By Connor Catalano
Florida State Univ. College of Law, J.D. Expected May 2026
On May 30, 2024, the Supreme Court released an opinion that helped draw the line between permissible government regulatory advice and impermissible coercion. NRA v. Vullo, 144 S. Ct. 1316 (2024).
The case, originating in the Northern District of New York, was brought by the National Rifle Association (“NRA”) against Maria T. Vullo (“Vullo”), the former Superintendent of the New York State Department of Financial Services (“DFS”). Generally, the NRA claimed that a Vullo-led campaign against it (involving private meetings, press release statements, and official guidance letters) unduly coerced insurance underwriters of the NRA to cut lawful ties with it in violation of the First Amendment. Although the Second Circuit found that the NRA had failed to state a First Amendment claim, the Supreme Court disagreed, finding that the NRA had done so.
Factual Allegations:
For the purposes of deciding whether the NRA had stated a claim, the following facts were assumed to be true. In October 2017, the DFS opened an investigation into three insurance underwriting companies of the NRA: Lockton, Chubb, and Lloyd’s of London (“Lloyd’s”). These companies underwrote the Carry Guard program offered by the NRA to its members, or other similar affinity insurances. The Carry Guard program offered insurance for losses from the use of licensed firearms, even in situations where a gun owner killed or injured someone or engaged in other criminal acts.
Following the school shooting in Parkland, Florida, public backlash erupted against the NRA and other gun-advocacy groups. Vullo responded promptly, convening private meetings in February 2018 with Lloyd’s to discuss its relationship with the NRA.
On April 19, 2018, Vullo issued industry letters entitled “Guidance on Risk Management Relating to the NRA” and “Similar Gun Promotion Organizations,” addressed to 13 DFS-regulated insurance companies and financial institutions. The letters explained the “social backlash” against the NRA and warned of potential “reputational risks” of working with these organizations. The same day, Vullo and then-Governor Cuomo issued a joint press release announcing the Guidance Letters. In the release, Vullo proclaimed that the “DFS urges all insurance companies . . . to join the companies that have already discontinued their arrangements with the NRA.”
In May 2018, the DFS investigation revealed that all three companies were violating New York law by their association with Carry Guard insurance. Lockton and Chubb entered into consent orders with the DFS. Vullo publicly announced these agreements, emphasizing the multi-million-dollar fines and the companies’ discontinuation of ties with the NRA. In the following two weeks, Lloyd’s terminated all insurance programs associated with the NRA.
Procedural History:
After losing its insurance underwriters, the NRA filed suit in the Northern District of New York. The NRA alleged that Vullo suppressed the NRA’s speech and did so by indiscriminately persecuting insurance partners of the NRA.
Senior United States District Judge Thomas J. McAvoy granted Vullo’s motion to dismiss the NRA’s Fourteenth Amendment discrimination claim, but denied Vullo’s motion to dismiss the NRA’s First Amendment suppression-of-speech claim. Judge McAvoy also dismissed claims that the NRA had filed against Governor Cuomo and DFS. NRA of Am. v. Cuomo, 525 F. Supp. 3d 382 (N.D.N.Y. 2021). Vullo appealed the First Amendment ruling to the Second Circuit Court of Appeals.
On appeal, NRA of Am. v. Vullo, 49 F.4th 700 (2d Cir. 2022), the Second Circuit held that Vullo was entitled to qualified immunity. Judge Denny Chin of the Second Circuit held that, even assuming the NRA sufficiently pleaded that Vullo engaged in unconstitutionally threatening or coercive conduct, Vullo was nonetheless entitled to qualified immunity because the law was not clearly established.
The NRA successfully petitioned the Supreme Court for a writ of certiorari regarding the First Amendment claim. The question, as framed for the Court by the parties, was whether the First Amendment allows 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 hostility to the speaker’s viewpoint or (b) a perceived “general backlash” against the speaker’s advocacy.
NRA’s Argument on Appeal:
The NRA’s primary argument on appeal was that “Vullo’s campaign was expressly predicated on the NRA’s political views and her actions swept far beyond remediating any infractions that plagued Carry Guard.” The NRA argued that the case fit firmly within the scope of First Amendment claims, and that Vullo’s actions unduly coerced the NRA’s insurance partners.
With regard to its First Amendment claim, the NRA argued that there existed viewpoint discrimination. The NRA argued that the First Amendment protects speakers not just from formal bans, but from varied forms of governmental action. Indirect and informal campaigns to penalize speech raise heightened First Amendment concerns because of the status of political activist groups. These associations depend on the support of third parties, and private parties often have little if any incentive to protect a particular disfavored speaker.
In support of its coercion argument, the NRA cited Bantam Books v. Sullivan, 372 U.S. 58 (1963), as providing the governing test. There, a state agency, the Rhode Island Commission to Encourage Morality in Youth, waged a pressure campaign against booksellers to censor books that undermined “youthful morals.” The Supreme Court determined that the line between permissible speech and impermissible coercion depends on whether a reasonable recipient would understand the government’s actions as a threat. Bantam Books establishes a factor-based test to identify coercion or inducement: (1) the authority of the government speaker over those she is addressing; (2) the content and purpose of the communications; and (3) the effect of the government’s conduct on its target audience. The NRA argued that all three factors favor coercion.
Vullo’s Arguments on Appeal:
Vullo disputed that her actions went beyond that of a government regulator in her position. She initially argued, as a jurisdictional point, that the NRA lacks standing because the existing qualified immunity finding of the Second Circuit deprives the NRA of “any effectual relief.” Vullo then argued that the NRA’s First Amendment claim suffered from four defects making it unnecessary to address the question of coercion.
First, Vullo pointed to the discretion given to the head of the DFS, aside from the court’s protection. Vullo argued that, at the time, she had absolute immunity from claims arising from her discretion over whom to sanction or penalize.
Second, Vullo argued that her actions were taken to prevent further unlawful conduct, not to retaliate against speech. She argued that concerns over Carry Guard insurance, which provided coverage for intentional acts and criminal defense costs, permeated all of her actions.
Third, Vullo argued that regulating third parties’ conduct is not the same as retaliating against speech. She argued that, in Bantam Books, the government censored quintessential speech expressions, not insurance companies.
Lastly, Vullo relied on the precedent outlined in Nieves v. Bartlett, 587 U.S. 391 (2019), stating that the NRA was asserting a retaliation claim. She argued that, to prevail on a retaliation claim, a plaintiff must show the adverse action against the plaintiff would not have been taken absent the retaliatory motive.
Oral Argument at the Supreme Court:
On March 18, 2024, the Supreme Court heard oral argument. David D. Cole, legal director of the ACLU, litigated for the NRA, and Neal Katyal, former Acting Solicitor General of the United States, litigated for Vullo.
Justice Thomas began by questioning the attenuated nature of the NRA’s claim, asking, “What speech are you alleging was suppressed here?” Cole explained the speech suppressed is the NRA’s message as a whole – “promoting guns and advocating for guns’ rights.” Cole then addressed the causation issue by an analogy. “If Vullo imposed a one dollar fine on the NRA for promoting guns, it would be unquestionably unconstitutional … But here, the NRA has lost millions of dollars from coercion [of the insurers].”
Justice Kavanaugh asked how this could be a First Amendment claim if the insurers did not deal with speech. Cole explained that the suppression of speech was the ultimate goal of the campaign, whether or not it was done through third-party actors.
The Court continued to clarify the scope of the NRA’s claim, determining whether there was a proper First Amendment claim. The Court then honed in on the issue of coercion during Vullo’s oral argument.
Justice Sotomayor asked how one illegal insurance product justified DFS’ focus on the three insurance companies. Katyal explained the illegal conduct permeated all aspects of the NRA’s insurance, noting that the NRA did not have proper licensing even outside of the Carry Guard insurance.
Justice Jackson asked, “Even with illegal activity, can’t there still be coercion?” Katyal responded by saying coercion happens all the time in government regulation, but that coercion would have to be unreasonable to rise to the level of coercion in Bantam Books.
Supreme Court Ruling:
In its unanimous opinion, authored by Justice Sotomayor, the Supreme Court ruled that the NRA had alleged facts plausibly suggesting that Vullo had violated the First Amendment by coercing DFS-regulated entities to terminate their business relationships with the NRA in order to punish or suppress its advocacy. NRA v. Vullo, 144 S. Ct. 1316 (2024). In so doing, the Court also ruled that Vullo was not insulated from First Amendment scrutiny by her argument that an insurance program offered by the NRA as a benefit to its members violated New York insurance law.
Justice Sotomayor explained that “[n]othing in this case gives advocacy groups like the NRA . . . a right to disregard state or federal laws.” Vullo, 144 S. Ct. at 1332 (internal quotation marks and citation omitted). “Similarly, nothing here prevents government officials from forcefully condemning views with which they disagree.” Id. Generally, to check the government when it speaks, “the Constitution “relies first and foremost on the ballot box, not on rules against viewpoint discrimination . . . .” Id. (internal quotation marks omitted). However, “where, as here, a government official makes coercive threats in a private meeting behind closed doors, the ‘ballot box’ is an especially poor check on that official’s authority.” Id. “Ultimately, the critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries.” Id.
As a result, the Court vacated the judgment of the Second Circuit, and remanded the case for further proceedings consistent with the opinion. The Court noted that on remand, the Second Circuit was free to consider whether Vullo was entitled to qualified immunity.