Balancing Persuasion and Coercion: Supreme Court Hears NRA Free Speech Case

The US Supreme Court heard oral arguments on Monday, March 18, for the National Rifle Association’s case against a New York state regulator concerning a potential violation of First Amendment rights. In National Rifle Association v. Vullo, the American Civil Liberties Union is representing the NRA, claiming that Maria Vullo, a former superintendent of New York state’s department of Financial Services, unlawfully wielded her authority to pressure banks and insurance companies to cut ties with the organization [1]. Following the Parkland mass shooting which left 17 dead [2], Vullo had released guidance published under her letterhead warning investors and insurers about the risks of doing business with the NRA and other gun groups based on potential “social backlash” [3]. Vullo argues that she did not apply any unlawful pressure to disassociate with the organization, and her lawyer 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” [4].

The NRA’s case was originally struck down by the Second Circuit in 2022, ruling that Vullo’s warning was reasonable in the framework of the modern era of “enhanced corporate social responsibility” [5]. After appeal, the Supreme Court agreed to review the case. The court must balance persuasion and coercion and determine whether Vullo’s actions amounted to a suppression of speech or merely constituted a responsible dissemination of information to financial stakeholders regarding potential risks. 

Arguing for the NRA, the ACLU urged the court to apply precedent from Bantam Books v. Sullivan (1963), which established that “informal, indirect efforts to suppress or penalize speech by threatening private intermediaries violates the First Amendment just as much as direct censorship” [6]. While the ACLU might seem to be a surprising supporter for the NRA, they stated in a press release that the organization “disagrees sharply with the NRA on many issues, yet we represented the group in this case because of the First Amendment principles at stake” [7]. Free speech is an essential civil liberty, and arguable violations of the first amendment fit perfectly with the ACLU’s goals. 

Perhaps more surprising is the support from the Biden administration, typically expected to be on the other side of battles with the NRA. Justice Department lawyer Ephraim McDowell actually encouraged the Supreme Court justices to hear the NRA’s case, which justice Kavanaugh described as “jarring” [8].  

The case highlights the ever-present issue of governmental oversight and its intersection with corporate practices. As the Supreme Court prepares to weigh these considerations, the outcome holds significant implications for both the rights of advocacy groups like the NRA and the regulatory prerogatives of government officials tasked with safeguarding public interest.

The majority conservative court (6-3) has taken a much broader approach to gun rights, and seemed very receptive to the ACLU’s arguments. Justice Samuel Alito said, “This is a First Amendment case. All they need to do is to show that the desire to suppress speech was a motivating factor” [9]. A ruling can be expected by the end of June 2024.

[1] Lindsay Whitehurst, Supreme Court Appears Receptive to NRA Free-Speech Lawsuit Against a Former New York State Official, Associated Press (Mar. 18, 2024, 4:55 PM), https://apnews.com/article/nra-parkland-mass-shooting-aclu-supreme-court-be6e5177721656a71410b558ec216217

[2] Press Release, National Rifle Association,  Supreme Court Accepts NRA First Amendment Case, https://home.nra.org/statements/supreme-court-accepts-nra-first-amendment-case-a-historic-step-forward-for-the-nra-and-free-speech/

[3] John Kruzel & Andrew Chung, US Supreme Court Weighs NRA Free Speech Fight With New York Official, Reuters (Mar. 18, 2024, 4:17 PM), https://www.reuters.com/legal/us-supreme-court-weigh-nra-free-speech-fight-with-new-york-official-2024-03-18/.

[4] National Rifle Association, supra note 3.

[5] Press Release, American Civil Liberties Union, ACLU Defends NRA’s First Amendment Rights, Urges Supreme Court to Protect All Advocacy Groups’ Free Speech Rights (Mar. 18, 2024, 4:03 PM), https://www.aclu.org/press-releases/aclu-defends-nras-first-amendment-rights-urges-supreme-court-to-protect.

[6] Ibid.

[7] Reuters, supra note 4.

[8] Associated Press, supra note 1.