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Written by David L. Hudson Jr., published on June 10, 2024 , last updated on June 10, 2024

National Rifle Association v. Vullo (2024)

The Supreme Court said a government official can violate the First Amendment if found to have coerced others not to do business with a company because the government disfavored its viewpoint. This case, NRA v. Vullo, arose after a New York regulator pressured insurance companies to cease dealing with the NRA after the Sandy Hook school shooting. (AP PHOTO)

In National Rifle Association v. Vullo (2024), the U.S. Supreme Court explained that a government official can violate the First Amendment by coercing or forcing third parties not to deal with a disfavored entity because the official disagrees with the viewpoints or messages of that entity.    

The court unanimously ruled that the National Rifle Association (NRA) stated a plausible First Amendment claim when it alleged that Mario Vullo, the superintendent of the New York Department of Financial Services, pressured insurance companies and executives to cease dealing with the NRA or face governmental scrutiny. 

Vullo filed a motion to dismiss, arguing that her conduct did not rise to the level of coercion and her speech was a form of government speech under the government speech doctrine.   A federal district court disagreed, finding that actions by Vullo and other government officials could be interpreted by these third parties as a “veiled threat.”   The U.S. Court of Appeals for the 2nd U.S. Circuit Court of Appeals reversed, finding that Vullo engaged in permissible government speech, not unconstitutional coercion. 

Court compares National Rifle Association v. Vullo with 1963 case

The NRA then appealed to the U.S. Supreme Court, which took the case and reversed the 2nd Circuit.  Writing for the court, Justice Sonia Sotomayor emphasized that government officials can violate the First Amendment by coercing third parties to not deal with a disfavored entity.  

She analogized the case to Bantam Books, Inc. v. Sullivan (1963) in which a Rhode Island commission pressured book distributors not to carry or market certain books that the commission found objectionable.  

Sotomayor explained that “Bantam Books stands for the principle that a government official cannot do indirectly what she is barred from doing directly: A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf.”  

Court considered if New York official's action could be coercion

Sotomayor explained that the NRA “plausibly alleged that Vullo violated the First Amendment by coercing DFS-regulated entities into dissociating with the NRA in order to punish or suppress the NRA’s gun-promotion advocacy.” 

Justice Neil Gorsuch wrote a short concurring opinion, stressing that the “critical” question in these cases is whether a government official’s conduct amounts to threats or coercion.  Justice Ketanji Jackson also wrote a concurrence.  She emphasized that a plaintiff must show more than government official coercion and also show a First Amendment violation.  She also said that on remand, the lower courts will need to separately examine the plaintiff’s claims of censorship and retaliation.  

David L. Hudson Jr. is a law professor at Belmont who publishes widely on First Amendment topics.

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