The Supreme Court on Thursday handed a unanimous victory to the National Rifle Association, the powerful pro-gun organization. Notably, the opinion was written by Justice Sonia Sotomayor, an Obama appointee and one of the court’s few remaining liberal voices.
However, nothing was said about the court’s verdict National Rifle Association v. Vullo Should surprise anyone. The case involved a serious and blatant violation of the First Amendment, and Sotomayor’s name in the opinion drives home the fact that there is really only one fair-minded way to decide this case.
forget it Former New York State Department of Financial Services (DFS) Superintendent Maria Vullo originated two actions against the NRA. One of these actions was perfectly legal, the other was patently unconstitutional.
Legal Investigations “Carry Guard,” an insurance program the NRA offered its members, would pay the legal bills of a customer who shot someone. Carry Guard, which was provided by third-party insurers but promoted by the NRA, violated New York law in two ways. The NRA promoted it without a license and it “insured residents of New York For intentional, reckless and criminally negligent acts with a firearm who injures or kills another.”
For reasons that should be obvious, New York does not allow insurers to offer policies that pay out if the beneficiary commits an intentional criminal act.
As Vulo continued his investigation into the Carry Guard program — eventually levying multimillion-dollar fines on the insurance companies that operated and underwrote Carry Guard — a gunman killed 17 people at a high school in Parkland, Florida. This caused a massive backlash against the NRA within the New York government.
Unfortunately, at least part of New York’s response to the Parkland shooting was unconstitutional.
Vullo issued two “guidance” letters to insurers and financial services firms, encouraging them to “continue to assess and manage their risks, including reputational risks that may arise from their dealings with the NRA or similar gun advocacy organizations,” and “Take quick action to manage[e] This risks and promotes public health and safety“
Notably, Vullo issued these letters while his office was actively seeking millions of dollars worth of fines from insurance companies responsible for the NRA’s Carry Guard program.
Additionally, Vullo allegedly met with an insurance company, Lloyd’s of London, and told Lloyd’s it could “avoid liability” for unrelated insurance law violations “as long as it helps DFS’s campaign against gun groups.”
So Vullo encouraged many insurers to sever ties with the NRA just as he was conducting a major investigation into three companies that do business with the NRA. And he offered to shield a company from additional liability if it took further action against gun companies.
As Sotomayor’s opinion explains, this is not permissible.
Perhaps because the opinion was written by Sotomayor, and not by a more right-wing justice who might be interested in using New York’s mistreatment of the NRA as an excuse to stop legal enforcement actions against gun groups, the decision also includes some language to ensure that the Court’s carry guard investigation remains valid. .
Thus, gun control advocates avoided a catastrophic defeat forget it; This case may end in a more decisive victory for the NRA.
Governments cannot force private companies to sever ties with an advocacy group because the government does not like the group’s views.
Sotomayor’s holding forget it The opinion is straightforward. “Bullo was free to criticize the NRA and pursue recognized violations of New York insurance law,” the justices wrote But, “he could not use his power … to threaten enforcement action against DFS-regulated entities to punish or suppress the NRA’s gun-promoting advocacy.”
Thus, the court drew a clear line between Cary Guard’s legitimate investigation and other efforts to pressure organizations to sever ties with the NRA because New York leaders refused to advocate for the organization’s gun rights.
As Sotomayor writes, this conclusion flows naturally from the Supreme Court ruling Bantam Books vs. Sullivan (1963), in which the agency did not choose to penalize speakers involved in similar efforts by a government agency.
Bantam Books A state agency called the Orwellian “Rhode Island Commission to Encourage Morality in Youth” targets books deemed “offensive for sale, distribution or display to youth under 18 years of age.” The commission sent letters to booksellers asking for their “cooperation” in removing such books, as well as informing these sellers of their “responsibility to recommend prosecution to the Attorney General against those accused of obscenity.”
In at least one case, the commission sent a letter to a book distributor targeting a police officer, who asked what steps the distributor had taken to comply with the letter.
Although neither the letter nor the police officer made explicit threats, such as “remove these books or you will be arrested and face criminal charges,” Bantam Books concluded that the underlying threat was sufficiently clear and held that such coercion violated the First Amendment.
The same logic applies forget it. As Sotomayor explained, “[A]s DFS superintendent, Vulture had direct regulatory and enforcement authority over all insurance companies and financial services institutions doing business in New York.” He had the power to bring civil charges and, according to a DFS investigation into Carrie Garde, “impose significant financial penalties.”
Backed by this authority, Vullo encouraged “DFS-regulated entities to ‘shut down[e] Their arrangement with the NRA,’ including the full legal system.
It is not allowed. As Sotomayor wrote, Vullo is accused of threatening to “use his force against those who refuse to support his campaign to punish the NRA’s pro-gun advocacy.” If those allegations are proven (the case is still in its early stages and has not yet received a full trial), Vullo has violated the First Amendment.
It is worth noting that Sotomayor’s opinion is brief and fairly surgical. It makes clear that Vullo’s unconstitutional actions do not strip the DFS of its authority to authorize valid violations of New York law, including the NRA’s decision to essentially pay murder insurance.
But his opinion also reaffirms one of the most fundamental principles of First Amendment law: that even hateful people have a right to free speech.
