NRA v. Vullo and the Unanimous Rule Against Government Jawboning

Count the votes. Nine to nothing. The Court's most liberal members and its most conservative members, the American Civil Liberties Union on one side of the lectern and the National Rifle Association on the other side of the caption, all pointing the same direction. In an age when the Supreme Court is described as a partisan arena, here is a ruling that should be framed and hung in every government office in the country.

The case is National Rifle Association of America v. Vullo, decided on May 30, 2024. It is short, clear and unanimous, and it states a principle that does not care who is speaking: a government official may not use the power of her office to punish or suppress speech she dislikes by squeezing the private businesses that deal with the speaker. This post lays out the facts, the holding, the precedent it rests on, the line between persuasion and coercion, and what the rule means for pressure on platforms. I will do it the way the subject deserves, in order and with numbered points.

Defining the terms

Jawboning. Informal pressure by officials on private parties, exercised through speeches, letters, meetings and hints rather than laws or formal orders. The word suggests persuasion by talking. The legal question is when talking becomes a threat.

Coercion. In this context, conduct that a reasonable recipient would understand as a threat of adverse government action unless the recipient complies. Coercion does not require an explicit command. It can be implied.

Persuasion. The government's legitimate use of its own voice: criticizing, advocating, urging. Officials may say what they think. The First Amendment does not make them mute.

The case lives on the boundary between the last two.

The facts

The events began after the school shooting in Parkland, Florida, in February 2018. Public debate about firearms intensified, and, as the NRA alleged, officials in New York saw an opportunity to act against the organization.

The defendant, Maria Vullo, was the Superintendent of the New York State Department of Financial Services, the state regulator of insurers and many banks. That position gave her real power: she could investigate, impose penalties and affect the licenses and business of the companies she regulated.

The NRA, which had endorsed insurance programs for its members, including a program marketed as Carry Guard, alleged the following. In February 2018 Vullo met with executives of Lloyd's of London, a major insurer, and made clear that she was concerned about the insurer's dealings with the NRA. According to the allegations, she indicated that she was more inclined to overlook other regulatory infractions in unrelated insurance lines if Lloyd's agreed to stop underwriting NRA-affiliated programs. Shortly after, her department issued two guidance letters, in April 2018, to insurers and banks in the state. The letters encouraged those companies to consider the "reputational risks" of doing business with gun-promotion organizations, a category in which the NRA was prominent. A press release from Vullo and Governor Cuomo accompanied the guidance and encouraged businesses to end their NRA arrangements.

Insurers and banks began ending relationships with the NRA. The department also entered consent decrees with insurers (Lockton, Chubb and Lloyd's) that addressed the NRA-affiliated programs, in which the insurers admitted violations and agreed not to offer NRA-endorsed programs.

The NRA sued, alleging that Vullo had violated the First Amendment by coercing regulated entities to punish the NRA for its advocacy.

I should be clear about the procedural posture, because it matters. The case reached the Supreme Court on the pleadings, before any trial. That means the Court assumed the NRA's factual allegations were true and asked whether, if they were, a claim existed. The Court did not find as fact that Vullo did everything alleged. It held that the allegations were enough to state a claim.

The lower courts

A federal district court allowed the First Amendment claim against Vullo to go forward. The Second Circuit Court of Appeals reversed. It reasoned that Vullo's conduct was a permissible exercise of government speech and regulatory discretion, and that the alleged threats were not sufficiently clear to count as coercion. It also held that Vullo would be protected by qualified immunity in any event. The NRA appealed.

The holding: nine justices, one opinion

Justice Sonia Sotomayor wrote the opinion for a unanimous Court. The holding in one sentence: the NRA plausibly alleged that Vullo violated the First Amendment by coercing regulated entities to punish or suppress the NRA's speech.

The reasoning ran in steps, and I will number them.

1. The First Amendment bars indirect suppression too. A government official cannot do indirectly what she is forbidden to do directly. If the state may not punish the NRA for its advocacy, it may not reach the same end by threatening the NRA's insurers and banks.
2. Persuasion is permitted. Coercion is not. The Court reaffirmed that government officials are free to criticize and to advocate for their own views, including views about private organizations. Vullo was entitled to say she thought the NRA's positions were harmful. But a government official may not wield her regulatory authority to compel a private party to silence or penalize a disfavored speaker.
3. The test looks at the whole picture. The Court noted factors the Second Circuit itself had identified for telling coercion from persuasion: the speaker's word choice and tone, whether the speaker had regulatory authority, whether the speech was perceived as a threat, and whether it referred to adverse consequences. Applying them, the allegations described an official with direct regulatory power over the recipients, who linked a request about the NRA to the possibility of enforcement in other areas.
4. Reading the allegations fairly, a claim exists. The Court concluded that the Second Circuit had erred by analyzing the alleged conduct piece by piece, rather than as a whole, and by treating the conduct as simple government speech.
5. The case goes back. The Court vacated the Second Circuit's judgment and sent the case back. It did not resolve the question of qualified immunity, which the lower court can consider, so the officials' personal exposure was left open.

Several justices wrote separately. Justice Gorsuch joined the opinion in full and wrote separately to stress that multifactor tests are only guideposts, and that the central question is whether the conduct could reasonably be understood as a threat of adverse government action aimed at punishing or suppressing speech. Justice Jackson agreed with the holding but stressed that coercion alone does not violate the First Amendment unless it harms the speaker's rights, and suggested that retaliation and censorship theories be analyzed separately on remand. I commend both to your reading. The central opinion, though, was joined by all nine, and that unanimity is the point.

The 1963 precedent

Vullo did not invent its rule. It rests on a case from 1963, Bantam Books, Inc. v. Sullivan. In that case, a Rhode Island commission, the Commission to Encourage Morality in Youth, sent notices to book distributors listing publications it considered objectionable and asking them to stop selling them, with a note that the Attorney General would act in cases of non-compliance. The commission had no power to ban books. It simply made clear that the distributor's life would be easier if it stopped carrying them. The distributor stopped. The Supreme Court held that the commission's scheme was a system of informal censorship that violated the First Amendment, because the threat of official action did the work that a formal ban could not lawfully do.

Put Bantam Books beside Vullo and the pattern appears. In both cases, officials had no formal power to silence the speaker. In both, they used their authority over an intermediary to do it. In both, the intermediary complied. And in both, the Court asked what the words and the circumstances would convey to the recipient, not what the officials said they meant. The lesson across sixty years is steady: a threat does not need to be explicit to be a threat.

The line between persuasion and coercion

This is the hard part, and I will not pretend it is simple. Officials speak all the time. A mayor criticizes a newspaper. A senator calls on a company to change a policy. A president urges a business to reconsider. None of that is unconstitutional, and a rule that made it so would strangle the public debate that the First Amendment exists to protect.

So what separates the two? Reading Vullo and Bantam Books together, I would put it as follows.

• Authority. Does the official control something the recipient needs, such as a license, a contract, an investigation or a regulatory decision? A private citizen's criticism carries no threat. A regulator's criticism may.
• Linkage. Does the message tie compliance to a benefit or non-compliance to a cost? In Vullo, the allegation was that leniency on other violations was offered in exchange for ending the NRA relationship.
• Tone. Is the message an invitation to consider, or a demand with a deadline and a follow-up? Repeated requests for confirmation of compliance suggest the latter.
• Perception. How would a reasonable recipient read it? Companies are not naive, and they know what a regulator's interest means.
• Target. Is the pressure aimed at the speaker's viewpoint, as opposed to unlawful conduct? Enforcing a generally applicable law against a violator is not censorship. Enforcing it selectively against a disfavored voice is.

None of these factors is decisive alone. Together they give courts and citizens a way to separate the legitimate use of an official's voice from the illegitimate use of her power.

The steelman: why the other side worried

Let me state the strongest version of the opposing concern. The state of New York said, in effect, that it has a legitimate interest in regulating the safety and soundness of the institutions it supervises, and that reputational risk is a real concept in insurance and banking. A regulator who warns firms that a controversial relationship may hurt them is, on this account, doing her job. If every such warning were a First Amendment violation, regulators could not speak candidly about risk.

That worry has force, and the Court acknowledged it. It is why the opinion repeatedly distinguishes between a regulator's legitimate speech and her coercive conduct. A warning about risk, given in general terms, to the industry, with no linkage to enforcement, is not the problem. The problem alleged was that the warning was aimed at one advocacy group, was paired with a suggestion that other violations might be overlooked, and was accompanied by public praise for those who cut ties. A regulator who acts that way is not managing risk. She is picking a side.

Why conservatives should embrace a ruling for the NRA, and why it is not about the NRA

Here is the argument I would press hardest. The principle in Vullo is viewpoint-neutral. If a state official may not pressure banks to drop an organization she dislikes, then no official may pressure banks to drop an organization on the other side. The rule protects an environmental group, a union, a church, a civil rights organization and a gun-rights association alike. That is the reason the American Civil Liberties Union, no friend of the NRA's political program, represented the NRA in this case. The ACLU understood that a rule that protects only popular speakers is not a rule.

The point is not hypothetical for conservatives. The tools of financial and regulatory pressure are available to any administration and any state. A rule against them that is built on the First Amendment cannot be flipped on or off depending on who holds office. Conservatives who cheer Vullo should be prepared to apply it when the target is someone they dislike, and those who criticize it should reflect that they may one day need it.

It also connects to other cases in which conservatives defended speakers they found distasteful; read Snyder v. Phelps and the Hardest Free Speech Case Conservatives Ever Defended and Hustler v. Falwell Protected Parody, and Conservatives Benefit From It Now for the same principle in different clothes. And on the same theme, Matal v. Tam and the Government's Lost Power to Ban Offensive Trademarks shows the Court refusing to let government decide which speech is too offensive to register.

How the rule applies to pressure on platforms

This is where the case becomes important for the digital age. A social media platform is an intermediary, a private company that hosts other people's speech. If officials with regulatory or legislative power over the platform press it to remove or demote a disfavored speaker, the structure is the same as in Vullo: an official, an intermediary and a speaker whose voice is suppressed by the intermediary's compliance.

Applying the five factors to a hypothetical (and I label it as such): suppose an agency official with enforcement authority over a company emails the company daily, demanding removal of specific posts and asking for confirmation each time. Suppose the emails mention possible consequences for failing to act. Suppose the company acts on the demands. That fact pattern looks a great deal like coercion under Vullo, whichever side's posts are at issue.

But facts matter, and the actual cases are more complicated. In Murthy v. Missouri, decided less than a month later, the Court dismissed the challenge on standing grounds because the plaintiffs had not shown a traceable link between particular government requests and particular moderation decisions. I discuss that in Murthy v. Missouri Lost on Standing, Yet the Record It Built Still Stands. The two decisions work together. Vullo states the rule against coercion. Murthy shows how demanding the proof of coercion and causation will be.

A caution in the other direction, too. Platforms are not mere conduits. They have their own First Amendment interests in deciding what to host, which I explore in Moody v. NetChoice and the Unfinished Question of Who Owns the Feed. A platform that moderates on its own judgment is exercising a right. The constitutional problem arises only when the government is the one pulling the strings. That is exactly the line Vullo draws.

What reformers can do

The rule is established, but rules need machinery. Here is a short list of reforms that follow naturally.

1. Disclosure. Require agencies to log and publish their requests to private companies about lawful speech, so the pattern is visible and plaintiffs can prove it.
2. Written policies. Direct agencies to adopt internal rules forbidding any official from linking regulatory leniency or enforcement to a private party's decisions about a speaker.
3. Training. Teach regulators the difference between stating a view and applying pressure, using the Vullo factors.
4. Oversight. Have legislative committees review contacts between agencies and platforms, banks and insurers where speech is involved.

None of these requires a court. All of them can be done by legislatures and executives who take the First Amendment seriously.

The case in brief

1. NRA v. Vullo (May 30, 2024) was decided 9-0, with Justice Sotomayor writing, and held that the NRA plausibly alleged unconstitutional coercion by a New York regulator.
2. The rule is that officials may persuade but may not use regulatory power to coerce private parties into punishing or suppressing disfavored speech.
3. It rests on Bantam Books v. Sullivan (1963), which condemned informal censorship by threat, and it applies the same tests of authority, linkage, tone and perception.
4. The principle is viewpoint-neutral, so it protects every speaker, which is why conservatives and the ACLU found themselves on the same side.
5. Applied to platforms, it forbids government from directing moderation through pressure, while leaving platforms free to moderate on their own judgment.

What you can do: read the Vullo opinion on the Supreme Court's website, then ask your state legislators whether your state's regulators are bound by a written policy against pressuring businesses over a customer's lawful speech.