The Supreme Court’s Free Speech Warning in NRA Case Matters Now

The US Supreme Court is considering whether to take up a case with wide-ranging implications for free speech, the treatment of so-called “disfavored speakers,” and the American way of life.

National Rifle Association v. Vullo arises from allegations that New York financial regulator Maria Vullo used the power of her office to pressure the companies she regulated into cutting ties with the NRA through implicit threats delivered in private meetings and reinforced by official, public guidance.

In a unanimous 2024 decision, the Supreme Court held that the conduct, if proven, violates the First Amendment’s most basic protection: Government officials may not do indirectly what the Constitution forbids them to do directly. The question now is whether that clear ruling retains real force—or can be weakened on remand.

The court sent the case back to the US Court of Appeals for the Second Circuit to reconsider whether the regulator was entitled to protection (qualified immunity) in light of that ruling. Unfortunately, the lower court’s response now puts the case back before the justices.

The court’s original decision is notable because it reaffirmed old ground and reminded that government actors might well be liable for the damage they cause when they use government power against private entities. The court relied on principles dating back more than 60 years to Bantam Books v. Sullivan, which held that informal government pressure can be just as unconstitutional as overt censorship.

The First Amendment doesn’t allow officials to sidestep constitutional limits by leaning on regulated entities behind closed doors.

Justice Sonia Sotomayor, writing for a unanimous court, stated the principle plainly: “The First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or...through private intermediaries.”

The opinion emphasized that while officials may criticize or attempt to persuade, they cross a constitutional line when they use regulatory authority to pressure others into silencing or economically isolating disfavored speakers.

My firm argued that point as counsel to the NRA—and served as an architect of the association’s campaign to combat viewpoint discrimination.

The association’s advocacy made clear that Vullo’s actions were not happenstance enforcement. At the time, then-New York Gov. Andrew Cuomo, a Democrat, publicly embraced the effort to shut down the NRA: “If I could have put the NRA out of business, I would have done it 20 years ago.”

This statement, and the state’s actions, frame the regulator’s conduct as part of an orchestrated effort to penalize the NRA for its views, not a neutral application of financial oversight.

Advocates on the right and left underscored the broader stakes. The American Civil Liberties Union, which advocated for the NRA, warned that the implications stretch far beyond guns. As the ACLU put it, “if New York can do this to the NRA, Texas or Florida could use the same tactics against groups advocating immigrants’ rights, the right to abortion, or other vital civil liberties.”

Advocacy for All

Since the 2024 decision, courts across the country have cited Vullo in cases involving speakers across ideological and political lines. That broad uptake underscores that the ruling was never about the NRA alone. It was about the First Amendment’s neutrality.

Constitutional protection doesn’t depend on whether the speaker is popular, polite, or politically convenient. It exists to protect speech that is controversial or even unwelcome by those in power.

The case’s return to the Second Circuit is extremely consequential. The Supreme Court made clear that the lower court was free to reconsider whether Vullo was entitled to qualified immunity in light of “clearly established law.” But on remand, the Second Circuit didn’t meaningfully engage with the Supreme Court’s articulation of that law—or with its own precedent. Instead, it adopted an approach that effectively shields the alleged conduct from accountability.

At the heart of that approach is a rigid version of qualified immunity that demands near-identical factual precedents before recognizing that a constitutional violation is “clearly established.”

This kind of “fact-matching test” is ill-suited to the First Amendment. Government efforts to suppress speech rarely repeat themselves exactly. Officials adapt and tactics evolve. If finding a prior case with a matching script is required, then the First Amendment protection against government officials is limited to yesterday’s abuses—not those that occur today or in the future.

Once courts begin parsing facts so narrowly that constitutional rules lose practical effect, those rules cease to function as meaningful constraints on government power. Qualified immunity, intended to protect officials from liability for genuinely unforeseeable violations, becomes a doctrine that rewards innovation in constitutional evasion.

Regulated entities shouldn’t have to guess whether compliance with the law is enough, or whether political alignment has become an unspoken prerequisite for regulatory peace.

Some may argue that prospective relief, such as injunctions, is enough to protect free speech. But in a regulatory environment where informal pressure can have immediate and lasting economic consequences, Congress and the Supreme Court have long recognized otherwise.

When lawmakers enacted 42 U.S.C. § 1983 in 1871, they understood that damages are often essential to deter abuse and compensate real harm. The Supreme Court has repeatedly affirmed that principle, including in Carey v. Piphus, where it recognized damages as a core mechanism for enforcing constitutional rights.

Free Speech Guarantees

In Vullo, the NRA alleges concrete financial harm flowing directly from the alleged suppression of its speech. To foreclose damages categorically through an expansive application of qualified immunity risks reducing the Supreme Court’s unanimous decision to a symbolic victory without consequence. For speakers who are already disfavored, symbolism isn’t protection.

The issue before the court isn’t whether Vullo is ultimately liable—hat determination belongs to a fact-finder after discovery. The issue is whether lower courts may neutralize clearly established constitutional law by demanding fact-for-fact replicas before allowing claims to proceed.

Correcting that error wouldn’t expand liability or rewrite doctrine. It would reaffirm that long-standing First Amendment principles remain clearly established even when applied to new factual settings. That isn’t judicial activism. It’s constitutional maintenance—and for a free speech guarantee that belongs to everyone, it’s essential.

The case is NRA of Am. v. Vullo, 2024 BL 184300, U.S., 22-842., 5/30/24.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

William A. Brewer III is partner at Brewer, Attorneys & Counselors. His firm represented the NRA as counsel in its original case against Maria Vullo and led the association’s efforts to secure a unanimous Supreme Court decision in May 2024.

Jed Sexton contributed to this article.

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