NRA ruling does not clarify the boundaries of official censorship

One might hope for the unanimity of the U.S. Supreme Court National Rifle Association of America v. Vullo provides clarity on two issues of First Amendment jurisprudence: When does government action hostile to the views of a private party become unconstitutional censorship? And what is the evidentiary role of the speech of government officials in establishing unconstitutional intent?

Ultimately, the decision raises as many questions as it answers.

In an opinion supported by all nine justices, Justice Sonia Sotomayor wrote that the NRA’s complaint against Maria Vullo, superintendent of the New York State Department of Financial Services, was a valid First Amendment cause of action and that action could be undertaken. Whether the NRA will ultimately prevail is uncertain as the lawsuit is in its early stages.

Events relevant to the dispute began in 2017 when the DFS began an investigation into an NRA-affiliated insurance program, Carry Guard, that insured against liability for intentional criminal acts – an offering that is illegal in New York. The NRA promoted Carry Guard without a license as an insurance producer, also in violation of New York law.

After the investigation began and following the shootings at Marjory Stoneman Douglas High School in Parkland, Florida, Vullo and others met with executives from insurance companies that did business with the NRA, including Lloyd’s of London. According to the complaint, Vullo and then-Gov. Andrew Cuomo (D-NY) used the threat of adverse regulatory proceedings to force outside companies to break agreements with the NRA over the NRA’s constitutionally protected advocacy in favor of gun rights.

Although the Supreme Court reversed the U.S. Court of Appeals for the Second Circuit, Sotomayor’s opinion speaks approvingly of the lower court’s framework regarding whether a challenged government communication is unconstitutionally coercive. The Second Circuit found relevant “(1) word choice and tone; (2) the existence of a regulatory authority; (3) whether the speech was perceived as a threat; and, perhaps most importantly, (4) whether the speech refers to adverse consequences.”

In this case, Vullo unquestionably had “direct regulatory and enforcement authority over all insurance companies and financial services companies doing business in New York.” The wording of its communications implied that Lloyd’s, for example, could avoid potential law enforcement action by terminating its agreements with pro-gun groups. Lloyd’s responded to her communications in a manner that implied it understood a threat. “In short,” Sotomayor wrote, “the complaint, when considered as a whole, plausibly alleges that Vullo threatened to exercise her power against those who refused to support her campaign to punish the NRA’s gun promotion.”

However, despite the Supreme Court’s unanimous response to the NRA complaint, the scope of the opinion is uncertain. As Judge Ketanji Brown Jackson noted in her concurrence, the case is very different from the 1963 precedent on which it purports to rest: Bantam Books v. Sullivan. In that case, the Supreme Court ruled “that a Rhode Island commission’s efforts to force intermediary book distributors to withdraw certain publications from circulation violated the First Amendment rights of the books’ publishers.” The Vullo the court noted that Rhode Island had effectively established a state-constructed “system of informal censorship.”

However, Vullo’s communications had no direct impact on the spread of speech. As Jackson explained, Vullo would have been no less in violation of the First Amendment if her actions were intended to punish the NRA, rather than censor it. But given that the NRA appears to have acted unlawfully, the question might be asked whether Vullo would have continued its course of action for legitimate law enforcement reasons, even if there was also a desire for revenge.

One might wonder how the court’s analysis would apply if a city’s health department were to suggest that it would be interested in investigating technical violations of the Restaurant Code for restaurants that sell or donate food to student protesters on a local campus . Would such targeting be allowed if there were also neutral reasons to consider these specific restaurants as potential code violators?

Sotomayor’s Opinion Vullo resonates with an anomalous plea she made six years ago Trump vs. Hawaii– a plea supported only by the late Justice Ruth Bader Ginsburg – to invalidate a presidential proclamation imposing entry restrictions on nationals of eight foreign states, six of which are predominantly Muslim. She argued that the proclamation violated the Establishment Clause because it was the product of anti-Muslim animus — as evidenced by candidate and later President Donald Trump’s comments hostile to the faith.

However, in an opinion written by Chief Justice John Roberts, a five-justice majority held that the court should consider the “significance of (Trump’s) statements when reviewing a presidential directive, which is neutral on its face and a matter that falls within the core of executive responsibility. . In doing so, we must take into account not only the statements of a particular president, but also the authority of the presidency itself.”

In Vullodoes the court view the Chief Inspector’s regulatory authority as a factor that makes her more vulnerable to allegations of coercion; in Trump vs. Hawaiithe president’s authority entitled him to a presumption of neutrality. It is assumed that the Vullo The court could have dealt with it Trump vs. Hawaii so recognizable because of the national security context, but the court does not mention the case at all.

It will also be interesting to see how the court addresses the issue of coercion Murthy vs. Missouriwhich focuses on whether the Biden administration unconstitutionally forced social media companies to downplay or remove posts related to the Covid-19 pandemic that are deemed misinformation.

The U.S. Court of Appeals for the Fifth Circuit ruled that the White House and four other federal agencies had effectively created a system of informal censorship on major social media platforms, violating the First Amendment rights of three doctors, a news website and a healthcare activist. and two states. Yet it is not clear that government actors have regulatory powers over social media platforms that they could use to combat disinformation, and the government characterizes the social media platforms’ action as voluntary private “editorialism.”

A Supreme Court decision, which followed the tone of the relevant officials, was coercive and not accompanied by specific threats. This would go considerably further than the decision in Vullo in limiting government initiative to influence the flow of information to the public.

The case is NRA v. Vullo, USA, No. 22-842, 05-30-24.

This article does not necessarily reflect the views of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or their owners.

Author information

Peter M. Shane is a distinguished scholar-in-residence and adjunct professor of law at New York University and professor emeritus at The Ohio State University Moritz College of Law.

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