Supreme Court Justice Tells Judge How to Hear New NRA Case

The Supreme Court issued a unanimous decision on Thursday in favor of the National Rifle Association (NRA) as part of a First Amendment case National Rifle Association v. Vullo, with Justice Ketanji Brown Jackson suggesting how a circuit court should hear future arguments.

The NRA, the petitioner in this case, sued former superintendent of the New York Department of Financial Services, Maria Vullo, who was alleged to have pressured DFS-regulated entities to cut ties with the NRA to punish the association’s standing and suppress its gun-promotion advocacy—essentially violating free speech rights.

While the Second Circuit ruled Vullo’s purported actions as permissible government speech and legitimate law enforcement, the Supreme Court’s nine justices said the NRA’s allegations, if true, violated the organization’s First Amendment rights.

The case has been remanded to the Second Circuit, which the Court said “is free to reconsider whether Vullo is entitled to qualified immunity.”

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Justices Neil Gorsuch and Jackson wrote concurring opinions.

“On remand, the parties and lower courts should consider the censorship and retaliation theories independently, mindful of the distinction between government coercion and the ways in which such coercion might (or might not) have violated the NRA’s constitutional rights,” Jackson wrote. “That analysis can and should likewise consider which First Amendment framework best captures the NRA’s allegations in this case.”

The opinion states that on April 19, 2018, Vullo issued letters entitled “Guidance on Risk Management Relating to the NRA and Similar Gun Promotion Organizations.”

In these letters, Vullo encouraged DFS-regulated entities to “continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations”; “review any relationships they have with the NRA or similar gun promotion organizations”; and “take prompt actions to manag[e] these risks and promote public health and safety.”

According to the court, regulators’ alleged actions were not “examples of permissible government speech” and were not “legitimate enforcement action.”

Brent Skorup, a legal fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies, told Newsweek that cases like these—which involve the NRA, free speech and regulation—are always difficult to discern.

“However, there was a general sense by Court watchers the oral arguments went well for the NRA,” he said. “Even the Biden administration, in its brief to the Court, agreed that, if the NRA allegations were true, the New York regulators had gone too far with some of their actions. Nevertheless, I was glad to see a unanimous, pro-free speech decision.”

In terms of Jackson’s concurring opinion, Skorup said the justice is urging a certain test for lower courts to apply in cases such as this that involve government coercion of companies—like insurance companies that are not in the business of speech distribution.

“I disagree the NRA’s arguments are as tenuous as she says, but I agree with her that this is a rare First Amendment case where the government’s actions were not directed against speech distributors and that should affect a court’s analysis in these types of cases,” he added.

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