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Supreme Court justices appeared receptive Monday to National Rifle Association claims that a former New York state official violated its free-speech rights by pressuring banks and insurance companies to blacklist the group after the deadly school shooting in Parkland, Florida.
The NRA is suing former New York State Department of Financial Services superintendent Maria Vullo, who the group says used her regulatory power to economically punish the group for its gun-rights stance in violation of the First Amendment.
The Biden administration has backed some of the NRA’s claims and encouraged the high court to reverse a lower court decision to toss out the suit. The NRA is being represented by a group often on the other end of the political spectrum: The American Civil Liberties Union.
“This is a First Amendment case. All they need to do is to show that the desire to suppress speech was a motivating factor,” said Justice Samuel Alito. Other justices in the court’s majority conservative wing also appeared receptive to the NRA’s suit.
Vullo, for her part, said she rightly investigated NRA-endorsed insurance policies sometimes referred to as “murder insurance,” her attorney Neal Katyal said. She did speak out about the risks of doing business with gun groups, but didn’t exert any improper pressure on companies, he said.
Justice Ketanji Brown Jackson questioned whether lawsuits like the NRA’s could hobble regulators when interest groups are involved: “How do we avoid a world in which advocacy organizations are exempt from regulation?”
The justices also heard another case Monday about the government and free speech. They appeared to favor the Biden administration in that dispute with Republican-led states on how far the federal government can go to combat controversial social media posts on topics including COVID-19 and election security.
The two cases are different because the NRA claimed it faced a “specific, coercive threat,” said Ephraim McDowell, assistant to the solicitor general, said in response to a question from Chief Justice John Roberts.
The NRA says Vullo leveraged a state investigation into the legality of NRA-endorsed insurance products to pressure insurance companies, saying she would go easier on them if they cut ties with the NRA.
The group had been working with insurance companies to offer its members policies that covered losses caused by firearms, even when the insured person intentionally killed or hurt somebody.
Vullo says the products clearly violated state law, including by covering intentional acts and criminal defense costs, and the pressure claims are “implausible and insufficient.” The probe started before Parkland and the insurance providers ultimately paid multimillion-dollar fines.
She also sent out guidance letters to banks and insurance companies warning about the “reputational risks” of working with the NRA. The NRA says her words had significant sway because of her position and several companies cut ties with the group, costing it millions in revenue.
Vullo says the letters were evenhanded and sent at a time when companies all over the country decided on their own to distance themselves from the NRA after the 2018 school shooting in Parkland that left 17 people dead.
“If you let this complaint go forward, you will be saying to government regulators everywhere that you have to be careful about the speech you say,” her attorney Katyal said, addressing the justices. “It’s not just the NRA today, it’s every regulated party tomorrow, from TikTok on.”
A federal appeals court in New York sided with her, finding she was doing her job and had qualified immunity as a government official. The NRA appealed that ruling to the Supreme Court.
That’s when the Justice Department weighed in. The solicitor general said the NRA’s claims about leveraging the investigation were plausible enough that the suit shouldn’t have been tossed out by a lower court, but also cautioned against an overly broad ruling that could wrongly restrict officials’ free speech.
The ACLU, for its part, has said it opposes the NRA’s views in general but that the case could be a “playbook” for government officials to target other groups, including those on the other end of the ideological spectrum supporting abortion rights or environmental protections.
“Government officials are free to encourage people not to support political groups they oppose. What they can not do is use their regulatory might to add ‘or else’ to that request,” said ACLU Attorney David Cole.
The Supreme Court is expected to hand down a decision by late June.
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