The Supreme Court on Thursday handed down a unanimous victory to the National Rifle Association, the powerful pro-gun organization. The opinion was notably written by Justice Sonia Sotomayor, an Obama appointee and one of the few remaining liberal voices on the Court.
Yet nothing about the Court’s decision in the case National Rifle Association c. Follow should surprise everyone. The case involved a blatant and direct violation of the First Amendment, and Sotomayor’s name on the opinion underscores the fact that there is really only one fair way to decide this case.
Follow is the result of two actions taken by Maria Vullo, the former superintendent of the New York State Department of Financial Services (DFS), against the NRA. One of these measures was completely legal, the other was clearly unconstitutional.
The legal investigation involved “Carry Guard,” an insurance program the NRA offered its members that would pay the legal fees of a client who shot someone. Carry Guard, supplied by third-party losers but promoted by the NRA, violated New York law in two ways. The NRA promoted it without a license and “insured New York residents for intentional, reckless, and criminally negligent acts committed with a firearm that injured or killed another person.”
For reasons that should be obvious, New York State does not allow auditors to offer insurance policies that compensate if the beneficiary commits an intentional criminal act.
As Vullo continued his investigation into the Carry Guard program – ultimately imposing millions of dollars in fines on the insurance companies that operated and underwrote Carry Guard – a gunman murdered 17 people at a high school in Parkland, Florida. This sparked a widespread backlash against the NRA, including within New York government.
Unfortunately, at least part of New York’s response to the Parkland shooting was unconstitutional.
Vullo issued two “guidance” letters to investors and financial services companies, 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 to “take prompt action.” manage[e] These risks promote public health and safety.
Notably, Vullo issued these letters while his office was actively seeking millions of dollars in fines from the 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 that she could “avoid liability” for unrelated violations of the Insurance Act “as long as she helped the campaign DFS against armed groups”.
Vullo therefore encouraged many losers to sever their ties with the NRA, at the same time as she was conducting a major investigation into three companies that did business with the NRA. And she reportedly offered to shield a company from further liability if it took further action against the gun organization.
As Sotomayor’s opinion explains, this is not permitted.
Perhaps because the opinion is written by Sotomayor, not a more right-wing judge who might be eager to use New York State’s clumsy treatment of the NRA as an excuse to end legitimate enforcement actions against the armed group, the Court’s opinion The decision also includes clarifications ensuring that the investigation into Carry Guard remains valid.
Thus, proponents of gun regulation avoided a crushing defeat by Follow; This case could have resulted in a much more radical victory for the NRA.
The government cannot force private companies to cut ties with an advocacy group because the government does not like that group’s views.
Sotomayor’s outfit Follow the opinion is simple. “Vullo was free to criticize the NRA and pursue admitted violations of New York insurance law,” the judge wrote. But “she could not exercise her authority…to threaten enforcement action against DFS-regulated entities to punish or suppress the NRA’s pro-gun advocacy.”
Thus, the Court draws a clear line between legitimate investigations into Carry Guard and other efforts to pressure companies to cut ties with the NRA because New York leaders disapproved of gun rights advocacy fire of the organization.
As Sotomayor writes, this conclusion follows naturally from the Supreme Court’s decision in Bantam Books c. Sullivan (1963), which involved a similar effort by a government agency to punish speakers the agency did not like.
Bantam books concerned the “Rhode Island Commission to Encourage Morality Among Youth,” a state agency that targeted books it deemed “objectionable for sale, distribution, or exhibition to youth under 18 years of age.” The commission sent letters to booksellers asking for their “cooperation” in removing these books, while also informing these sellers of their “duty to recommend to the Attorney General that purveyors of obscenities be prosecuted.”
In at least one case, the commission also sent a police officer to a book distributor it was targeting, who asked what steps the distributor had taken to comply with the letter.
Although neither the letter nor the police officer contained explicit threats, such as “remove these books or you will be arrested and face criminal charges,” Bantam books He concluded that the implied threat was sufficiently clear and held that this type of coercion violated the First Amendment.
The same logic applies in Follow. As Sotomayor explains, “[A]As superintendent of the DFS, Vullo had direct regulatory and enforcement authority over all insurance companies and financial services institutions doing business in New York. She had the power to file civil charges and, as the DFS investigation into Carry Guard shows, “impose significant monetary penalties.”
Supported by this authority, Vullo encouraged “entities regulated by the DFS to “cease”[e] their arrangements with the NRA,’ including arrangements that were entirely legal.
It is not allowed. As Sotomayor writes, Vullo is accused of threatening “to wield her power against those who refuse to aid her campaign to punish the NRA’s pro-gun advocacy.” If these allegations are proven (the case is still in its early stages and has not yet gone to a full trial), Vullo has violated the First Amendment.
It should be noted that Sotomayor’s opinion is brief and quite surgical. It makes clear that Vullo’s unconstitutional actions do not strip the DFS of its authority to sanction legitimate violations of New York law, including the NRA’s decision to essentially offer insurance against murder.
But his opinion also reaffirms one of the most fundamental principles of First Amendment law: Even despicable people have the right to free speech.