.  READ MORE

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