Opinion: Why the unanimous Supreme Court ruling for the NRA won’t cure the group’s troubles
Opinion by Stephen Gutowski
(CNN) — The Supreme Court unanimously sided with the National Rifle Association (NRA) in a First Amendment ruling handed down last week that could make it harder for state regulators to pressure advocacy groups. That’s not as surprising an outcome as it might sound at first, and it’s unlikely to reverse the downward spiral the embattled gun-rights group is caught in.
The NRA alleged Maria Vullo, the former superintendent of the New York Department of Financial Services (DFS), trampled on its First Amendment rights by coercing several insurance companies in the state to stop doing business with the organization. The group claimed the insurers agreed to pay a series of fines and drop the NRA because Vullo offered to let them off the hook for similar violations if they froze out gun-rights proponents. It said Vullo made these threats in a series of public letters and closed-door meetings.
Vullo, who served in former New York Gov. Andrew Cuomo’s administration, said her enforcement targeted an insurance product that is illegal in New York: third-party policies sold through the NRA that cover personal injury and criminal defense costs following the use of a firearm. The policies were dubbed “murder insurance” by their detractors. Her legal team said they were “disappointed by the court’s decision” but noted that a lower court that previously sided with her on a different legal basis may ultimately reaffirm that decision.
The NRA received backup from some surprising sources in this case. The first was the American Civil Liberties Union (ACLU), which agreed to represent the NRA despite backlash from some of its state chapters. The second was the United States Justice Department, which agreed Vullo’s alleged actions violated the NRA’s free speech rights. That’s where the Supreme Court ultimately came down as well.
“Vullo was free to criticize the NRA and pursue the conceded violations of New York insurance law,” Justice Sonia Sotomayor, the most senior liberal member of the court, wrote in the decision. “She could not wield her power, however, to threaten enforcement actions against DFS-regulated entities in order to punish or suppress the NRA’s gun-promotion advocacy. Because the complaint plausibly alleges that Vullo did just that, the Court holds that the NRA stated a First Amendment violation.”
Sotomayor’s wording hints at why there was so much agreement on the court and among groups that tend to be political rivals, and why the ruling isn’t the end of the line for this legal fight.
The court was not deciding the merits of the NRA’s claim. It wasn’t determining if what the group alleged actually happened. Instead, it was answering whether what the NRA alleged would be a First Amendment violation, if it is indeed true.
“Of course, discovery in this case might show that the allegations of coercion are false, or that certain actions should be understood differently in light of newly disclosed evidence,” the court wrote in a footnote. “At this stage, though, the Court must assume the well-pleaded factual allegations in the complaint are true.”
The case now heads back down to the Second Circuit Court of Appeals, which previously ruled in Vullo’s favor. And that court didn’t just find Vullo’s actions complied with the First Amendment. It found that, even if her actions were unconstitutional, she would be protected by qualified immunity.
“The Complaint’s factual allegations show that, far from acting irresponsibly, Vullo was doing her job in good faith,” the Second Circuit panel wrote in September 2022. “She oversaw an investigation into serious violations of New York insurance law and obtained substantial relief for the residents of New York. She used her office to address policy issues of concern to the public. Even assuming her actions were unlawful, and we do not believe they were, the unlawfulness was not apparent by any means.”
There is little reason to think the Second Circuit will budge on this point despite the Supreme Court’s unanimous rebuke of its First Amendment analysis. The federal courts have been generous in reading how far qualified immunity extends for government officials in recent years, according to a study by the Institute for Justice that looked at thousands of cases.
Additionally, the Supreme Court could have addressed the question of whether Vullo is covered by qualified immunity when taking up the case and decided against it.
Still, last week’s ruling fits into the NRA’s larger narrative about its multiple legal battles with New York officials. The group has repeatedly framed all of its court fights as part of “an unprecedented weaponization of power against the NRA and its speech” intended to “financially damage and politically suppress the NRA,” as its outside counsel said when the Supreme Court took up the case. The court concluded that the accusations of government overreaching were plausible enough to move the NRA’s case forward.
“[T]he 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,” Sotomayor wrote.
However, the officials at issue in this case aren’t the ones who brought the civil action where a jury concluded the NRA’s former leaders diverted millions of the charity’s money toward lavish personal expenses.
Even if the NRA wins in the lower court or the Supreme Court takes up another appeal, it won’t fix the major financial problems it faces. The group’s corruption scandal has sapped it of members and, therefore, resources. It remains the largest gun organization in America but has been forced to liquidate assets in response to a worsening downturn in contributions since its scandal broke into public view five years ago.
The defunct NRA gun-carry “insurance” program (intended to offer funds to members making self-defense claims in court) at the center of the controversy is unlikely to come back since aspects of it did violate New York law and the people behind the program have all left the group. It is also unlikely to recover much money from a judgment against Vullo, who is no longer in government.
The NRA will have to rely on internal reform efforts to arrest its decline, which it has recently taken steps toward. Positive PR from a unanimous Supreme Court ruling in its favor surely helps, but it’s unlikely to undo much of the self-inflicted reputational damage it suffered among its own membership. There’s a longer road ahead for that.
The-CNN-Wire
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