In a controversial decision, the American Civil Liberties Union (ACLU) decided to defend the National Rifle Association (NRA) before the Supreme Court this year.
In 2018, the NRA claimed in a federal lawsuit that Maria T. Vullo, the former superintendent of the New York State Department of Financial Services, (DFS), coerced and threatened banks and insurers to sever business relationships with the gun group. The NRA claimed in its suit that Vullo used her position to suppress the “NRA’s pro-Second Amendment viewpoint” with the “intent to obstruct, chill, deter, and retaliate against the NRA’s core political speech,” an alleged violation of the group’s First Amendment rights.
Vullo sent guidance letters to New York financial institutions encouraging them to evaluate the “reputational risks” that may arise from maintaining business relationships with the NRA. Those letters were sent just two months after the February 2018 shooting at the Marjory Stoneman Douglas High School in Parkland, Florida, where 17 students and staff members were killed.
In March 2021, a federal district judge ruled that Vullo’s actions “could be interpreted as a veiled threat to regulated industries to disassociate with the NRA or risk DFS enforcement action.” But in September 2022, the U.S. Court of Appeals for the Second Circuit reversed the lower court’s decision, determining that Vullo had acted in her official capacity and her contact with the businesses was in “good faith.”
The NRA appealed the decision to the Supreme Court, which agreed to hear the case in November. And in December, the ACLU confirmed it would provide legal representation for the gun group, even though it “vigorously” disagrees with its mission.
In an interview with First Amendment Watch, ACLU Legal Director David Cole, who will argue the NRA’s case in front of the Supreme Court, said that despite the pushback the national organization received from its state-based chapters, it vows to protect free speech rights of those with whom they may disagree. Cole warned of the sweeping consequences a decision against the NRA could have for other advocacy organizations, including those protecting women’s and trans rights, and noted that a decision against the NRA could give former President Donald Trump a “powerful tool” to punish his opponents if he returns to the Oval Office.
Editor’s note: This interview has been edited and condensed for length and clarity.
FAW: In this case, we have a Second Amendment organization embroiled in a First Amendment dispute. Lawyer for the NRA, William Brewer, described this case in The New York Times as the joining of the “800-pound gorilla on the Second Amendment” with the “800-pound gorilla on the First Amendment.” Is that how you see it?
DC: Yeah. We are involved because we think it’s an incredibly important First Amendment case. It happens to involve an organization with which we often disagree, but we agree on the First Amendment principles at stake and and we stepped forward to defend those principles.
FAW: Would you describe this as a case of political speech, one centered on viewpoint discrimination, or both?
DC: Both political speech and viewpoint discrimination. Vullo targeted the NRA in her own words, because it engages in gun promotion advocacy, and gun promotion advocacy is political speech. And she singled it out because she opposes the availability of guns and the NRA promotes the availability of guns, so it’s a viewpoint-based targeting of political speech.
FAW: In regards to her suggestions to the regulators, Vullo said they should be concerned with “reputational risks,” and it seems the First Amendment claim here is that Vullo’s suggestion impedes on the NRA’s gun advocacy. What would “reputational risks” mean?
DC: The central question in the case is whether she abused her regulatory authority to coerce banks and insurance companies to blacklist the NRA. And so yeah, we believe that, when you look at her actions, in combination, there is no question that she employed her official regulatory power over banks and insurance companies to urge them to cut off all ties to the NRA, regardless of whether those ties were legal or illegal under insurance law, expressly because she opposed the NRA’s political viewpoint. So the way the Second Circuit put the questions; Was she engaged in mere government speech, mere persuasion, or was she engaged in the sorts of veiled threats that crossed the First Amendment line? Any objective assessment of the facts here demonstrates that she went far beyond mere persuasion. This was not an op-ed. This was not a piece of advice about a particular insurance law provision. This was a political vendetta aimed at this organization because of its advocacy, and using her official power as the superintendent of DFS to coerce her regulated entities into cutting off business with the NRA. And so she did that through the guidance letters, through a press release, through explicit threats and meetings with some of the insurers, and through her consent orders that she entered with the NRA’s three biggest affinity insurance providers.