National Rifle Association v. Vullo: A Unanimous Victory for Free Speech

Written by: Mark Valenti

On May 30th, the Supreme Court issued one of its most highly anticipated free speech decisions in recent terms. In National Rifle Association v. Vullo, the Court reaffirmed the principle that the Free Speech Clause of the First Amendment prevents government actors from coercing private intermediaries to punish or suppress speech.

In 2018, the National Rifle Association (NRA) brought censorship and retaliation First Amendment claims against Maria Vullo, the former superintendent of the New York Department of Financial Services (DFS). In its complaint, the NRA alleged that Vullo used her office to coerce DFS-regulated insurance companies and financial services institutions into severing ties with the organization due to its pro-Second Amendment viewpoints.

The complaint made several allegations regarding Vullo’s treatment to these entities. First, it accused the then-head of DFS of meeting with executives of a DFS-regulated company and informing them that their company “could avoid liability for [regulatory] infractions…so long as it aided DFS’s campaign against gun groups.” Second, it alleged that Vullo had sent guidance letters to DFS-regulated entities which had stated that companies that had ceased doing business with the NRA “fulfill[ed] their corporate social responsibility.” The NRA also claimed that, in these guidance letters, Vullo asked companies that had ties with the organization to reevaluate their business relationship with the advocacy group and other “gun promotion organizations.” Further, the complaint stated that, in a press conference with then-Governor Andrew Cuomo, Vullo publicly doubled down on some of the statements that she made in the guidance letters.

Vullo moved to dismiss the action, arguing that these allegations did not rise to the level of unconstitutional coercion and that, even if the court found otherwise, she was entitled to qualified immunity since this area of the law was not clearly established. The district court denied her motion and held that she could not assert qualified immunity at that stage of litigation. The Second Circuit, however, disagreed with both rulings. It found that Vullo’s actions did not constitute impermissible coercion since they were written in a way “intended to persuade rather than intimidate.” The Second Circuit determined that Vullo was simply fulfilling her duties as a state regulator and that, even if the plaintiff had stated a First Amendment claim, Vullo could invoke qualified immunity, since the law was not clearly established.

The Supreme Court vacated the Second Circuit’s judgment, holding that the NRA plausibly stated a First Amendment claim against Vullo. Writing for the unanimous Court, Justice Sotomayor emphasized that a government actor has a right to “engag[e] in their own expressive conduct” but, they may not use their office to punish or suppress views that they disagree with. The Court heavily relied on the standard established in Bantam Books, Inc. v. Sullivan for determining whether a communication is unconstitutionally coercive. Under that precedent, the question turns upon whether the communication at issue could be “reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff’s speech.”

In deciding whether the communications met this standard, the Court considered several factors, including Vullo’s authority. As superintendent of DFS, Vullo had direct authority over the insurance companies and financial institutions at stake, including the power to “initiate investigations,” “refer cases for prosecution,” and “notice civil charges.” The Court ultimately reasoned that this authority, paired with Vullo’s actions, meant that the communications could be reasonably understood as coercive. The Court also found that the Second Circuit erred in failing to “draw reasonable inferences in the NRA’s favor.” It concluded that the lower court mistakenly viewed the allegations in “isolation,” rather than considering these in their entirety.

Justice Sotomayor made it clear that the Court’s ruling does not give private groups a “right to absolute immunity from government investigation” nor does it prohibit government actors from speaking out against views that they disfavor. According to her, the gist of the Court’s decision is that a government official may not punish or suppress expression regardless of whether this is accomplished through direct or indirect means.

Advocacy groups from both sides of the political aisle have touted the Court’s decision as a victory for free speech. But the ruling might not even be the most consequential First Amendment decision of the current term, as the Court has yet to release opinions in two other free speech cases, Murthy v. Missouri and Gonzalez v. Trevino. The “free speech trifecta,” as legal scholar Jonathan Turley has labeled these cases, have the potential to shape our First Amendment jurisprudence for years to come.


Jonathan Turley, Free speech hangs in the balance in 3 Supreme Court cases, THE HILL (Mar. 23, 2024). 

National Rifle Association v. Vullo, 602 U. S. ____ (2024).