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In 2018, the NRA sued Maria Vullo, who was then the superintendent of the New York Department of Financial Services (DFS), after she leveraged her regulatory power over banks and insurance companies to coerce them into denying basic financial services to the NRA and, in Vullo鈥檚 own words, 鈥渙ther gun promotion鈥� groups. Openly claiming that she sought to penalize the NRA because she disapproved of its political advocacy, the NRA鈥檚 complaint alleges that Vullo made good on those threats by issuing formal guidance to every bank and insurance company in New York urging them to 鈥渟ever ties鈥� with the NRA, promising lenience to certain insurers if they would stop doing business with the NRA, and imposing consent orders that required the group鈥檚 three principal 鈥渁ffinity insurance鈥� providers never to provide such insurance to the NRA again.

A district court ruled that the NRA鈥檚 allegations that Vullo used threats and inducements to coerce the entities she regulates to cut ties with the NRA were sufficient to claim that she had violated the NRA鈥檚 First Amendment right to free expression. But the U.S. Court of Appeals for the Second Circuit reversed the lower court鈥檚 decision, essentially finding that Vullo had merely engaged in business as usual, not a campaign of unconstitutional censorship. It also held that Vullo鈥檚 actions were justified because the NRA鈥檚 views were broadly unpopular in New York鈥搒uggesting regulators could punish controversial or disfavored speech precisely because it is unpopular. That reasoning strikes at the very heart of the First Amendment.

The Supreme Court will now determine whether the First Amendment allows government regulators, like Vullo, to threaten retaliation against businesses that work with a controversial advocacy organization.

In its opening brief, the ACLU has urged the Supreme Court to apply the precedent it set in 1963 in Bantam Books v. Sullivan, which established that informal, indirect efforts by government officials to suppress or penalize speech by putting pressure on third-party intermediaries violate the First Amendment just as much as direct censorship, and to reject the Second Circuit鈥檚 implication that regulators can rely on the unpopularity of speech as a basis for suppressing it. By rejecting the Second Circuit鈥檚 dangerous reasoning in this case, and strengthening the protections created in Bantam Books more than 60 years ago, the Supreme Court now has an opportunity to protect the market of ideas by safeguarding all advocacy groups from government overreach.