FOR THE RECORD
NRA Files Cert Petition with U.S. Supreme Court; Seeks Review of Case Against Former
New York Governmental Official Tied to “Blacklisting Campaign”
Moment of Truth: Case Seeks to Clarify Protections of Free Speech in What May Become the Supreme Court's First Major "ESG" Case
February 7, 2023 – The National Rifle Association of America (NRA) today filed a petition for a writ of certiorari with the U.S. Supreme Court, seeking review of a controversial judgment issued by the United States Court of Appeals for the Second Circuit in NRA v. Maria T. Vullo. The matter in question is one of the nation’s most high-profile First Amendment cases. First Amendment scholar Eugene Volokh joins as counsel on the brief.
As the former Superintendent of the New York State Department of Financial Services (DFS), Vullo, at the behest of former New York Governor Andrew Cuomo, allegedly wielded DFS's regulatory power to financially blacklist the NRA – coercing banks and insurers to cut ties with the Association, in order to suppress its Second Amendment speech. The lawsuit's allegations are explosive and include backroom threats by Vullo against regulated firms, accompanied by offers of leniency on unrelated infractions if regulated entities agreed to blacklist the NRA.
The NRA's First Amendment claims withstood multiple motions to dismiss during the course of 2018 – 2020. But in 2022, after Vullo appealed the trial court's ruling on qualified immunity, 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 against servicing gun groups.
NRA Executive Vice President and CEO Wayne LaPierre says the case is a proving ground for America’s commitment to freedom of speech and association.
“In the face of the Second Circuit’s decision, the stakes could not be higher. This is a moment of truth for our nation’s justice system. The Court must clarify the limits on governmental officials and affirm the freedoms of assembly and speech,” LaPierre says. “We believe that New York’s conduct in opposition to the NRA’s advocacy sets a dangerous precedent for our entire nation.”
“The NRA is pursuing judicial review of a record that is equally disturbing and unconstitutional: New York state officials weaponizing the powers of their office against a political adversary,” says William A. Brewer III, counsel to the NRA. “This case is important not only to the NRA but all advocacy groups that rely upon the protections of the First Amendment.”
The NRA alleges that under the guise of advancing a gun-control agenda dovetailing with so-called Environmental, Social and Governance (ESG) trends, “Vullo: (1) warned regulated institutions that doing business with Second Amendment advocacy groups posed ‘reputational risk’ of concern to DFS; (2) secretly offered leniency to insurers for unrelated infractions if they dropped the NRA; and (3) extracted highly-publicized and over-reaching consent orders, and multi-million dollar penalties, from firms that formerly served the NRA.”
The Vullo-endorsed campaign began with an investigation into the NRA’s involvement with certain widely offered affinity insurance products. New York failed to investigate other similar insurance offerings – and was the only state to take such action against the NRA. The NRA was incorporated in New York more than 150 years ago.
Vullo issued official regulatory “guidance letters” on April 19, 2018, addressed on DFS letterhead to CEOs of banks and insurance companies doing business in New York, which effectively urged them to “sever ties with the NRA immediately,” says the NRA. The campaign destroyed crucial financial relationships and disrupted business, according to the Association.
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 emphasizes 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.
“The parallels between the NRA’s case and other landmark First Amendment cases are obvious: governmental agencies weaponizing their powers to penalize legal, constitutionally protected activity,” Brewer says. “The present ruling in the NRA’s case opens Pandora’s box, giving public officials unbridled power to attack those with whom they disagree.”
“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,” states the NRA in its petition. The Association argues that the Second Circuit has erroneously opened the door to unrestrained harassment of advocacy groups by state officials, and seeks to have it closed.
A host of legal experts and constitutional scholars, including the ACLU, have sided with the NRA on its case and recognized the harrowing implications of the actions taken by Cuomo and Vullo.
The ACLU previously wrote, “If Cuomo can do this to the NRA, then conservative governors could have their financial regulators threaten banks and financial institutions that do business with any other group whose political views the governor opposes. The First Amendment bars state officials from using their regulatory power to penalize groups merely because they promote disapproved ideas.”