A legal battle before the Supreme Court on Monday over free speech and political retaliation has made strange bedfellows of the American Civil Liberties Union and the National Rifle Association.
The typically left-leaning ACLU is representing the pro-gun NRA in its lawsuit against Maria Vullo, the former superintendent of the New York Department of Financial Services. The NRA claims Ms. Vullo pushed financial firms to deny services because of its gun rights advocacy.
“While the ACLU disagrees with the NRA’s advocacy, we are proud to defend its right to speak,” said David Cole, legal director of the ACLU who will argue the case on behalf of the NRA.
“Public officials cannot be allowed to abuse their regulatory powers to blacklist an organization just because they oppose its political views. If New York is allowed to do this to the NRA, it will provide a playbook for other state officials to abuse their authority to target groups they don’t like,” Mr. Cole said in a press release.
Josh Blackman, a professor at South Texas College of Law, said in past years the ACLU has been inconsistent in its stance on free speech matters.
“But here, the ACLU is willing to stand up for the speech of those they disagree with — the NRA. (The ACLU would basically read the Second Amendment out of the Bill of Rights),” Mr. Blackman said in an email.
In the wake of the 2018 mass shooting at a high school in Parkland, Florida, Ms. Vullo said that financial services companies should consider whether they should serve pro-gun organizations like the National Rifle Association.
New York regulators opened investigations into certain insurance companies that were in business with NRA members, according to the gun advocacy group’s filing.
The NRA sued, saying Ms. Vullo was exercising government authority against its free speech rights.
A unanimous three-judge panel of the 2nd U.S. Circuit Court of Appeals ruled in favor of Ms. Vullo, citing qualified immunity, and the NRA took the case to the Supreme Court.
It took at least four justices to vote in favor of reviewing the lower court’s decision.
In its filing for the NRA, the ACLU said Ms. Vullo openly targeted the NRA for its gun-related advocacy.
“Vullo issued formal guidance letters and a press release urging every bank and insurance company in New York State to ‘sever their ties’ with ‘the NRA or similar gun promotion organizations,’” the filing reads. “When the DFS Superintendent uses that authority to pressure financial institutions to blacklist an organization because she opposes the organization’s political speech, she violates the First Amendment.”
Ms. Vullo’s lawyer, Neal Katyal of the Hogan Lovells law firm, previously told The Washington Times in January that the legal battle focuses on regulatory law.
“This case carries significant implications for the future of American regulatory law. At its core, this case asks a simple question: ‘Should the government be allowed to govern?’” Mr. Katyal said in a statement. “Incredibly, the NRA asks the Court to empower virtually limitless claims against any government official based on an extreme and unworkable interpretation of the First Amendment. Their position runs counter to a unanimous panel of the Second Circuit and decades of well-established Supreme Court precedent.”
In her brief, Ms. Vullo argued the case is about allowing regulators to speak on controversial issues and her focus was on regulating conduct, not speech.
“It ‘is not easy to imagine how government could function’ if public officials lacked the freedom to express their views,” her filing reads. “Yet the NRA seeks to transform a government official’s statements expressing her views on a matter of public concern, and her acts enforcing New York law against parties who concededly violated it, into a First Amendment violation.”
First Amendment scholars have lined up for the NRA and for Ms. Vullo, creating a juxtaposition in friend-of-the-court filings.
Six law professors led by attorney Lisa Blatt, a seasoned Supreme Court litigator, have filed a brief supporting the NRA, saying Ms. Vullo “crossed every recognized line by a country mile.”
“Here, Vullo, a state official, sought to punish the NRA for its speech, threatening insurance companies with legal sanctions unless they ended their business dealings with the NRA. That conduct plainly constitutes impermissible government coercion,” the group said.
Six other law professors led by attorney Matteo Godi have filed a brief in favor of Ms. Vullo, arguing that her speech was within her government regulatory authority.
“[Ms. Vullo] — while acting within the scope of her authority and investigating bona fide violations of the law — engaged in legitimate government speech to express the views of the state administration she represented on salient political issues,” that group said.
Mr. Blackman said the First Amendment scholars supporting Ms. Vullo tend to be more progressive and “seek to use the power of the state to advance certain social goals.”
Adam Feldman, Supreme Court scholar and creator of the EmpiricalSCOTUS blog, said both First Amendment groups happen to be “stellar.”
“This particular issue splits First Amendment scholars. Since speech cases do not tend to divide the Court along ideological lines […], you get different perspectives for and against speech in such cases,” Mr. Feldman said in an email.
“Also, generally perspective matters in these cases as well. Here government speech opposes organizational speech. Both sides could be characterized as pro-speech even though the NRA has a more prototypic speech argument.”
The case is NRA v. Vullo. A decision is expected by the end of June.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
Please read our comment policy before commenting.