FOR THE RECORD
NRA Adds ACLU As Co-Counsel, Bolstering Legal Team on First Amendment Case
December 9, 2023 – The National Rifle Association of America (NRA) announced today the addition of the American Civil Liberties Union (ACLU) as co-counsel with Brewer, Attorneys & Counselors in its First Amendment case, National Rifle Association of America v. Maria T. Vullo. The case, which is one of the most closely watched First Amendment lawsuits in the nation, was recently granted certiorari by the U.S. Supreme Court. Eugene Volokh remains as counsel.
“The NRA is proud to stand with the ACLU and others who recognize this important truth: regulatory authority cannot be used to silence political speech,” says NRA President Charles Cotton. “This case is important not only to the Association, but all who openly advocate for the causes and issues in which they believe.”
“The ACLU joining as counsel underscores the importance of this First Amendment case and the NRA's position that government officials cannot use intimidation tactics to silence those with whom those officials disagree,” says William A. Brewer III, partner at Brewer, Attorneys & Counselors and counsel for the NRA. “The ACLU is a leading voice on legal and constitutional issues and is a welcome addition to this advocacy.”
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 as DFS superintendent were meant to silence the NRA – using “guidance letters,” backroom threats, and other measures to cause financial institutions to “drop” the Association.
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 doing business with 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. On November 3, 2023, 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.
Seven amicus briefs representing 40 individuals and organizations were filed in support of the NRA obtaining cert.
The amicus briefs include those from state attorney generals from Montana and 17 other states, in addition to a brief filed jointly by Texas and Indiana. Various business and legal scholars, the Foundation for Individual Rights and Expression (FIRE), and the Gun Owners of America, among others, also submitted briefs.
The NRA observes this is not the first time state officials have leveraged their regulatory power to suppress a disfavored civil rights organization or choke off disfavored speech. The NRA's petition to the Court seeking cert emphasized a long line of First Amendment cases – from seminal decisions involving the NAACP, to the Supreme Court's storied Bantam Books decision – that forbid such tactics.
ACLU National Legal Director David Cole and Eugene Volokh join Brewer in representing the NRA, along with Brewer Partner Sarah B. Rogers and firm counsel Noah Peters.
Read the The New York Times report.