NRA of Am. v. Vullo, 2024 U.S. LEXIS 2366 (S. Ct. May 30, 2024) (Sotomayor, J.).
In Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 83 S. Ct. 631, 9 L. Ed. 2d 584, this Court explored the distinction between permissible attempts to persuade and impermissible attempts to coerce. The Court explained that the First Amendment prohibits government officials from relying on the “threat of invoking legal sanctions and other means of coercion . . . to achieve the suppression” of disfavored speech. Id., at 67, 83 S. Ct. 631, 9 L. Ed. 2d 584. Although the defendant in Bantam Books, a state commission that blacklisted certain publications, lacked the “power to apply formal legal sanctions,” the coerced party “reasonably understood” the commission to threaten adverse action, and thus its “compliance with the [c]ommission’s directives was not voluntary.” Id., at 66-68, 83 S. Ct. 631, 9 L. Ed. 2d 584. To reach this conclusion, the Court considered things like: the commission’s authority; the commission’s communications; and the coerced party’s reaction to the communications. Id., at 68, 83 S. Ct. 631, 9 L. Ed. 2d 584. The Courts of Appeals have since considered similar factors to determine whether a challenged communication is reasonably understood to be a coercive threat. Ultimately, Bantam Books stands for the principle that a government official cannot directly or indirectly coerce a private party to punish or suppress disfavored speech on her behalf.
Justice Sotomayor delivered the opinion of the Court.
Six decades ago, this Court held that a government entity’s “threat of invoking legal sanctions and other means of coercion” against a third party “to achieve the suppression” of disfavored speech violates the First Amendment. Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 67, 83 S. Ct. 631, 9 L. Ed. 2d 584 (1963). Today, the Court reaffirms what it said then: Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors. Petitioner National Rifle Association (NRA) plausibly alleges that respondent Maria Vullo did just that. As superintendent of the New York Department of Financial Services, Vullo allegedly pressured regulated entities to help her stifle the NRA’s pro-gun advocacy by threatening enforcement actions against those entities that refused to disassociate from the NRA and other gun-promotion advocacy groups. Those allegations, if true, state a First Amendment claim.
On February 14, 2018, a gunman opened fire at Marjory Stoneman Douglas High School, murdering 17 students and staff members. Following the shooting, the NRA and other gun-advocacy groups experienced “intense backlash” across the country. Major business institutions, including DFS-regulated entities, spoke out against the NRA, and some even cut ties with the organization. MetLife, for example, ended a discount program it offered with the NRA. On February 25, 2018, Lockton’s chairman “placed a distraught telephone call to the NRA,” in which he privately shared that Lockton would sever all ties with the NRA to avoid “‘losing [its] license’ to do business in New York.” Lockton publicly announced its decision the next day. Following Lockton’s decision, the NRA’s corporate insurance carrier also severed ties with the organization and refused to renew coverage at any price. The NRA contends that Lockton and the corporate insurance carrier took these steps not because of the Parkland shooting but because they feared “reprisa[l]” from Vullo.
Vullo “encourage[d]” DFS-regulated entities to: (1) “continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations”; (2) “review any relationships they have with the NRA or similar gun promotion organizations”; and (3) “take prompt actions to manag[e] these risks and promote public health and safety.” Id., at 248, 251.
The same day that DFS issued the Guidance Letters, Vullo and Governor Cuomo issued a joint press release that echoed many of the letters’ statements. The press release included a quote from Vullo “‘urg[ing] all insurance companies and banks doing business in New York’” to join those “‘that have already discontinued their arrangements with the NRA.’” Id., at 244. The press release cited Chubb’s decision to stop underwriting Carry Guard as an example to emulate. The next day, Cuomo tweeted: “‘The NRA is an extremist organization. I urge companies in New York State to revisit any ties they have to the NRA and consider their reputations, and responsibility to the public.’”
Less than two weeks after the Guidance Letters and press release went out, DFS entered into consent decrees with Lockton (on May 2), and Chubb (on May 7). The decrees stipulated that Carry Guard violated New York insurance law because it provided insurance coverage for intentional criminal acts, and because the NRA promoted Carry Guard, along with other NRA-endorsed programs, without an insurance producer license. The decrees also listed other infractions of the State’s insurance law. Both Lockton and Chubb admitted liability, agreed not to provide any NRA-endorsed insurance programs (even if lawful) but were permitted to sell corporate insurance to the NRA, and agreed to pay fines of $7 million and $1.3 million respectively. On May 9, Lloyd’s officially instructed its syndicates to terminate existing agreements with the NRA and not to insure new ones. It publicly announced its decision to cut ties with the NRA that same day. On December 20, 2018, DFS and Lloyd’s entered into their own consent decree, which imposed similar terms and a $5 million fine.
The NRA sued Cuomo, Vullo, and DFS. The only claims before the Court today are those against Vullo—namely, claims that Vullo violated the First Amendment by coercing DFS-regulated parties to punish or suppress “the NRA’s pro-Second Amendment viewpoint” and “core political speech.” Id., at 231, ¶91, 234, ¶101. The complaint asserts both censorship and retaliation First Amendment claims, which the parties and lower courts have analyzed together. Vullo moved to dismiss, arguing that the alleged conduct did not constitute impermissible coercion and that, in the alternative, she was entitled to qualified immunity because she did not violate clearly established law.
At the heart of the First Amendment’s Free Speech Clause is the recognition that viewpoint discrimination is uniquely harmful to a free and democratic society. The Clause prohibits government entities and actors from “abridging the freedom of speech.” When government officials are “engaging in their own expressive conduct,” though, “the Free Speech Clause has no application.” Pleasant Grove City v. Summum, 555 U. S. 460, 467, 129 S. Ct. 1125, 172 L. Ed. 2d 853 (2009). The government can “‘say what it wishes’” and “select the views that it wants to express.” Id., at 467-468, 129 S. Ct. 1125, 172 L. Ed. 2d 853 (quoting Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 833, 115 S. Ct. 2510, 132 L. Ed. 2d 700 (1995)). That makes sense; the government could barely function otherwise. “When a government entity embarks on a course of action, it necessarily takes a particular viewpoint and rejects others,” and thus does not need to “maintain viewpoint-neutrality when its officers and employees speak about that venture.” Matal v. Tam, 582 U. S. 218, 234, 137 S. Ct. 1744, 198 L. Ed. 2d 366 (2017).
To state a claim that the government violated the First Amendment through coercion of a third party, a plaintiff must plausibly allege conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff ’s speech. See 372 U. S., at 67-68, 83 S. Ct. 631, 9 L. Ed. 2d 584. Accepting the well-pleaded factual allegations in the complaint as true, the NRA plausibly alleged that Vullo violated the First Amendment by coercing DFS-regulated entities into disassociating with the NRA in order to punish or suppress the NRA’s gun-promotion advocacy.
Nothing in this case gives advocacy groups like the NRA a “right to absolute immunity from [government] investigation,” or a “right to disregard [state or federal] laws.” Patterson, 357 U. S., at 463, 78 S. Ct. 1163, 2 L. Ed. 2d 1488. Similarly, nothing here prevents government officials from forcefully condemning views with which they disagree. For those permissible actions, the Constitution “relies first and foremost on the ballot box, not on rules against viewpoint discrimination, to check the government when it speaks.” Shurtleff v. Boston, 596 U. S. 243, 252, 142 S. Ct. 1583, 212 L. Ed. 2d 621 (2022). Yet where, as here, a 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. Ultimately, the critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries.
For the reasons discussed above, the Court holds that the NRA plausibly alleged that Vullo violated the First Amendment by coercing DFS-regulated entities to terminate their business relationships with the NRA in order to punish or suppress the NRA’s advocacy.
