Amicus Brief: NRA v. Vullo

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.

MI filed a brief with Advancing American Freedom and 30 other organizations in support of the more expansive view of private speech rights, and against old-fashioned government jawboning of the pre-tech-era variety. In 2023, the Supreme Court agreed, unanimously ruling that Vullo had violated the NRA's First Amendment rights. On remand, however, the Second Circuit held that Vullo was entitled to qualified immunity and thus was immune from civil liability. The NRA is asking the Supreme Court to take the case again and we’ve now joined the same coalition on a brief supporting that petition. We argue that (1) existing precedent holds that indirect efforts to circumvent the Constitution’s protections are as invalid as direct efforts to violate them; (2) the Second Circuit opened the door to creative suppression of First Amendment-protected activity; and (3) the New York government’s actions harm the NRA and other advocacy organizations’ right to free association.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

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