Amicus Brief: NRA v. Vullo
The Supreme Court is considering whether the First Amendment allows a government regulator to threaten regulated entities if they do business with a controversial speaker. In the wake of the Parkland school shooting, the New York Department of Financial Services (“DFS”) Superintendent Maria Vullo issued guidance commending insurers that had severed their ties with National Rifle Association and encouraging other insurers to manage risks and associations “with the NRA or similar gun promotion organizations.” The agency had previously launched an investigation into insurers offering policies through the NRA, and ultimately signed a consent decree with the insurers ending such policies.
The case has implications far beyond the curtailment of the NRA’s First Amendment rights and implicates a split of the federal circuit courts. Does the government enjoy the same speech rights as private citizens—and can it therefore speak in ways that apply pressure to individuals/entities and imply consequences for those who do not bend to its will? Or is the Constitution concerned primarily with the speech and associational rights of individuals?—in which case, the totality of government action, short of explicit threats, may chill speech and thus violate the First Amendment.
As it happens, even the ACLU is supporting the NRA here. The Manhattan Institute has now joined Advancing American Freedom and 30 other organizations on a brief in support of the more expansive view of private speech rights, and against old-fashioned government jawboning of the pre-tech-era variety.