NRA v Vullo

The Far Left seems to recognize no boundaries in pursuit of their goals.  They expect the public to quietly accept whatever they do, especially since most of the media will not criticize them.  The danger the Left is willing to assume is that they may push it too far and create pushback.  In the issue before us today, the pushback came from the Supreme Court of the United States (SCOTUS).

Too often we lose sight of those non 2nd Amendment other rights protected by the Constitution.  However, sometimes those other rights have an impact on 2A. 

Which brings us to the case of National Rifle Association (NRA) v. Vullo.

The NRA sued Maria Vullo—former superintendent of the New York Department of Financial Services (DFS)—alleging that Vullo violated the First Amendment by coercing DFS regulated parties to punish or suppress the NRA’s gun-promotion advocacy. As DFS superintendent, Vullo had direct regulatory and enforcement authority over all insurance companies and financial service institutions doing business in New York. She could initiate investigations, refer cases for prosecution, notice civil charges, and enter into consent decrees. Although the NRA was not the directly regulated party here, Vullo used the power of her office to target gun promotion by going after the NRA’s business partners in the insurance industry. 

The facts.

 In a  1963 decision in Bantam Books, Inc. v. Sullivan, SCOTUS explained 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.  SCOTUS ruled that even though a state regulatory commission lacked the “power to apply formal legal sanctions,” the coerced party “reasonably understood” the commission to threaten adverse action, and thus its “compliance with the commission’s directives was not voluntary.”

Fifty five years later, on February 27, 2018, Vullo disregarded the Bantam decision and met with senior executives at Lloyds of London (a huge multinational insurance company) and expressed her views in favor of gun control, and told the Lloyd’s executives “that DFS was less interested in pursuing” infractions unrelated to any NRA business “so long as Lloyd’s ceased providing insurance to gun groups, especially the NRA.”   Vullo and Lloyd’s struck a deal: Lloyd’s “would instruct its syndicates to cease underwriting firearm-related policies and would scale back its NRA-related business,” and “in exchange, DFS would focus its forthcoming insurance enforcement action solely on those syndicates which served the NRA.”

Subsequently, on April 19, 2018, Vullo issued letters entitled, “Guidance on Risk Management Relating to the NRA and Similar Gun Promotion Organizations.”   In the Guidance Letters, Vullo “encouraged” DFS-regulated entities to: reevaluate, review and take prompt action on any dealings with the NRA or similar gun promotion organizations.

Vullo and Governor Cuomo also issued a joint press release echoing many of the letters’ statements, and “urging all insurance companies and banks doing business in New York” to join those that have already discontinued their arrangements with the NRA.

Fulfilling their part of the bargain, DFS subsequently entered into separate consent decrees with insurance companies that it had been investigating.  These companies agreed to not provide any NRA-endorsed insurance programs (even if lawful).

Vullo and the DFS’s lawyers had to be aware of the Bantam decision and know that a government official can share her views freely and criticize particular beliefs in the hopes of persuading others, but she may not use the power of her office to punish or suppress disfavored expression. 

But legalities have never been an issue to the left when pursuing their goal of undermining the Constitution.

The NRA sued Vullo alleging that Vullo violated the First Amendment by coercing DFS-regulated parties to punish or suppress the NRA’s gun-promotion advocacy.  Vullo / New York asked the federal courts to dismiss the NRA’s suit.

The District Court denied Vullo’s motion to dismiss. The court held that the NRA plausibly alleged that “the combination of [Vullo’s and Cuomo’s] actions . . . could be interpreted as a veiled threat to regulated industries to disassociate with the NRA or risk DFS enforcement action.”

On appeal, the Second Circuit reversed the District Court decision. It concluded that Vullo’s alleged actions constituted permissible government speech and legitimate law enforcement, and not unconstitutional coercion. The Second Circuit determined that the Guidance Letters and accompanying press release were not unconstitutionally coercive because they “were written in an even handed, nonthreatening tone and employed words intended to persuade rather than intimidate.”  (Was the 2nd Circuit reading the same guidance letter and considering Vullo’s meeting with Lloyd’s???)

The NRA appealed to SCOTUS and, last week, SCOTUS overruled the 2nd Circuit decision by a unanimous 9-0 decision.  Leftist Justice Sotomayer even wrote the decision.  The NRA plausibly alleged that Vullo violated the First Amendment by coercing regulated entities to terminate their business relationships with the NRA in order to punish or suppress gun-promotion advocacy.

The judgment of the U. S. Court of Appeals for the Second Circuit was vacated, and the case remanded for further proceedings consistent with this opinion.  (The NRA hasn’t won the actual case but the case is proceeding instead of being dismissed.)

In pushing this obvious violation of the NRA’s 1st Amendment Rights, Vullo and DFS may have opened a Pandora’s Box that the left will not like.

Breitbart Business Digest writes:

“Just as the NRA argued that Vullo's actions violated their rights, fossil fuel companies can now contend that insurance regulators' climate policies do the same. The arguments that the DFS used to pressure insurance companies to drop the NRA are almost the same arguments it has used to pressure companies to divest themselves from fossil fuels and stop insuring fossil fuel projects.”

“Insurers were being told to drop underwriting and investment in fossil fuels because activist "social movements" were likely to demand that they do so. Who needs to pass laws when just the possibility of leftwing activism is enough to trigger regulation?”

Let’s hope that government overreach and weaponization will suffer a significant setback.

Here is another reason why gun owners and lovers of the US Constitution need to vote.  The President nominates SCOTUS justices and the Senate confirms them.  A left leaning SCOTUS would be a clear and present danger to the Constitution.