NRA Prevails in Dissolution Case

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Brewer, Attorneys & Counselors achieved a major legal victory on behalf of the National Rifle Association of America (“NRA”) – as a New York court struck down an unlawful attempt by New York Attorney General (“NYAG”) Letitia James to dissolve the historic gun rights organization. The NYAG filed a dissolution lawsuit against the NRA in August 2020.

On March 2, 2022, the Hon. Joel M. Cohen of the New York State Supreme Court issued an opinion that vindicated the NRA’s position. The judge found that the NYAG’s efforts ran afoul of New York law and the First Amendment.

The judge described the NRA as “a prominent advocacy organization that represents the interests of millions of members,” and added that the NYAG failed to meet the “rigorous” standard for state-sponsored dissolution of such a group – and her attempt raised free speech concerns.

Justice Cohen wrote, “The Attorney General’s claims to dissolve the NRA are dismissed.” Importantly, his opinion added, “The Complaint does not allege that any financial misconduct benefited the NRA, or that the NRA exists primarily to carry out such activity, or that the NRA is incapable of continuing its legitimate activities on behalf of its millions of members.”

The opinion also stated, “…dissolving the NRA could impinge, at least indirectly, on the free speech and assembly rights of its millions of members. While that alone would not preclude statutory dissolution if circumstances otherwise clearly warranted it, the Court believes it is a relevant factor that counsels against State-imposed dissolution, which should be the last option, not the first.”

Speaking of the decision, famed law industry observer Walter Olson writes, “…[this] decision is a victory for liberty and the rule of law and a reproach to politically minded enforcement.”

This decision comes approximately one year after a May 2021 decision in federal court that recognized the NRA’s commitment to good governance.

During a 12-day hearing that occurred over approximately four weeks in early 2021, the NRA established that it had adopted new policies and accounting controls, displaced many “insiders” who had allegedly abused the Association, and accepted reparations for costs voluntarily determined to be excess benefits. The hearing proceedings focused on the NRA’s compliance efforts, and the organization’s renewed commitment to good governance.

In an opinion, dated May 11, 2021, Judge Harlin D. Hale wrote, “In short, the testimony…suggests that the NRA now understands the importance of compliance…the NRA can pay its creditors, continue to fulfill its mission, continue to improve its governance and internal controls, contest dissolution in the NYAG Enforcement Action, and pursue the legal steps necessary to leave New York.”

The firm continues to defend the NRA against remaining claims in the NYAG lawsuit, but the judge’s ruling confirmed that the NYAG could not shut down the NRA or seize its assets.

“We applaud the court’s recognition that dissolution is neither appropriate nor justified,” said William A. Brewer III, partner at Brewer, Attorneys & Counselors and counsel to the NRA. “We look forward to continuing the defense of the NRA – and proving that it acts in the best interests of its members and the Second Amendment freedoms in which they believe.”

The ruling made national headlines, as one of the most closely-followed cases of its kind.

The Wall Street Journal reported that the ruling by Judge Cohen “represented a big win for the NRA.” The Daily Caller reported that the court handed the NRA a victory in a legal battle over its existence.

The Associated Press reported that the judge “rejected” the NYAG’s effort to put the NRA out of business. The AP noted that in a previous court filing, attorneys called the lawsuit filed by the NYAG “a blatant and malicious retaliation campaign against the NRA and its constituents based on her disagreement with the content of their speech.”

The NRA celebrated the significant legal victory.

“This is a resounding win for the NRA, its 5 million members, and all who believe in this organization,” said NRA President Charles Cotton. “The message is loud and clear: the NRA is strong and secure in its mission to protect constitutional freedom.”

Brewer added that the “developments underscore the simple truth that since taking office in 2019, the Attorney General has pushed a contrived narrative about the NRA in her attempt to support a dissolution claim that is improper. This is a victory for not only the NRA, but all who believe in the right to free speech and association.”

Related News

• “Judge Tosses New York AG’s Bid to Dissolve NRA,” The Wall Street Journal

• “NRA Scores Court Victory Against AG Letitia James in New York,” Daily Caller

•  “Judge Blocks NY’s Bid to Shutter NRA, but Lawsuits Continues,” Associated Press

• “Brewer News Release – NRA Prevails Over NYAG: Court Rules Association Cannot Be Dissolve,” Brewer, Attorneys & Counselors

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.

Related News

• “Justices Seem Likely to Side with NRA in First Amendment Dispute,” The New York Times

• “Editorial: NRA Case Shows the Supreme Court Must Stop Informal Censorship,” Bloomberg Law

• “Justices Told NRA Speech Would Thwart Regulation,” Law360

• “The ACLU Has a New Client: The National Rifle Association,” The New York Times

• “Supreme Court to Hear N.R.A.’s Free Speech Case Against New York Official,” The New York Times

• “NRA Sues New York After Insurance Crackdown,” The Wall Street Journal 

• “NRA Sues New York Governor, Regulator for ‘Blacklisting Campaign,’” Reuters 

• “Commentary: The NRA vs. Authoritarianism,” The Wall Street Journal 

• “Cuomo Targets the NRA – and Free Speech,” Albany Times Union 

• “The NRA Has Declared War on Andrew Cuomo,” The New York Times 

• “To Limit the Second Amendment, New York Attacks the First,” The National Review 

• “Andrew Cuomo is Now at War with the Bill of Rights,” The New York Post 

• “Worse Than Taking Away Guns, New York Threatens to Take Away NRA’s Insurance,” Sinclair Media Group

• “ACLU Supports NRA’s Free-Speech Argument in Suit Against Cuomo Administration,” New York Law Journal

• “NRA Secures New Documents in Bid to Revive Selective Enforcement Claims Against NY Officials,” New York Law Journal

• “NRA Says New York Probe Goes Beyond So-Called ‘Murder Insurance’,” Bloomberg

• “NRA Seeks 2nd Circ. Rehearing In Free Speech Dispute,” Law360