Oral Argument: National Rifle Association of America v. Vullo | Case No. 22-842 | Date Argued: 3/18/24 | Date Decided: 5/30/24

Link to Docket: Here.

Background:

Bantam Books v. Sullivan held that a state commission with no formal regulatory power violated the First Amendment when it "deliberately set out to achieve the suppression of publications" through "informal sanctions," including the "threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation." 372 U.S. 58, 66-67 (1963). Respondent here, wielding enormous regulatory power as the head of New York's Department of Financial Services ("DFS"), applied similar pressure tactics-including backchannel threats, ominous guidance letters, and selective enforcement of regulatory infractions-to induce banks and insurance companies to avoid doing business with Petitioner, a gun rights advocacy group. App. 199-200 ¶ 21. Respondent targeted Petitioner explicitly based on its Second Amendment advocacy, which DFS's official regulatory guidance deemed a "reputational risk" to any financial institution serving the NRA. Id. at 199, n.16. The Second Circuit held such conduct permissible as a matter of law, reasoning that "this age of enhanced corporate social responsibility" justifies regulatory concern about "general backlash" against a customer's political speech. Id. at 29-30.

Question Presented: Does the First Amendment allow a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government's own hostility to the speaker's viewpoint or (b) a perceived "general backlash" against the speaker's advocacy?

Holding: The NRA plausibly alleged that former superintendent of the New York Department of Financial Services Maria Vullo violated the First Amendment by coercing regulated entities to terminate their business relationships with the NRA in order to punish or suppress the NRA's gun-promotion advocacy.

Result: Vacated and remanded.

Voting Breakdown: 9-0. Justice Sotomayor delivered the opinion for a unanimous Court. Justice Gorsuch and Justice Jackson each filed a concurring opinion.

Link to Opinion: Here.

Oral Advocates:

• For Petitioner: David D. Cole, Washington, D.C.
• For United States, as Amicus Curiae: Ephraim McDowell, Assistant to the Solicitor General, Department of Justice, Washington, D.C.
• For Respondent: Neal K. Katyal, Washington, D.C.