US Supreme Court weighs NRA free speech fight with New York official

© Reuters. FILE PHOTO: A view shows firearms at the National Rifle Association (NRA) annual convention in Indianapolis, Indiana, U.S., April 15, 2023. REUTERS/Evelyn Hockstein/File Photo

By John Kruzel and Andrew Chung

WASHINGTON (Reuters) -The U.S. Supreme Court on Monday grappled with the National Rifle Association’s claim that a New York state official violated its free speech rights by coercing banks and insurers to cut ties with it – with the gun rights group backed by an unlikely ally: President Joe Biden’s administration.

The NRA urged the justices to revive its 2018 lawsuit accusing Maria Vullo, a former superintendent of New York’s Department of Financial Services, of unlawfully retaliating against it following a mass shooting in which 17 people were killed at a high school in Parkland, Florida.

The justices heard arguments in the NRA’s appeal of a lower court’s decision to throw out its suit against Vullo. At issue was whether Vullo wielded her regulatory power to coerce New York financial institutions into cutting ties with the NRA in violation of the U.S. Constitution’s First Amendment protections for freedom of speech.

The justices sought to distinguish permissible government advocacy from unlawful coercion.

“How do you define when it goes too far?” conservative Justice Samuel Alito asked David Cole, a lawyer with the ACLU civil rights advocacy group that represented the NRA.

Cole argued that Vullo and other New York officials abused their authority in violation of the First Amendment, telling the justices: “There’s no question on this record that they encouraged people to punish the NRA.”

Vullo in 2018 called upon banks and insurers to consider the “reputational risks” of doing business with gun rights groups following the Parkland shootings. 

She later fined Lloyd’s of London and two other insurers more than $13 million for offering an NRA-endorsed product called “Carry Guard” that Vullo’s office found was in violation of New York insurance law. The product provided liability coverage for policyholders who caused injuries from gunfire, even in cases involving the wrongful use of a firearm.

The insurers agreed to stop selling NRA-endorsed products that New York considered illegal.

Ephraim McDowell, the Justice Department lawyer representing Biden’s administration, urged the justices to let the NRA pursue its lawsuit, arguing that the group had plausibly alleged that Vullo had violated its First Amendment rights.

McDowell focused on the NRA’s claim that Vullo met with insurance executives at Lloyd’s, presented her views on gun control and suggested going easy on regulatory infractions if the company stopped providing insurance for the NRA.

“That’s an explicit threat,” McDowell said.

The NRA, an influential nonprofit group closely aligned with Republicans, has worked to defeat gun control proposals measures favored by many Democrats including Biden and backed pivotal lawsuits that have widened U.S. gun rights. The NRA is organized under New York state laws, with its main offices in Virginia.

Its lawsuit, seeking unspecified monetary damages, accused Vullo of unlawfully retaliating against it for its constitutionally protected gun rights advocacy by pursuing an “implicit censorship regime.” According to the suit, the state’s “blacklisting” campaign sought to deprive the NRA of basic financial services and threatened its advocacy work.

‘A BIT JARRING’

Conservative Justice Brett Kavanaugh asked Neal Katyal, the lawyer representing Vullo, to explain why Biden’s administration backed the NRA given the U.S. government’s interest in protecting its right to advocate its point of view.

“It’s a bit jarring,” Kavanaugh said, that the administration has taken a view opposing Vullo’s position.

Vullo has said her statements encouraging financial institutions to examine their ties to pro-gun organizations following the Parkland shooting had not “crossed the line between permissible persuasion and unconstitutional coercion.”

Katyal accused the NRA of “seeking to weaponize the First Amendment and exempt themselves from the rules that govern you and me simply because they’re a controversial speaker.”

“When you’re in a situation like this of conceded illegality,” Katyal said, “there is an obvious alternative explanation for what Ms. Vullo was doing here, which was enforcing the law.”

After a federal judge dismissed most of the NRA’s suit, the Manhattan-based 2nd U.S. Circuit Court of Appeals tossed two remaining free speech claims.

The NRA originally also named Vullo’s department and then-New York Governor Andrew Cuomo, a Democrat, as defendants but the case was subsequently narrowed. Vullo was sued in both her official and personal capacities.

The Supreme Court, which has a 6-3 conservative majority, has taken an expansive view of gun rights.

A ruling is expected in this case by the end of June, as well as in another case testing the limits of government influence over speech. That case, also argued on Monday, involved a bid to prevent Biden’s administration from encouraging social media platforms to remove or moderate content that U.S. officials deemed objectionable or misinformation.