What do epidemiologist Martin Kulldorff and the National Rifle Association have in common? More than is first apparent. Both advocate for views unpopular with left-wing politicians, a “herd immunity” approach to COVID-19 in the doctor’s case and gun ownership in the NRA’s.
Because of their views, both had their dealings with third parties curtailed by government threats. Both responded by filing cases that were argued before the Supreme Court on the same day. And both asked the high court to hold that the government’s ability to speak doesn’t vest it with power to suppress disfavored views.
On Thursday, the Supreme Court decided one of those cases, National Rifle Association v. Vullo, less than two months after it was argued. In a surprise to many, Justice Sonia Sotomayor wrote the unanimous opinion ruling in the NRA’s favor.
Although the case involved the Second Amendment’s most visible advocates, the case at its core was about the Constitution’s First Amendment protections. And while interesting in its own right, one can’t help but look through the decision for clues forecasting the high court’s still-pending ruling in Kulldorff’s case, Murthy v. Missouri.
In 2017, Maria Vullo, head of New York’s Department of Financial Services, launched investigations into insurers that did business with the National Rifle Association. Certain NRA-endorsed insurance programs had violated New York state law, but after the 2018 mass shooting at a high school in Parkland, Florida, Vullo and then-New York Gov. Andrew Cuomo leveraged public outrage with the threat of regulatory penalties to get insurers to cut all business ties with the NRA.
In private meetings, Vullo stated that her department would cease investigating infractions—many unrelated to the NRA—if the insurers cut ties with the gun rights advocacy organization. Several insurers promptly agreed to end relationships and not enter new ones with the NRA.
The NRA sued, alleging that the Department of Financial Services coerced the insurers because of its pro-gun advocacy. That, the NRA alleged, was censorship and retaliation in violation of the First Amendment.
Although the trial court let the case proceed, the 2nd U.S. Circuit Court of Appeals dismissed the NRA’s claims, reasoning that Vullo’s exchanges with insurers were legitimate regulatory activity and permissible government speech.
The Supreme Court reversed the 2nd Circuit with a resounding 9-0 vote. Writing for the court, Sotomayor explained that officials such as Vullo could criticize the National Rifle Association and penalize legitimate infractions, but they could not wield the threat of investigations to penalize the NRA for disfavored speech.
The principle is not new, dating back at least to the high court’s 1963 decision in Bantam Books Inc. v. Sullivan, but its application depends on several factors—the official’s authority, tone, reference to consequences, the recipient’s response—none of which are dispositive.
The 2nd Circuit’s error was assessing each of the NRA’s allegations in isolation, rather than taking a comprehensive view of the pressure Vullo exerted on the insurers. The Supreme Court had no difficulty finding that the NRA’s complaint as a whole alleged threats amounting to unlawful coercion, retaliation, or both.
Vullo not only communicated her dislike of the NRA to the insurers she regulates, she also made clear that her department would pursue a host of unrelated investigations against them unless they ceased to do any business with the gun rights organization. And as an agency head, she had the authority to make the threats a reality.
That holding is a win for the NRA and broad First Amendment protections. But it is far from clear that the decision here portends a similar outcome in the Murthy case.
Although similar in substance, the NRA’s case reached the Supreme Court in an earlier procedural posture where courts must credit a plaintiff’s well-pleaded allegations. The Murthy plaintiffs, by contrast, have had the benefit of fact discovery and therefore have the heavier burden of offering evidence that proves their allegations.
In the NRA’s case, a deputy U.S. solicitor general argued that the 2nd Circuit was wrong to find no coercion. Her office argued that same day in Murthy that when White House officials spent months berating Facebook’s and Twitter’s content moderators about supposed disinformation, those officials were merely attempting to persuade.
It would not be surprising for the Supreme Court to find that those officials don’t have the same direct authority to punish social media companies that Vullo plainly had over insurance companies. The Murthy plaintiffs also face a difficulty that the National Rifle Association doesn’t: ongoing injury.
The NRA has an ongoing injury because the organization’s former insurers refuse to resume business dealings. Meanwhile, counsel for the Murthy plaintiffs had difficulty convincing the justices during oral argument that his clients are or will be the subject of future censorship.
Still, there are some hopeful signs. In her opinion, Sotomayor affirmed that “a government official cannot do indirectly what she is barred from doing directly: A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf.”
Sotomayor acknowledged concerns present in both cases when the government attacks disfavored speech through a third party: This approach, she wrote, “allows government officials to be more effective in their speech-suppression efforts because intermediaries will often be less invested in the speaker’s message and thus less likely to risk the regulator’s ire.”
And although political accountability can check certain forms of government coercion, Sotomayor wrote, when the “government official makes coercive threats in a private meeting behind closed doors, the ‘ballot box’ is an especially poor check on that official’s authority.”
Give credit where it’s due: Sotomayor’s diagnosis is sound. Let’s hope that when the Supreme Court grapples with those issues in Murthy v. Missouri, the diagnosis remains the same and the treatment will not be withheld.
