NRA v. Vullo and Trump v. Hawaii

Citing Governor Cuomo's tweets harkens back to, and perhaps foreshadows, litigation against President Trump.

The Supreme Court's unanimous decision in NRA v. Vullo was not surprising. It is also not surprising that Chief Justice Roberts assigned the case to Justice Sotomayor. The Chief loves optics, and nothing screams bipartisanship more than an Obama nominee ruling in favor of the NRA against her former home state. Indeed, if I had to guess, this was not Justice Sotomayor's preferred assignment--she probably would have rather written an ERISA opinion. But there was one feature of the majority decision that likely gave Justice Sotomayor some delayed satisfaction.

Flash back to Trump v. Hawaii. One of the main issues in that case was to what extent should the courts consider tweets from candidate- and President-Trump that related to the travel ban. Justice Sotomayor's dissent, which I heard her read in Court, focused at great length on those social media postings. She could not understand how the majority could turn a blind eye to those tweets. Chief Justice Roberts, as he often does, simply made up a test that allowed him to acknowledge the tweets, but find they were not dispositive. But he overruled Korematsu, so just look the other way!

Fast forward to NRA v. Vullo, another First Amendment case with allegations of improper motivation. Maria Vullo, the only defendant left standing, was the former superintendent of the New York Department of Financial Services (DFS). Former-Governor Andrew Cuomo was also sued, and was later dismissed from the case. But you wouldn't know it from Justice Sotomayor's opinion. She references Cuomo over and over again, including his social media postings.

On February 27, Vullo met with senior executives at Lloyd's. There, speaking on behalf of DFS and then-Governor Andrew Cuomo, Vullo "presented [their] views on gun control and their desire to leverage their powers to combat the availability of firearms, including specifically by weakening the NRA." ….

The same day that DFS issued the Guidance Letters, Vullo and Governor Cuomo issued a joint press release that echoed many of the letters' statements. The press release included a quote from Vullo "'urg[ing] all insurance companies and banks doing business in New York'" to join those"'that have already discontinued their arrangements with the NRA.'" ….

The press release cited Chubb's decision to stop underwriting Carry Guard as an example to emulate. The next day, Cuomo tweeted: "'The NRA is an extremist organization. I urge companies in New York State to revisit any ties they have to the NRA and consider their reputations, and responsibility to the public.'" ….

A follow-on tweet from Cuomo reaffirmed the message: Businesses in New York should "'consider their reputations'" and "'revisit any ties they have to the NRA,'" which he called "'an extremist organization.'" ….

Vullo's boss, Governor Cuomo, also urged businesses to disassociate with the NRA to put the organization "into financial jeopardy" and "shut them down." App. 21 (Aug. 3, 2018, tweet). …

Why talk so much about Cuomo when he wasn't even a party? Weren't Vullo's actions sufficient to clear the Iqbal bar? I had this sinking feeling that Justice Sotomayor was laying the groundwork for some future Trump litigation, where the chief executive's social media posts can be used to taint the action taken by some cabinet member. Again, it is almost a given that people would allege that President Trump and his administration will engage in some sort of retaliatory or coercive actions against protected speech. Now, there is a clear precedent on point. The Vullo decision was unanimous, so I'm sure the Fourth, Ninth, and D.C. Circuits will cite it with glee. (Remember, if Trump wins, everyone switches sides for forum shopping.)

I, for one, was on the receiving end of such a phone call from Governor Cuomo. To Justice Jackson's dissent, I experienced first-hand the subtle "line from persuasion to coercion."