SUPREME COURT PROHIBITS GOVERNMENT
SUPPRESSION OF PRO-SECOND AMENDMENT SPEECH
by
Prof. Anthony Michael Sabino
In National Rifle Association of America v. Vullo, 602 U.S. ___ (No. 22-842) (May 30, 2024) (“Vullo”), a unanimous United States Supreme Court authorized the National Rifle Association to proceed with its First Amendment lawsuit against New York State’s top financial industry watchdog. While Vullo is strictly a Freedom of Speech case, ostensibly unrelated to the Right to Keep and Bear Arms, it nonetheless demonstrates that pro-Second Amendment advocacy irrefutably falls under the aegis of constitutionally protected speech.
The titular complainant needs no introduction. As for Vullo, she superintended the New York State Department of Financial Services (“DFS”), the agency holding direct regulatory and enforcement authority over all insurance companies and banks doing business in the Empire State. While leading DFS, she purportedly threatened regulated entities with prosecution unless they disassociated themselves from the NRA and other Second Amendment proponents. This coercion was alleged to be both subtle and overt, the latter exemplified in the stark invective of former New York Governor Andrew Cuomo’s tweet “urg[ing] companies in New York State” to sever ties with the “extremist” NRA. The vaunted Second Circuit (the same tribunal that was overruled in NYSRPA v. Bruen) dismissed the pro-Second Amendment group’s claims, characterizing Vullo’s actions as nothing more than “permissible government speech.”
Speaking as one, the Justices reversed the court below, and restored the case to the docket. Writing for the high Court, Justice Sotomayor powerfully reaffirmed the bedrock precept that “[g]overnment officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.” Certainly, officeholders may speak their mind, and even criticize beliefs they disagree with. “What [they] cannot do, however, is use the power of the State to punish or suppress disfavored expression.”
Vullo’s paramount ruling was that “the First Amendment prohibits government officials from relying on the ‘threat of invoking legal sanctions and other means of coercion…to achieve the suppression’ of disfavored speech.” The supreme bench was gravely concerned that the DFS chief sought to suffocate Free Speech by “us[ing] the power of her office to target gun promotion by going after the NRA’s business partners.” The First Amendment, opined Justice Sotomayor, guarantees that officials may never punish or stifle Free Speech by threatening adverse regulatory action against third parties transacting business with disliked speakers. Such indirect assaults are forbidden by the maxim that government “cannot coerce a private party to punish or suppress disfavored speech on [its] behalf.”
In conclusion, recall that Vullo concerns the First Amendment, not the Second, and no one can predict what will happen to the NRA’s Free Speech claims, once this proceeding returns to the lower courts.
Nevertheless, it is the Supreme Court’s final edict which is most encouraging to supporters of the Right to Keep and Bear Arms; “[T]he First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries.” Vullo thereby places pro-Second Amendment advocacy squarely within the realm of Free Speech, safe from direct or even indirect government censorship.
FINAL Vullo ANJRPC v.1
AMS/dal