NRA Ruling Doesn’t Clarify Boundaries of Official Censorship

One might hope the US Supreme Court’s unanimity in National Rifle Association of America v. Vullo provides clarity on two issues of First Amendment jurisprudence: When does government action hostile to a private party’s views become unconstitutional censorship? And what is the evidentiary role of government officials’ speech in finding unconstitutional intent?

Ultimately, the decision poses as many questions as answers.

In an opinion joined by all nine justices, Justice Sonia Sotomayor wrote that the NRA’s complaint against Maria Vullo, superintendent of the New York State Department of Financial Services, stated a valid First Amendment cause of action and may proceed. Whether the NRA will ultimately prevail is uncertain as the litigation is in early stages.

Events relevant to the dispute started in 2017 when the DFS began investigating an NRA-affiliated insurance program, Carry Guard, which was insuring against liability for intentional criminal acts—an offering illegal in New York. The NRA was promoting Carry Guard without an insurance producer license, also in apparent violation of New York law.

After the investigation started, and following the shootings at Marjory Stoneman Douglas High School in Parkland, Fla., Vullo and others met with executives at insurance companies doing business with the NRA, including Lloyd’s of London. According to the complaint, Vullo and then-Gov. Andrew Cuomo (D-NY) used the threat of adverse regulatory proceedings to coerce third-party companies to break off arrangements with the NRA because of the NRA’s constitutionally protected advocacy in favor of gun rights.

Although the Supreme Court reversed the US Court of Appeals for the Second Circuit, Sotomayor’s opinion speaks approvingly of the lower court’s framework as to whether a challenged government communication is unconstitutionally coercive. The Second Circuit thought relevant “(1) word choice and tone; (2) the existence of regulatory authority; (3) whether the speech was perceived as a threat; and, perhaps most importantly, (4) whether the speech refers to adverse consequences.”

In this case, Vullo indisputably “had direct regulatory and enforcement authority over all insurance companies and financial service institutions doing business in New York.” The wording of her communications implied that Lloyd’s, for example, could avoid potential law enforcement actions by terminating its arrangements with pro-gun groups. Lloyd’s reacted to her communications in a manner that it implied its understanding of a threat. “In sum,” Sotomayor wrote, “the complaint, assessed as a whole, plausibly alleges that Vullo threatened to wield her power against those refusing to aid her campaign to punish the NRA’s gun-promotion advocacy.”

Despite the Supreme Court’s unanimous reaction to the NRA complaint, however, the reach of the opinion is uncertain. As Justice Ketanji Brown Jackson pointed out in her concurrence, the case is quite unlike the 1963 precedent on which it purports to rest, Bantam Books v. Sullivan. In that case, the Supreme Court “held that a Rhode Island commission’s efforts to coerce intermediary book distributors into pulling certain publications from circulation violated the First Amendment rights of the books’ publishers.” The Vullo court notes Rhode Island had effectively put into place a state-constructed “system of informal censorship.”

Vullo’s communication, however, didn’t interfere directly with the distribution of speech. As Jackson explained, Vullo would have been no less in violation of the First Amendment if her actions were intended to punish the NRA, rather than censor it. But given that the NRA appears to have been acting unlawfully, the issue would be posed whether Vullo would have pursued her course of action for legitimate law enforcement reasons, even if retaliatory animus was also present.

One might wonder how the court’s analysis would apply if a city’s health department suggested it would be interested in investigating technical violations of its restaurant code for restaurants selling or donating food to student protesters on a local campus. Would such targeting be permissible if there were also neutral reasons for focusing on these particular restaurants as potential code violators?

Sotomayor’s opinion in Vullo resonates with a dissenting plea she made six years ago in Trump v. Hawaii—a plea joined only by the late Justice Ruth Bader Ginsburg—to invalidate a presidential proclamation placing entry restrictions on the nationals of eight foreign states, six of which are majority Muslim. She argued that the proclamation was violative of the Establishment Clause because it was the product of anti-Muslim animus—evidenced by candidate and later-President Donald Trump’s comments that were hostile to the faith.

However, a five-justice majority in an opinion written by Chief Justice John Roberts held the court had to consider the “significance of [Trump’s] statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself.”

In Vullo, the court treats the superintendent’s regulatory authority as making her more vulnerable to allegations of coercion; in Trump v. Hawaii, the president’s authority entitled him to a presumption of neutrality. One supposes the Vullo Court might have treated Trump v. Hawaii as distinguishable because of its national security context, but the court doesn’t mention the case at all.

It will also be interesting to see how the court treats the issue of coercion in Murthy v. Missouri, which focuses on whether the Biden administration unconstitutionally coerced social media companies to downplay or remove posts deemed misinformation with regard to the Covid-19 pandemic.

The US Court of Appeals for the Fifth Circuit found the White House and four other federal agencies effectively created a system of informal censorship of major social media platforms in violation of the First Amendment rights of three doctors, a news website, a health-care activist, and two states. Yet it isn’t clear the government actors have regulatory authority over any social media platforms they could leverage to fight disinformation, and the government characterizes the social media platforms’ action as voluntary private “editing.”

A Supreme Court decision holding the relevant officials’ tone was coercive unaccompanied by any specific threats would go significantly beyond the decision in Vullo in limiting government initiative to influence the flow of information to the public.

The case is NRA v. Vullo, US, No. 22-842, 5/30/24.

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

Author Information

Peter M. Shane is distinguished scholar in residence and adjunct professor of law at New York University and professor emeritus at the Ohio State University’s Moritz College of Law.

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