NDNY First Amendment Case to Be Heard by the Supreme Court

By Colin Sommers
Syracuse University College of Law ‘23

A case that started in the Northern District of New York is now at the Supreme Court. On November 3, 2023, the Supreme Court granted certiorari in National Rifle Association v. Vullo, a case involving qualified immunity and First Amendment issues.¹

According to its complaint, the NRA challenged conduct that began in 2017, when Maria T. Vullo, then the Superintendent of the New York State Department of Financial Services (DFS), ordered DFS to begin investigating three insurance companies that had partnered with the NRA to provide coverage for losses stemming from firearm use, including intentional firearm use. In February 2018, Vullo held several meetings with executives of institutions within her regulatory purview. During those meetings, according to the NRA, Vullo issued back-channel threats in an effort to get those institutions to terminate their NRA-affiliated insurance programs.

A few months later, in April 2018, after a school shooting in Parkland, Florida, Vullo issued regulatory guidance and a joint press release with then-Gov. Andrew M. Cuomo that stated, in part, that companies doing business in New York should consider risks, including reputational risks, when doing business with the NRA and other “gun promotion organizations.” Vullo also called on banks and insurance companies to discontinue their relationship with the NRA.

In the wake of these statements by Vullo, several businesses cut ties with the NRA. Moreover, in May 2018, DFS announced agreements with two insurance companies, Chubb and Lockton, in which the companies admitted their NRA-affiliated programs violated New York law and agreed to pay fines. In December 2018, another firm, Lloyd’s of London, entered into a similar agreement with DFS. All the companies ended their programs with the NRA. According to the NRA, these firms privately stated that the decision to sever ties arose from a fear of regulatory hostility from DFS and the possibility of losing licenses to conduct business in New York.

In the NDNY, the NRA brought suit against Vullo and other New York State government officials. The NRA alleged, in pertinent part, that Vullo had violated the First Amendment when she used her regulatory power to engage in coercion and intimidation in an effort to establish a system of informal censorship to suppress and retaliate against NRA political speech. Vullo moved to dismiss the First Amendment claim, arguing that the court should grant her qualified immunity. However, the Hon. Thomas J. McAvoy, Senior United States District Judge, held that Vullo was not shielded by qualified immunity. The court held, among other things, that the law was clearly established at the time of Vullo’s actions: First Amendment rights could be violated by the effect of governmental action that – although not a direct prohibition against speech – “can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official’s request.” Taking the allegations in the complaint as true, the court found that Vullo’s actions could be reasonably construed as intimating some form of regulatory action if the firms continued their NRA insurance programs; thus, the court denied her motion.

Vullo filed an interlocutory appeal, and the Second Circuit reversed and remanded the district court’s decision. The Circuit held that Vullo was entitled to qualified immunity for two reasons. First, the regulatory guidance, press release and other alleged conduct could not reasonably be construed as unconstitutionally threatening or coercive. The Second Circuit reasoned that there was a “general backlash” against gun promotion groups, especially after the Parkland shooting, and such a backlash can affect New York companies and markets in this “age of enhanced corporate social responsibility.” Moreover, there were no alleged facts that plausibly suggested Vullo coerced Chubb, Lockton, or Lloyd’s to cease doing business with the NRA: the companies could have continued doing business with the NRA provided their activities did not violate New York law. Second, in any event, the Second Circuit held that the law was not clearly established at the time Vullo acted. On that basis, the Circuit found that Vullo was entitled to qualified immunity, and it remanded the case with directions for the district court to enter judgment for Vullo.

The NRA successfully petitioned the Supreme Court for a writ of certiorari, but the Court limited its writ to only the first question in the NRA’s brief: “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?” The NRA’s petition contended that the Second Circuit’s decision departed from the Court’s precedent in Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), a case that held that a state commission without formal regulatory powers violated the First Amendment when it “deliberately set out” to suppress certain publications through informal sanctions and other coercive measures. Furthermore, the petition contended that that the Second Circuit’s decision created a circuit split with the Seventh Circuit’s 2015 decision in Backpage.com, LLC v. Dart, 807 F.3d 229 (7th Cir. 2015), which held that a county sheriff violated the First Amendment when he wrote a letter to credit card companies urging them to cease processing payments on Backpage.com, even though he had no formal regulatory power over the companies.

The NRA’s brief is due January 9, 2024, with Vullo’s brief to follow by February 20, 2024. The parties hope for the case to be heard during the Court’s March 2024 sitting.²

This is the third NDNY case in the last 5 years to reach the Supreme Court. In New York State Rifle & Pistol Ass’n Inc. v. Bruen (2022), the Supreme Court held that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside of the home. In McDonough v. Smith (2019), the Supreme Court held that the statute of limitations on a 42 U.S.C. § 1983 fabricated-evidence claim begins to run when the criminal proceeding against the plaintiff terminates in his favor.