BREAKING: Unanimous SCOTUS Rules New York Likely Infringed on NRA's First Amendment Rights

Erin Schaff/The New York Times via AP, Pool

Surprise, surprise, surprise! Not only did the Supreme Court resuscitate the National Rifle Association's lawsuit against the state of New York, they did so unanimously. 

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And guess who wrote the opinion that directed the lower court to take up the NRA's First Amendment claim in NRA v Vullo? Justice Sonia Sotomayor, last seen lamenting her Kleenex consumption in a conservative-dominated SCOTUS:

Six decades ago, this Court held that a government entity’s “threat of invoking legal sanctions and other means of coercion” against a third party “to achieve the suppression” of disfavored speech violates the First Amendment. Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 67 (1963). Today, the Court reaffirms what it said then: Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors. Petitioner National Rifle Association (NRA) plausibly alleges that respondent Maria Vullo did just that. As superintendent of the New York Department of Financial Services, Vullo allegedly pressured regulated entities to help her stifle the NRA’s pro-gun advocacy by threatening enforcement actions against those entities that refused to disassociate from the NRA and other gun-promotion advocacy groups. Those allegations, if true, state a First Amendment claim.

As Sotomayor lays out the claim, it is clear that Vullo intended to use her power and jurisdiction to punish the NRA for its speech, specifically in opposition to gun-control proposals after the Parkland shooting. Sotomayor's narrative makes a pretty good case for tortious interference too, but Sotomayor necessarily sticks to the speech issues:

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Around that time, Vullo also began to meet with executives at the insurance companies doing business with the NRA. On February 27, Vullo met with senior executives at Lloyd’s. There, speaking on behalf of DFS and then-Governor Andrew Cuomo, Vullo “presented [their] views on gun control and their desire to leverage their powers to combat the availability of firearms, including specifically by weakening the NRA.” Id., at 221, ¶67. She also “discussed an array of technical regulatory infractions plaguing the affinityinsurance marketplace” in New York. Id., at 199, ¶21. Vullo told the Lloyd’s executives “that DFS was less interested in pursuing the[se] infractions” unrelated to any NRA business “so long as Lloyd’s ceased providing insurance to gun groups, especially the NRA.” Id., at 199–200, ¶21; accord, id., at 223, ¶69 (alleging that Vullo made it clear to Lloyd’s that it “could avoid liability for infractions relating to other, similarly situated insurance policies, so long as it aided DFS’s campaign against gun groups”).1 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,” and “in exchange, DFS would focus its forthcoming affinity-insurance enforcement action solely on those syndicates which served the NRA, and ignore other syndicates writing similar policies.” Ibid., ¶69.

On April 19, 2018, Vullo issued two virtually identical guidance letters on DFS letterhead entitled, “Guidance on Risk Management Relating to the NRA and Similar Gun Promotion Organizations.” Id., at 246–251 (Guidance Letters). Vullo sent one of the letters to insurance companies and the other to financial services institutions. In the letters, Vullo pointed to the “social backlash” against the NRA and other groups “that promote guns that lead to senseless violence” following “several recent horrific shootings, including in Parkland, Florida.” Id., at 246, 249. Vullo then cited recent instances of businesses severing their ties with the NRA as examples of companies “fulfilling their corporate social responsibility.” Id., at 247, 250.

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Clearly, if the NRA can establish these facts at trial, it shows Vullo attempting to curtail the NRA's ability to speak and lobby on gun-related issues. It would demonstrate an abuse of power that seems breathtaking in its scope, too, as well as having quite a bit of success. Sotomayor writes that this went well beyond the right of a government worker to express her own opinion, and crossed over into a constitutional violation of the NRA's rights by abusing her authority to damage them on the basis of political viewpoints. 

Vullo's nice business ya got there strategy makes the violation very clear indeed: 

Against this backdrop, consider Vullo’s communications with the DFS-regulated entities, particularly with Lloyd’s. According to the NRA, Vullo brought a variety of insurancelaw violations to the Lloyd’s executives’ attention during a private meeting in February 2018. The violations included technical infractions that allegedly plagued the affinity insurance market in New York and that were unrelated to any NRA business. App. to Pet. for Cert. 199–200, Complaint ¶21; accord, id., at 207–208, ¶¶36–37; id., at 223, ¶69. Vullo allegedly said she would be “less interested in pursuing the[se] infractions . . . so long as Lloyd’s ceased providing insurance to gun groups, especially the NRA.” Id., at 199–200, ¶21. Vullo therefore wanted Lloyd’s to disassociate from all gun groups, although there was no indication that such groups had unlawful insurance policies similar to the NRA’s. Vullo also told the Lloyd’s executives she would “focus” her enforcement actions “solely” on the syndicates with ties to the NRA, “and ignore other syndicates writing similar policies.” Id., at 223, ¶69. The message was therefore loud and clear: Lloyd’s “could avoid liability for [unrelated] infractions” if it “aided DFS’s campaign against gun groups” by terminating its business relationships with them. Ibid. 

As alleged, Vullo’s communications with Lloyd’s can be reasonably understood as a threat or as an inducement. Either of those can be coercive. As Vullo concedes, the “threat need not be explicit,” Brief for Respondent 47, and as the Solicitor General explains, “[t]he Constitution does not distinguish between ‘comply or I’ll prosecute’ and ‘comply and I’ll look the other way,’” Brief for United States as Amicus Curiae 18, n. 7. So, whether analyzed as a threat or as an inducement, the conclusion is the same: Vullo allegedly coerced Lloyd’s by saying she would ignore unrelated infractions and focus her enforcement efforts on NRA-related business alone, if Lloyd’s ceased underwriting NRA policies and disassociated from gun-promotion groups.

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In other words, assuming the NRA can establish all these as facts at trial, Vullo went the full Monty Python:

This looks very straightforward to me, so perhaps this ruling shouldn't surprise. The unanimity does, though, because the Left has gone all-in on lawfare against their political opponents -- and not just in the Trump trial, either. They have leveraged the bureaucratic state with nearly every angle possible to do precisely what Vullo did a little too explicitly -- use government power to silence opposition, kneecap disfavored constituencies, and punish anyone who gets in their way. 

This is precisely what they intend to do with their "misinformation" policing too. They have built a vast censorship complex with bureaucrats at the State Department, HHS, and Justice, all using regulatory authority to pressure Big Tech platforms to shut down debate and dissent with the threat of further regulatory control. This is precisely why we push so hard on VIP/VIP Gold membership, because the Left is never going to let go of that power unless we band together to expose and fight it. Become a HotAir VIP member today and use promo code CENSORSHIP to receive a 50% discount on your membership.

A unanimous slapdown at SCOTUS certainly helps. But it doesn't put an end to it, not by a very long shot. 

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My friend and VIP Gold chat partner Cam Edwards breaks it all down in his latest Cam & Company video:



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John Stossel 1:00 PM | June 15, 2024
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