Every now and then, the Supreme Court takes up a case involving a public official who acted so foolishly — without any regard for the ordinary norms governing law enforcement, or without any insight into how their actions could undermine some of the government’s most important work — that you wish the justices could each take turns smacking them upside the head.
National Rifle Association v. Vullo, which the Court announced that it would hear last Friday, is such a case. It involves two unrelated actions which former New York State Department of Financial Services (DFS) Superintendent Maria Vullo took against the NRA, one of which successfully shut down an NRA program that recklessly endangered countless New Yorkers’ lives — and one of which recklessly endangered Vullo’s effort to shut down this potentially deadly program.
In 2017, DFS opened an investigation into “Carry Guard,” an NRA-endorsed insurance program that, according to the federal appeals court that heard the Vullo case, “provided liability defense coverage for criminal proceedings resulting from firearm use even where the insured acted with criminal intent.”
Carry Guard offered to pay both the civil and criminal legal costs (up to $1 million for a civil case, and up to $150,000 for a criminal case) of its customers who shot another person, allegedly in self-defense. The NRA actively promoted this insurance to its members as a product that would give them peace of mind if they shot another human being. One pitch to the NRA’s members told them that “you should never be forced to choose between defending your life … and putting yourself and your family in financial ruin.”
For reasons that should be obvious, New York generally does not permit insurance contracts intended to “insure a person for that person’s intentional criminal acts,” and it certainly doesn’t permit the kind of insurance that may pay out if a beneficiary commits a violent crime with a deadly weapon. And so, not long after DFS opened its investigation into Carry Guard, three insurance companies that underwrote or administered Carry Guard or similar programs entered into a consent decree where they agreed to stop providing this kind of insurance.
Together, the three companies also agreed to pay more than $13 million in fines.
All of this is well and good. Nothing in the Constitution prohibits New York from targeting insurers who sell a product that will encourage people to shoot other people. And nothing in the First Amendment prohibits New York from targeting illegal insurance that is backed by the NRA, even though the NRA also engages in First Amendment-protected advocacy.
But then Vullo did something incomprehensibly stupid.
In February 2018, the Parkland, Florida, school shooting happened — killing 17 high school students and school staff. After this shooting, DFS issued a “guidance,” signed by Vullo, which encouraged insurers to “continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations.”
To be clear, this guidance did not explicitly threaten to take any action against insurers who continued to do lawful business with the NRA. But that does not change the fact that DFS, an agency whose responsibilities include law enforcement, and that had recently brought a $13 million enforcement action against insurance companies that did illegal business with the NRA, was now suggesting that those same companies might face consequences if they did other, legal business with the NRA.
This guidance, and similar post-Parkland communications between DFS and the insurance industry, do potentially violate the First Amendment. While the Constitution permits a government official to ask any company to stop doing business with the NRA, it does not typically permit the government to coerce private businesses into halting lawful business with an advocacy group. And DFS’s guidance, which was issued so soon after DFS opened its Carry Guard investigation, looks suspiciously like coercion.
Now this case is before a Supreme Court that is dominated by Republican appointees, and that has a history of handing down recklessly broad decisions benefiting gun rights organizations.
As a general rule, the government has a virtually unlimited right to express its own viewpoint, as do government officials. They may condemn the NRA. They may call for strict gun laws that the NRA opposes. They may say unkind things about the NRA to business leaders who may wish to do business with the NRA. And, if the NRA does something illegal, they may warn businesses against the legal risks of joining that illegal activity.
But, in Bantam Books v. Sullivan (1963), the Supreme Court recognized that “people do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them if they do not come around.” While the government may express whatever opinion it wants about any organization its leaders do not like, it may not use law enforcement officials to implicitly threaten someone with criminal charges unless that person abandons activity that is protected by the First Amendment.
Bantam Books involved the ominously named “Rhode Island Commission to Encourage Morality in Youth,” a government body that identified books and magazines it deemed “objectionable for sale, distribution or display to youths under 18 years of age.” It then sent notices to booksellers and distributors seeking their “cooperation” with the commission in removing such books — and reminding those sellers of the commission’s “duty to recommend to the Attorney General prosecution of purveyors of obscenity.”
According to one book distributor, he was often visited by a police officer shortly after receiving such a notice, and the officer asked the distributor what steps he had taken in response to the notice.
Bantam Books held that this level of pressure — a letter that explicitly mentioned the possibility of a prosecution, followed by a visit from an inquisitive police officer — crosses the line from permissible persuasion to impermissible coercion.
The facts of Vullo aren’t quite as egregious as those in Bantam Books. DFS’s guidance does not mention the possibility of any kind of enforcement action against an insurer who continues to work with the NRA. And there’s no indication that DFS sent an armed police officer to New York insurance companies to check in on whether they had, in fact, dropped their business with the NRA.
Even so, the guidance does raise serious First Amendment concerns. Imagine, for example, that a police officer arrested you for shoplifting — or some other crime that you legitimately did commit, and that a police officer legitimately may arrest you for committing. Then imagine that this same police officer shows up at your workplace a few months later and pressures you to end your relationship with another company. Would you feel free to refuse? Or would you think that this officer, who so recently placed you under arrest, was implicitly threatening to do so again?
That’s basically what happened in Vullo. DFS brought a completely legitimate enforcement action against three insurance companies, arising out of those companies’ decision to administer or underwrite an insurance product that no sensible government would allow to exist. Then, months later, the same agency sent a guidance to all New York insurers — including these same three companies — informing them that DFS “encourages regulated institutions to review any relationships they have with the NRA or similar gun promotion organizations, and to take prompt actions to managing these risks and promote public health and safety.”
It’s not hard to read that guidance as a coercive attempt to punish the NRA because New York’s government disagrees with the NRA’s political advocacy in favor of looser gun laws.
The NRA has sought an extraordinary remedy in the Vullo case. According to the complaint it filed in the trial court that heard this case, the NRA wants a court order requiring DFS to “immediately cease and refrain from engaging in any conduct or activity which has the purpose or effect of interfering with, terminating, or diminishing any of the NRA’s contracts and/or business relationships with any organizations.”
Among other things, that could prevent New York from enforcing its law prohibiting insurers from selling products that encourage people to shoot other people.
Hopefully, the Supreme Court won’t impose such a catastrophic consequence on the people of New York because of a misstep by one of its former officials. But, by bringing herself and her agency into a political dispute about gun advocacy, Vullo gave this highly partisan Supreme Court an opportunity to insert itself into what should have been a routine insurance enforcement action.