Readers of the blog may I recall that I was counsel of record for the NRA in the Supreme Court stage of NRA v. Vullo, and that the ACLU's David Cole presented oral argument before the Court. The Court unanimously held that the NRA stated a claim, and remanded the case to the Second Circuit as to qualified immunity; the Second Circuit held oral argument two weeks ago, and I thought some of you folks might be interested in what happened there. Bill Brewer (the NRA's lead lawyer on this) and his team and I therefore put together this quick post; I should note that my role here is an advocate and not as an impartial academic, but my sense was that our readers might still find this analysis interesting:
On Wednesday November 13, 2024, the Second Circuit held oral argument in National Rifle Association v. Vullo, No. 21-636, on the issue of qualified immunity. Commenced by the Brewer law firm on behalf of the National Rifle Association of America (NRA) in 2018, the Vullo lawsuit advances First Amendment claims against former New York Governor Andrew Cuomo and the state's former head financial regulator, Maria Vullo, over an alleged censorship scheme that coerced banks and insurers to blacklist the gun group.
Although some allegations in the lawsuit are disputed, Vullo never denied urging regulated firms to sever their services to the NRA, based explicitly on the NRA's pro-gun speech. In official regulatory guidance to the CEOs of entities she supervised, Vullo insisted that New York's banks and insurers owed "a commitment to society as a whole," which (in her view) disfavored letting gun-rights advocates have bank accounts or health insurance. Surprisingly, the Second Circuit seemed to countenance this reasoning in 2022, when it rejected the NRA's First Amendment claims—citing, among other things, a DEI-consulting whitepaper on corporate social responsibility.
We were joined by the American Civil Liberties Union (ACLU), as the NRA appealed this ruling to the United States Supreme Court for the NRA. In a rebuke from a unanimous Court, Justice Sonia Sotomayor revived the NRA's claims this past June, emphasizing decades of precedent that "[a] government official cannot coerce a private party to punish or suppress disfavored speech on her behalf." Moreover, the Court said, Vullo's alleged conduct struck at the heart of this prohibition. In light of the Court's guidance on the First Amendment merits of the NRA's allegations, Sotomayor added, the Second Circuit was free to reconsider the issue of qualified immunity, i.e., whether Vullo's alleged violations were such that the NRA should be able to sue her individually for damages.
