LEGAL FACTS

April 5, 2023 – Eighteen Republican Attorneys General today filed an amicus brief in support of the NRA’s certiorari petition to the Supreme Court. On February 7, 2023, the NRA petitioned the U.S. Supreme Court to review a much criticized opinion issued by the United States Court of Appeals for the Second Circuit in NRA v. Maria Vullo.

 

A copy of their amicus brief is available here.

 

The brief is important validation of the NRA’s position and its advocacy. The support of 18 state Attorneys General highlighting the danger of the Second Circuit’s opinion is a powerful signal to the Supreme Court justices that the NRA’s case is worthy of its consideration.

 

The former Superintendent of the New York State Department of Financial Services (DFS), Maria Vullo, at the behest of former New York Governor Andrew Cuomo, took aim at the NRA and conspired to use DFS's regulatory power to financially blacklist the NRA – coercing banks and insurers to cut ties with the Association, in order to suppress its pro-Second Amendment speech. The NRA argues that Vullo’s actions were meant to silence the NRA – using “guidance letters” 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 – ruling, among other things, 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 “social backlash” against those groups’ advocacy. The court also ruled that Vullo’s guidance was not a directive to the institutions she regulated but rather a mere expression of her political preferences.

 

The AGs write: “The Second Circuit’s decision gives government officials license to financially cripple their political opponents, or otherwise stifle their protected speech—whether those rivals advocate for school choice, abortion rights, religious liberty, environmental protections, or any other politically salient issue. As the ACLU argues, the decision gives ‘[p]ublic officials … a readymade playbook for abusing their regulatory power to harm disfavored advocacy groups without triggering judicial scrutiny.’”

 

They continue, “If the Second Circuit’s decision is left standing, it’s not difficult to imagine government officials employing similar tactics to stifle disfavored speakers. Whether the method of choice is to target financial institutions that advocacy groups depend on to engage in fulsome political advocacy—whether related to school choice, abortion, religious liberty, or environmental issues—or simply to target private organizations that host events for such groups, the path forward is clearly marked.”

 

The authors note that DFS clearly communicated to regulated institutions that “business relationships with the NRA were off limits.”

 

Finally, the AG’s write there are many cases that stand in contrast to the conduct allowed here. The AGs write that those cases recognize that “government officials’ reliance on subtle threats of coercive government action can stifle disfavored speakers. And if this Court doesn’t intervene to shut down that path, ‘where would such official bullying end … ?’”