A new cert petition in National Rifle Association v. Vullo asks the Supreme Court to address a circuit split over how to apply its decision in Bantam Books v. Sullivan and to explain for the first time the basis of its government-speech doctrine. In Vullo, the National Rifle Association (NRA) sued Andrew Cuomo and Maria Vullo, in their official capacities as Governor and Superintendent of the New York State Department of Financial Services, respectively. At bottom, the NRA alleged that Cuomo and Vullo used their offices to stifle protected political advocacy.

According to the complaint, these officials—particularly Vullo—sought to undermine the NRA by leveraging their regulatory power over the NRA’s financial backers. They never made explicit threats, but they implied that there would be adverse consequences for firms that worked with the NRA. First, Vullo opened investigations into three NRA insurance providers, arguing that they had violated various technical provisions of New York insurance law. After a mass shooting in Parkland, Florida, Vullo broadened her approach. In a meeting with senior executives in the insurance industry, she “presented [her] views on gun control and [her] desire to leverage [her] powers to combat the availability of firearms.” While she told these executives that they were in violation of technical insurance laws, she also asked them to sever their ties with the NRA and assist in Vullo’s campaign against gun groups. Vullo then issued guidance letters to all entities regulated by her office, asking them to consider the risks, including “reputational risks,” that come from providing services to groups like the NRA.

Multiple financial institutions severed their ties with the NRA following Vullo’s actions. The NRA’s corporate insurance carrier withdrew from renewal negotiations, making clear that it was “unwilling to renew coverage at any price.” Several banks also withdrew bids to work with the NRA. At least one executive told the NRA that his company wanted to continue working with the group, but he feared that the company would lose its license to operate in New York if it did so because of Vullo’s statements. The NRA faced significant difficulty in replacing these financial services.

The NRA relied on Bantam Books v. Sullivan to argue that Vullo violated its First Amendment rights by interfering in its relationships with financial services providers. In that case, the Supreme Court held that government officials violate the First Amendment when they create informal censorship regimes through implicit threats that chill protected expression. The NRA argued that Vullo chilled its protected expression by implicitly threatening the financial entities essential to its political advocacy, in violation of Bantam Books.

The Second Circuit rejected this argument. It noted that government actions can cross the line from advocacy into coercion but ruled Vullo’s actions did not do so. In reaching that conclusion, the court considered each of Vullo’s statements in isolation, looking first to her guidance letters, then separately to statements made behind closed doors. Because no action by itself crossed the line into coercion, the Second Circuit ruled that Vullo’s statements amounted to permissible government speech and dismissed the NRA’s First Amendment Complaint. As the ACLU argued in an amicus brief supporting the NRA, a decision of this nature gives “[p]ublic officials . . . a readymade playbook for abusing their regulatory power to harm disfavored advocacy groups without triggering judicial scrutiny.”

The NRA has now asked the United States Supreme Court to grant certiorari. If the Court takes the case, it will have the opportunity to consider at least two important First Amendment questions. First, the Court will have the chance to resolve a circuit split on how to apply Bantam Books. For decades following that case, lower courts conducted a holistic, context-specific inquiry into informal government censorship regimes. In other words, courts looked to government actions as a whole, instead of isolating specific statements in search of overt threats. Indeed, Bantam Books itself dealt with implicit threats against booksellers arising from a range of conduct by government officials.

But in only the last two years, the Tenth Circuit, and now the Second, have broken from this consensus among the lower federal courts to require a showing that government officials made explicit threats against protected conduct before they will find a First Amendment violation. The Second Circuit widened an already existing circuit split in deciding Vullo, and the case gives the Court the opportunity to clarify how lower courts should resolve disputes under Bantam Books.

The Tenth and Second Circuits may have applied the Bantam Books standard as they did because of confusion about the second issue presented by Vullo: government speech. The Second Circuit started its analysis of Vullo’s statements by noting that “two sets of free speech rights are implicated here.” In its view, not only did the NRA have a right to political advocacy, but Vullo had her own right to speak on matters of public concern, including by seeking to convince businesses to drop the NRA as a client as part of an effort that “favored gun control over gun promotion.”

While government officials certainly can speak on matters of public concern, whether they have an independent constitutional right to do so is less certain. Even if they have such a right, the notion that they can use it to chill private speech is suspect at best. As Justice Alito noted in a three-Justice concurrence last term, the Court has never explained the basis for its government-speech doctrine. In its government-speech cases to date, the Court has only considered scenarios involving one expressive conduit. Because only one message was at issue, the government and individuals could not both be speaking. So the cases hinged on whether governments or individuals spoke. If the Court ruled that the government spoke through a monument, license plate, or advertising campaign, then the government did not violate the First Amendment by making content-based distinctions. If individuals spoke through the same mediums, then governments were not permitted to discriminate based on content. The ability of governments to make content-based distinctions in these cases became known as the “government-speech doctrine.”

There are two competing theories for why officials don’t violate the Constitution in the government-speech cases, evidenced now by a split in the lower courts. The first, adopted by the Tenth and Second Circuits, is that governments themselves have First Amendment rights. Just like individuals don’t lose their free speech rights until they cross a line into explicit threats, neither do governments until they explicitly threaten protected activity. This formulation of the government-speech doctrine best explains the Tenth and Second Circuits’ reluctance to find First Amendment violations absent explicit threats from officials. The second theory, adopted by six other circuits, is that the government-speech doctrine is only concerned with the free speech rights of private citizens and not governments. Under that view, governments may make content-based decisions on speech, so long as those decisions don’t chill private expression. Under this view, courts will look at government actions as a whole and will often find First Amendment violations short of explicit threats.

The Supreme Court has never accepted or rejected either basis for the government-speech doctrine. But cases like Vullo present increasingly difficult questions for lower courts, where governments both speak and chill the free speech rights of individuals. They also present important questions about freedom of expression and the ability of government officials to silence disfavored political advocacy. If the Second Circuit’s conception of the government-speech doctrine stands, then government officials could have free rein to use their regulatory power against participants in political debates. So long as they don’t make overt threats against protected activity, then they’ll evade the prohibitions of Bantam Books. As David Rivkin and Andrew Grossman observed, they’ll in essence adopt the role of B rate mobsters in the marketplace of ideas, telling companies that support political opponents: “It’s a nice business you have here, would be a shame if anything happened to it.” All without violating the First Amendment.


The State of Montana filed an amicus brief on behalf of 18 states in support of certiorari in Vullo. 

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].