Government coercion limited by First Amendment

Gun Rights

A new Supreme Court case, National Rifle Association of America (NRA) v. Vullo, May 30, 2024, prohibits the use by government of coercion of third parties to inhibit the freedom of speech by an entity with which the government disagrees. Here, the NRA was pro-gun; the government of New York led by Andrew Cuomo was in favor of gun control. Maria Vullo, head of a powerful governmental agency, arguably coerced third-party insurance companies to punish and suppress the NRA’s free speech rights. 

The case was made up by strange bedfellows. (David French, New York Times, June 2, 2024). The liberal American Civil Liberties Union represented the conservative NRA. The liberal Justice Sonia Sotomayor wrote a unanimous opinion, including the conservatives and liberals on the court, in support of the NRA. The Republicans are on notice that revenge against the Democrats cannot include coercion or like behavior. The concurring Justice Ketanji Brown Jackson added censorship and retaliation to coercion. Democratic government should have the free expression of ideas without behind closed doors coercive deals.  

Vullo was superintendent of the New York Department of Financial Services (DFS). This is a very powerful agency with power over insurance and other financial companies in the private sector. It could initiate investigations and civil enforcement actions and could refer possible criminal violations to the state’s attorney general. 

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Vullo began communicating with insurance companies doing business with the NRA. As a result, one company, Lockton, severed ties with the NRA for fear of losing its license and refused to renew coverage at any price. She also met with senior executives at Lloyd’s. She presented her and Gov. Cuomo’s views on gun control and their desire to weaken the NRA with its pro-gun policy. She talked about several infractions in the insurance business and how they would overlook those infractions for companies not doing business with the NRA. The message was “loud and clear” that Lloyd’s could avoid liability if it terminated its relationship with NRA and other gun groups. There were several other coercive actions cited by the court.  

Government agents have the right to speak in favor of a position and against other positions. They can try to persuade. But coercion crosses the line into illegal behavior. This is the main distinction of the case: persuasion or coercion. Sotomayor states: “Ultimately, the critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries.” 

Democracy requires freedom to speak on policy issues without coercion. Sotomayor writes: “…viewpoint discrimination is uniquely harmful to a free and democratic society. The Clause prohibits government entities and actors from ‘abridging the freedom of speech.’” 

The case came to the court on a motion by Vullo to dismiss. Thus, the court here did not decide the case but only whether the plaintiff NRA, viewing the facts most favorably to it as the nonmoving party, had a First Amendment right to go forward. The holding was that “…the NRA plausibly alleged that Vullo violated the First Amendment by coercing DFS-regulated entities to terminate their business relationships with the NRA in order to punish or suppress the NRA’s advocacy.” 

Jackson concurred stating that causation should be analyzed in the relationship between the coercion here and the harm done to First Amendment rights. She also said that the concepts of censorship and retaliation should be considered as well as coercion as illegal government actions. 

Eugene Volokh, one of the NRA’s attorneys, has written: “Yet where, as here, a government official makes coercive threats in a private meeting behind closed doors, the ‘ballot box’ is an essentially poor control on that official’s authority.” (The Volokh Conspiracy Daily Update, May 31, 2024).  

In this case, both conservatives and liberals rallied to support the free expression of ideas in the policy debate against illegal government intrusion. Persuasion is good; coercion, censorship and retaliation undermine the free democratic order and are unconstitutional. Let the Constitution be enforced. 

James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

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