Georgetown Law Professors Argue Before Supreme Court, Debate First Amendment Rights

Gun Rights

Two Georgetown University Law Center (GULC) professors argued in front of the Supreme Court on opposite sides of a First Amendment case on March 18.

In National Rifle Association v. Vullo, a case about possible government infringement of free speech, David Cole, a professor of constitutional law, represented the National Rifle Association of America (NRA), while Neal Katyal, the Paul and Patricia Sanders Professor of National Security Law, represented Maria T. Vullo, a New York state regulator. The case marks the first time two GULC professors have argued dueling sides of a Supreme Court case.

Katyal, a former acting U.S. solicitor general, said that despite being on opposite sides of the courtroom, he respects Cole, who is also the national legal director of the American Civil Liberties Union, an American nonprofit dedicated to promoting individual and human rights, as a colleague and looked forward to arguing against him.

“I’m thrilled to be arguing this case with David on the other side,” Katyal wrote to The Hoya. “He’s brilliant and kind and committed, and he represents the best of what Georgetown is about.” 

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Cole did not respond to The Hoya’s request for comment.

Vullo recommended that New York State banks and insurance providers avoid conducting business with the NRA in April of 2018, citing the reputational risks of working with gun advocates. Shortly thereafter, three major insurance companies  — Lloyd’s of London, Lockton Companies and the Chubb Corporation — terminated their contracts with the NRA, in which the NRA endorsed certain affinity insurance policies, which provide insurance for certain, specified acts. The NRA sued Vullo and then-New York Governor Andrew Cuomo, arguing that Vullo’s actions on behalf of New York State abridged the NRA’s First Amendment right to free speech. 

However, Vullo contends that the insurance companies’ terminations of the contract were not coerced by her guidance. Instead, they were a result of a 2017 investigation by New York’s Department of Financial Services that revealed that the NRA-endorsed insurance practices were forms of illegal intentional act insurance, which illegally insured gun owners for shooting and harming individuals. This, according to Vullo, independently imperiled the organization’s business contracts and her guidance only amounted to enforcement of New York state’s insurance laws. 

Lindsey Gradowski (CAS ’24, LAW ’27), the editor in chief of the Georgetown University Undergraduate Law Review, attended the case’s oral arguments and said the explanatory power and legal dexterity of both professors impressed her.

“All the advocates spent a significant portion of their time clarifying their advocacy as opposed to advancing specific arguments, which led me to conceptualize the case as more about clarifying facts as opposed to Constitutional interpretation,” Gradowski wrote to The Hoya. “I was also impressed by the speed with which Professors Cole and Katyal were able to respond to difficult questions posed by the justices.”

As a student attending Georgetown Law next fall, Gradowski said that the presence of two Georgetown professors as the litigators for National Rifle Association v. Vullo exemplifies the law school’s strength. 

“This experience reaffirmed my belief that Georgetown Law is home to some of the greatest legal scholars in the nation,” Gradowski wrote.

Joseph Hartman, a professor of constitutional law at Georgetown, said the decision in National Rifle Association v. Vullo has vast implications for the First Amendment, notably how the government interacts with political advocacy groups.

“​​The Court can clarify that the First Amendment prohibits government agencies from threatening regulated entities with adverse action if they do business with disfavored or unpopular advocacy groups — which is more or less what happened in Vullo,” Hartman wrote to the Hoya.

The two professors’ Supreme Court appearance in National Rifle Association v. Vullo comes after the 2023 U.S. News and World Report law school ranking named Georgetown 15th in the country for constitutional law and 15th overall

Hartman said he expects a resounding decision in favor of the NRA and Cole.

“It doesn’t look good for New York, based on the oral arguments yesterday,” Hartman wrote. “This could be an 8-1 or 9-0 decision in favor of the NRA.”

The court has over three months —- until the end of the term in early July — to mull its decision in National Rifle Association v. Vullo.

Gradowski said that Cole and Katyal’s persuasive litigation left her contemplating the case even after the oral arguments finished.

“Both Professor Cole and Professor Katyal were incredibly persuasive, and I found myself agreeing with both of them while they were speaking, despite them advocating for opposite decisions, which left me with a lot to think about after the Court was adjourned,” Gradowski wrote.  

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