WASHINGTON (CN) — The Supreme Court weighed on Monday whether a New York financial regulator violated the National Rifle Association’s First Amendment rights by forcing insurance companies to disassociate themselves from the gun rights group in the wake of the 2018 Parkland, Florida, school shooting.
Justice Samuel Alito, a George W. Bush appointee, summed up the issue before the court: “How do you define when it goes too far along that line?” he asked, explaining that sought some clarity on the spectrum between persuasion and coercion.
The NRA's American Civil Liberties Union attorneys couldn't eliminate the gray between the two extremes, but said Vullo’s conduct was at the coercion end of the spectrum.
At the heart of the case is a former NRA insurance program known as Carry Guard, which covered losses NRA members incurred by using their firearms, including criminal defense costs. The program covered cases of excessive force, even if members acted with criminal intent.
Maria Vullo, then the superintendent of the New York Department of Financial Services, launched a probe into the program in 2017 that determined Carry Guard violated the state’s insurance law by covering illegal conduct. Soon after, Chubb Ltd. and Lockton Companies LLC, the underwriter and administrator of the program, suspended it.
Following the Feb. 18, 2018, Parkland shooting — where 17 students and staff were shot and killed — Vullo and former New York Governor Andrew Cuomo took aim at the NRA, publicly urging companies throughout the state to cut ties with the gun rights group.
The justices seemed ready to accept that Vullo had wrongfully coerced one such group, Lloyd’s of London — a third-party insurance company that underwrote at least 11 other similar affinity insurance programs — into disassociating itself. Vullo’s promise that Lloyd’s could avoid liability for underwriting the other polices “so long as it aided [the New York Department of Financial Services'] campaign against gun groups” seemed to hint the underwriter would face liability otherwise.
But Vullo’s conduct outside the meeting with Lloyd executives appeared less clean-cut, particularly the two guidance letters she issued to New York insurance and financial companies advising that they weigh the reputational risks of working with the NRA.
Justice Elena Kagan, a Barack Obama appointee, pressed NRA attorney David Cole on whether the letters could be considered mere advice that companies take special care of their reputations, something they would consider anyway.
Cole, the national legal director of the American Civil Liberties Union, argued otherwise. He described the guidance as a “scarlet letter” that remains posted on the agency’s site and continues to harm the group.
“This was not just advice. She was trying to leverage her authority to weaken the NRA,” Cole said.
He cited the 1963 Supreme Court case Bantam Books Inc. v. Sullivan, which set a legal test to determine whether a government official used threats to coerce an individual or organization away from certain speech or viewpoints.
Cole described Vullo’s conduct as an altered version of the Rhode Island Commission’s, whose conduct was at issue in Bantam, and which threatened bookstores with notices their stock had been deemed “objectionable;” recommended cooperation with now-informed local police departments; and reminded stores that the commission could recommend prosecution. Vullo’s guidance letters, Cole said, could be compared to using building code violations to close the bookstores instead.
Vullo's attorney Neal Katyal of the firm Hogan Lovells defended the financial regulator’s conduct, arguing that because the NRA’s Carry Guard program was illegal, Vullo’s conduct did not reach the higher Bantam standard.
He warned that the gun rights group was “weaponizing the First Amendment,” and if the justices were to rule in their favor, groups could avoid regulation for their illegal conduct by claiming they are being retaliated against for having controversial viewpoints.
In an exchange with Cole, Justice Ketanji Brown Jackson addressed that question directly, asking how the court could avoid such an outcome.
Cole argued that the First Amendment requires strict scrutiny in cases where the government is accused of censoring or burdening speech, and this case had no effect on how the Bantam standard was applied, as it has been since 1963.
Ephraim McDowell, assistant to the solicitor general, also spoke Monday, urging the justices to rule that Vullo had overstepped her authority but to go no further.
The justices are expected to issue a ruling before the end of the term in June.
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