By David French
Last Thursday, Sonia Sotomayor helped protect the country from Donald Trump, and she did it in an unexpected way — by defending the National Rifle Association.
Let me explain.
Attempts to target the free speech of political opponents are often the first sign of a decline into authoritarianism. As Frederick Douglass wrote in 1860, after an angry mob shut down an abolitionist event in Boston, “No right was deemed by the fathers of the Government more sacred than the right of speech.”
“Liberty,” he went on, “is meaningless where the right to utter one’s thoughts and opinions has ceased to exist. That, of all rights, is the dread of tyrants. It is the right which they first of all strike down.”
That’s exactly right, and that’s why Sotomayor’s opinion for a unanimous Supreme Court upholding the free speech rights of the NRA against a hostile attack from a Democratic official in New York has ramifications well beyond New York politics and well beyond the battle over gun rights. By upholding the free speech rights of the NRA, the Supreme Court reinforced the constitutional wall of protection against vengeful government leaders, including Trump.
Here’s what happened. In 2017, Maria Vullo, who was then the superintendent of the New York state Department of Financial Services, began investigating the NRA Carry Guard insurance program. As the court’s opinion explains, Carry Guard was an insurance affinity program in which the NRA offered insurance that “covered personal-injury and criminal-defense costs related to licensed firearm use” and even “insured New York residents for intentional, reckless and criminally negligent acts with a firearm that injured or killed another person.”
Under the affinity program, the NRA would offer the insurance as a member benefit and various insurance companies, including Chubb Limited and Lloyd’s of London, would underwrite the insurance and the NRA would take a cut of the premium payments.
This investigation was proper. It found that Carry Guard violated New York law by insuring intentional criminal acts and that the NRA violated the law by promoting Carry Guard without an insurance producer license. So far, so good. The investigation was within the jurisdiction of the Department of Financial Services, and there was considerable evidence that the NRA broke New York law.
During the investigation, however, a gunman murdered 17 students, teachers and other staff members at Marjory Stoneman Douglas High School in Parkland, Florida. Amid the public grief and outrage, Vullo escalated her attacks on the NRA. In a meeting with Lloyd’s, the NRA claims, Vullo told Lloyd’s that she would be “less interested in pursuing” potential legal infractions committed by Lloyd’s in other areas of its business “so long as Lloyd’s ceased providing insurance to gun groups, especially the NRA.”
As Sotomayor wrote in her opinion, “Vullo and Lloyd’s struck a deal: Lloyd’s ‘would instruct its syndicates to cease underwriting firearm-related policies and would scale back its NRA-related business.’ ” In exchange, the state would focus its investigation of insurance-affinity programs “solely on those syndicates which served the NRA, and ignore other syndicates writing similar policies.”
Vullo also published two guidance letters on department letterhead, sending one to financial institutions and the other to insurance companies. In the letter, she applauded businesses that severed ties with the NRA “as examples of companies ‘fulfilling their corporate social responsibility.’ ”
The NRA sued Vullo, claiming that her actions were coercive and aimed at the NRA because of its political stance in support of gun rights. Vullo claimed that her actions weren’t coercive at all: She was merely trying to persuade companies to stop doing business with the NRA. She claimed that the government speech doctrine — which permits government officials to express their own points of view — gave her the right to condemn the NRA, and that if companies responded to that condemnation voluntarily, then she had merely convinced them to do the right thing.
But where is the line between government persuasion and government coercion? If the government offers a deal that it will refuse to enforce its own rules so long as you comply with its demands, is that really persuasion? Sotomayor and the rest of the court provided the answer: The government violates free speech rights by coercing third parties when it engages in conduct “that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress speech.”
Sotomayor’s opinion doesn’t win the case for the NRA. It merely gives the gun rights organization the opportunity to continue its case in the lower courts. It still has to prove its claims against Vullo. But the case is vitally important nonetheless.
In Sotomayor’s words, “At the heart of the First Amendment’s Free Speech Clause is the recognition that viewpoint discrimination is uniquely harmful to a free and democratic society.” When the government can pick sides in an ideological debate and wield its power to suppress opposing views, then you’ve laid the foundation for authoritarianism. If free speech is the “dread of tyrants,” then censorship is one of the tyrant’s greatest weapons.
Civil liberties cases can make for strange bedfellows. This one was brought by one of the most powerful conservative organizations in the country, but it was represented by the American Civil Liberties Union, a far more progressive organization, and Sotomayor’s unanimous opinion reflected the will of the court, from right to left.
That’s because censorship is a universal temptation. In this case it came from Democratic officials, but we know that MAGA is possessed by the will to power. As The Washington Post reported last November, “Donald Trump and his allies have begun mapping out specific plans for using the federal government to punish critics and opponents should he win a second term.”
We’ve seen the populist right conduct campaigns of censorship against books, ideas and corporations it despises. The new nationalist conservatism, a movement that specifically rejects the libertarianism of the Ronald Reagan right, seeks to wield the power of the state for “the rewarding of good and the punishing of evil.”
The best way to defend America against authoritarianism is to defeat wannabe dictators at the ballot box. But even when the people fail, the Constitution can still prevail — so long as courts are willing to defend liberty for all.