We say this even though the winner in the case was the NRA, an organization synonymous with constitutionally dubious and socially harmful resistance to gun safety legislation. And yet it is precisely because the NRA’s position on the Second Amendment is repugnant to so many that it was important for the court to protect its rights under the First.
The case arose out of efforts by officials of deep-blue New York state to put indirect pressure on the NRA in the wake of the 2018 Parkland school shooting. Maria Vullo, the former superintendent of the New York Department of Financial Services, had oversight authority over financial service firms doing business in New York. And she allegedly invoked that power to get some of these firms to shun the NRA. Specifically, she allegedly notified executives at Lloyd’s of London that she would be less likely to pursue regulatory action against them if they severed ties with the NRA.
Ms. Vullo issued “guidance” letters that urged companies to “continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations” and to “take prompt actions to manage these risks and promote public health and safety.” She sent out a joint news release with then-Gov. Andrew M. Cuomo (D) urging companies to stop doing business with the NRA. Multiple insurance companies capitulated to this pressure campaign.
The obvious problem is the precedent this could set not only for other unpopular organizations in New York but also for organizations that are as unpopular in red states as the NRA is in blue ones. Think of, say, how Planned Parenthood could face similar tactics in Louisiana. This is why David Cole, national legal director of the American Civil Liberties Union, defended the conservative NRA before the high court, in the finest free-speech tradition of that generally liberal-leaning organization. It is also why other free-speech groups, such as the Foundation for Individual Rights in Education, supported the NRA. Though the case is not clearly related to campus speech issues, FIRE saw it as a challenge to an informal but real coercive attempt to limit disfavored speech, similar to pressure administrators sometimes exert in college campuses.
To be sure, state officials such as Ms. Vullo have every right to punish actual legal infractions by any companies that do business with NRA members, as Justice Sonia Sotomayor, writing for the court, explained. And they have every right to speak out against gun violence and the NRA. What they cannot do, however, “is use the power of the State to punish or suppress disfavored expression,” Justice Sotomayor wrote. “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.”
The Supreme Court’s decision reinforces an important message that it had previously sent more than 60 years ago in the 1963 case of Bantam Books v. Sullivan. In that case, the justices said it was unconstitutional for the Rhode Island Commission to Encourage Morality in Youth — yes, there was such an institution back then — to warn book distributors that they could face criminal penalties if they distributed certain “objectionable” books.
Ms. Vullo denies that she threatened, coerced or retaliated against anyone. Her lawyer, Neal Katyal, argues that she merely enforced the law and that the letters she sent are “routine and important tools.” He expressed confidence that Ms. Vullo will be protected by “qualified immunity” when the U.S. Court of Appeals for the 2nd Circuit, based in New York, reconsiders the case, as the Supreme Court instructed it to do. Qualified immunity is the doctrine that shields government officials from lawsuits if the unlawfulness of their alleged conduct was not “clearly established” by prior precedent.
The lower court might or might not accept that particular argument. What matters for the future, though, is what a unanimous court did just establish, clearly: The Constitution does not permit state regulators to strong-arm companies into boycotting controversial speakers.
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