Protecting the NRA’s Freedom of Speech Rights Protects Us All

It should be obvious that government officials can’t deploy their regulatory authority to punish an advocacy group because they disagree with its point of view. Yet that is exactly what Gov. Andrew Cuomo (D-NY) and his chief financial regulator, Maria Vullo, set out to do in 2018.

They favored gun control, and therefore disfavored the National Rifle Association. Cuomo and Vullo were of course free to criticize the NRA. But rather than just rely on the persuasive force of their ideas, they deployed the coercive power of their offices to pressure banks and insurance companies to cut ties with the NRA, as alleged.

On May 30, the US Supreme Court in effect confirmed what should have been obvious, unanimously ruling that Vullo’s and Cuomo’s alleged words and actions stated a claim under the First Amendment. In doing so, the court overturned a unanimous decision from the Second Circuit against the NRA. The decision makes no new law, but reaffirms what’s been established since the Supreme Court announced, 60 years ago, that government officials can’t use informal coercion to punish speech they disfavor.

The critical facts alleged in NRA v. Vullo are stark. In February 2018, Vullo, New York’s top financial regulator, with direct oversight of every bank and insurance company in the state, told Lloyd’s, the insurance underwriter, that she’d go easy on unrelated insurance violations if it aided her campaign to weaken the NRA by halting all business with the group. Lloyd’s agreed, and did her bidding.

Six weeks later, Vullo issued formal guidance letters and a press release directing the thousands of banks and insurance companies she oversees to cut their ties with the NRA—not because of any alleged improprieties, but because it “promotes guns.” In the accompanying press release, Cuomo said he directed Vullo to issue the guidance because doing business with the NRA “sends the wrong message.”

This was not about enforcing insurance law; it was about using state power to coerce a boycott of a political group because the state’s highest officials disapproved of its speech. As Cuomo put it in a tweet responding to the NRA’s subsequent lawsuit, “The regulations NY put in place are working. We’re forcing the NRA into financial jeopardy. We won’t stop until we shut them down.”

Had the court accepted Vullo’s argument that this was merely “government speech” and ordinary law enforcement, as the US Court of Appeals for the Second Circuit did, the decision would have provided a playbook for state officials across the country to blacklist whichever groups they disfavor.

That’s why the American Civil Liberties Union agreed to represent the NRA in the Supreme Court. The ACLU disagrees profoundly with the NRA on many issues of law and policy, but we agree that government officials can’t punish advocacy groups simply because they disagree with what they say.

The court’s unanimous decision ensures that officials can’t achieve indirectly what they are barred from achieving directly: punishing speech simply because they disagree with its message. That principle is foundational to a free and democratic society. And the Vullo decision ensures that the First Amendment’s protection extends not just to direct penalties, but to the sorts of end runs that Vullo and Cuomo attempted in targeting the NRA.

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

David Cole is national legal director of the ACLU and professor at Georgetown Law. The ACLU represented the NRA in NRA v. Vullo, and Cole argued the case before the Supreme Court.

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