Firm Represents the NRA in First Amendment Case Before the Supreme Court

 
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On March 18, 2024, the United States Supreme Court heard oral arguments in the case National Rifle Association of America v. Maria T. Vullo. The Supreme Court accepted the case on November 3, 2023. It is one of the most closely watched First Amendment cases in decades.

““This case is important to the NRA and all advocacy organizations who rely upon the protections of the First Amendment. Every advocacy group will benefit if the Court reminds government officials that they cannot use intimidation tactics, backdoor censorship, or regulatory blacklisting to silence those with whom they disagree.” ”
— William A. Brewer III, counsel to the NRA

 The court is considering a critical First Amendment issue – whether the government can threaten regulated entities, like banks and insurers, with adverse action should they refuse to "drop" controversial speakers based on their speech. The Brewer firm has represented the NRA on this matter since its inception.  

In a May 2018 lawsuit, the NRA alleged that Vullo, at the behest of former New York Governor Andrew Cuomo, took aim at the NRA and conspired to use the regulatory power of the New York Department of Financial Services (DFS) to “financially blacklist” the NRA – coercing banks and insurers to cut ties with the Association to suppress its pro-Second Amendment speech. The NRA argues that Vullo’s actions were meant to silence the NRA – using “guidance letters,” backroom threats, and other measures to cause financial institutions to “drop” the Association.

In the trial court, the NRA's First Amendment claims withstood multiple motions to dismiss. But in 2022, after Vullo appealed the trial court’s ruling, the Second Circuit struck down the NRA’s claims. The court ruled that in an era of “enhanced corporate social responsibility,” it was reasonable for New York's financial regulator to warn banks and insurance companies against servicing pro-gun groups based on the supposed “social backlash” against those groups’ advocacy. The court also ruled that Vullo’s guidance – written on her official letterhead and invoking her regulatory powers – was not a directive to the institutions she regulated, but rather a mere expression of her political preferences.

 On February 7, 2023, the NRA petitioned the U.S. Supreme Court, seeking review of the Second Circuit decision.

The Court granted review on the following question:  Does the First Amendment allow a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government’s own hostility to the speaker’s viewpoint or (b) a perceived “general backlash” against the speaker’s advocacy?

 “The Second Circuit’s opinion…gives state officials free rein to financially blacklist their political opponents – from gun rights groups, to abortion-rights groups, to environmentalist groups, and beyond,” the NRA states in its petition. The Association argues that the Second Circuit erroneously opened the door to unrestrained harassment of advocacy groups by state officials, and seeks to have it closed.

In December 2023, the American Civil Liberties Union (ACLU) joined the Brewer firm as co-counsel in the case. The NRA is also represented by First Amendment scholar Eugene Volokh.

“In this hyper-polarized environment, where few are willing to cross the aisle on anything, the fact that the ACLU is defending the NRA here only underscores the importance of the free speech principle at stake," ACLU Legal Director David Cole told The New York Times.

On January 9, 2024, the NRA filed its opening brief, in which the NRA wrote that government officials "may of course express their opinions without violating the First Amendment. If Vullo had written an op-ed criticizing the NRA, she would not have violated the First Amendment. Likewise, had Vullo merely informed regulated entities about the legal requirements pertaining to affinity insurance programs, she would not have violated the First Amendment."

The brief continues, "But Vullo did nothing of the sort. Instead, motivated by her avowed antipathy toward the NRA’s political views, she invoked her unparalleled authority over the trillion-dollar New York financial services industry to coerce banks and insurance companies to blacklist the NRA, offering a blend of threats and inducements expressly designed to penalize the NRA for its political advocacy. That course of conduct violated the First Amendment."

Since then, 190 individuals and organizations filed 22 amicus briefs in support of the NRA's legal battle.

On March 18, 2024, oral arguments were heard before the Supreme Court.

Cole argued that Vullo and other New York officials abused their authority in violation of the First Amendment, telling the justices: “There's no question on this record that they encouraged people to punish the NRA. Cole said, “It was a campaign by the state’s highest political officials to use their power to coerce a boycott of a political advocacy organization because they disagreed with its advocacy.”

​A ruling is expected this June.

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Andrew Lloyd