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."

Comments

[F.D. Wolf]

I see no problem with using your boss' statements as evidence, in a government context or otherwise. If the CEO of Acme, Inc. posted a Tweet saying he thought the company didn't have enough women, that would be competent evidence that a regional manager discriminated when he fired a man and replaced him with a woman. It's just evidence, like any other. It's not dispositive and can be rebutted.

In the immigration case I didn't think it mattered because the Congress has plenary power over immigration, which it had delegated to the President. In other words, since he was free to discriminate, it was irrelevant whether he did or not. The Court, of course, had to make it more complicated.

[Stephen Lathrop]

Is a convicted felon the best choice for the Republican Party's presidential candidate?

[Mr. Bumble]

Given the alternative, yes.

[David Nieporent]

Boy, you really must dislike Ron DeSantis.

[Mr. Bumble]

Keep your day job chasing ambulances.

[JesusHadBlondeHairBlueEyes]

No one cares about the judgements of the Right by the Left.

A Democrat judge, jury and prosecutor corruptly convicting Trump is 2024’s version of “YOU’RE A RACIST!” or “YOU’RE A HOMOPHOBE!” or “YOU’RE A TRANSPHOBE”.

The fact that Globalist Democrats are jailing political opposition and their supporters now just tells us how far into the Neo-Marxist revolution we are.

Next up for the Democrats: mass murdering millions of innocents. As history dictates.

[Sarcastr0]

I guess you should leave. Or at least drop off the grid so the leftist truth and reconciliation squads can't find you.

[JesusHadBlondeHairBlueEyes]

Why would I do that?

I'm going to guess the skill set of the Leftist Truth and Reconciliation squads are going to fall somewhere building $500M diverse piers to nowhere and pink haired fat ugly trannies like at the Antifa terrorist events who cry when you point out their male pattern baldness.

[Sarcastr0]

So the left is simultaneously going to murder millions of innocents and also utterly weak and ridiculous.

Would you say that by a continuous shifting of rhetorical focus, the lift is at the same time too strong and too weak?

[JesusHadBlondeHairBlueEyes]

There is no contradiction.

The Marxists can mass murder tens or hundreds of millions while at the same time I wouldn’t personally fear anything.

I’ll just hang a Gadsen Flag outfront. Any of the Pentagon or DOJ homos come by they’ll be too busy crying and taking mental health breaks to do anything.

[Estragon]

“The followers must feel humiliated by the ostentatious wealth and force of their enemies […] However, the followers must be convinced that they can overwhelm the enemies. Thus, by a continuous shifting of rhetorical focus, the enemies are at the same time too strong and too weak.”

-Umberto Eco

[Magister]

Now where did I just hear that? Must have been an Eco chamber.

[damikesc]

No. He's the best choice for the country, period.

[Nige]

Representing the white-collar felons, rapists and fraudsters that are the real heart of the real America.

[Rev. Arthur L. Kirkland]

Don’t forget the half-educated bigots, the gullible evangelicals, the downscale right-wing rubes, and the rural street pill-gobblers.

[Joe_dallas]

As posted elsewhere - Attorneys general in states like Texas, Florida, South Dakota, etc., should look into whether Biden’s taking of bribes or other actions could qualify as crimes under their states’ laws. After all, if Alvin Bragg can prosecute Donald Trump for federal campaign finance violations that he didn’t commit, another state official can likely find grounds to prosecute Biden for bribery, which he did commit.

[David Nieporent]

You're as honest about politics as you are about science.

[Sarcastr0]

Joe would like to outsource his tantrum to someone with actual authority.

[apedad]

"Attorneys general in states like Texas, Florida, South Dakota, etc., should look into whether Biden’s taking of bribes or other actions could qualify as crimes under their states’ laws."

YES! Of course they should investigate any potential crimes.

Just like every court case about the previous election showed NOTHING criminal occurred.

[Nige]

It's like your brain can't compute the difference between something for which there is evidence and something for which there is no evidence. Of course investigate if there's evidence!

[Don Nico]

IF the R party had even an ounce of sense, it would find a way to rule Trump ineligible and nominate Haley.
But I am not holding my breath

[Sarcastr0]

Trump has a sufficient cult of personality around him, the GOP spiking Trump would be a surefire way for them to lose.

[Don Nico]

Unfortunately, you are probably correct

[Don Nico]

I guess that I am forced to vote for RFK.

[Ed Grinberg]

What a joke...

[Rev. Arthur L. Kirkland]

The misfits’ favorite!

[Krayt]

Not necessarily, especially given the "git 'im!" context, but he's a terrible choice for the country because he looks fondly on Putin.

[Nige]

You know, it's not actually that weird or unusual for politicians to be convicted of crimes.

[Bob from Ohio]

"best choice for the Republican Party’s presidential candidate?"

You don't get a say.

[Randal]

It would be one thing if you guys were like, yeah, he's a con man. A con man is what we want for reasons X Y and Z.

[Please, Daivd, Seek Help]

I appreciate the general sentiment that there is a subtle "line from persuasion to coercion", but I don't understand how that applies to your situation, which is that an elected official called you on the phone in order to tell you you're a dork.

You did not change your behaviour in any way; it didn't impact your day. You made a joke about how your parents were proud of you for getting a phone call from him. You got to blog about it, multiple times now. You haven't changed your position on gun politics or on, one presumes, representing weirdos in court briefings.

So where's the coercion? This seems like thin-skinned snowflake bullshit "The Man Said Mean Words About Me, Make Him Stop!!!" Facts don't care about your feelings.

[loki13]

"The Vullo decision was unanimous ... To Justice Jackson's dissent ..."

Again, basic error. Justice Jackson did not dissent, it was a unanimous decision.

Justice Jackson had a concurrence. Just like Justice Gorsuch.

(Jackson's concurrence is worth a read, as it sets forth an interesting question and analysis.)

[Mr. Bumble]

Link?

[SMP0328]

https://www.law.cornell.edu/supremecourt/text/22-842#writing-22-842_CONCUR_6

[Mr. Bumble]

Thanks.

[ReaderY]

There’s an obvious difference. The NRA has constitutional rights, so intent matters. But extraterritorial aliens have no constitutional right to enter the country. So intent simply doesn’t matter. So far as the constitution is concerned, they can be excluded for any reason or no reason.

Since the two cases have completely different legal bases, the fact that tweets are relevant to the outcome of this case doesn’t say anything about their relevance to the outcome of immigration and visa cases.

There’s a difference between running a Supreme Court gossip column and conducting legal analysis.

[loki13]

"There’s a difference between running a Supreme Court gossip column and conducting legal analysis."

I agree, but there's also a similarity.

To channel a Jeopardy question ....

"Alex*, what are two things that Josh Blackman does poorly?"

*Yeah, I know. But it will always be Alex Trebek to me.

[Dan Schiavetta]

I’m from the Art Fleming generation.

[loki13]

... nice!

[rloquitur]

Prosecute Vullo. 18 USC 242.

[loki13]

"How do I say I'm not a serious person without saying I'm not a serious person?"

[ducksalad (5/30 bad, really!)]

What's unserious about it?

At least in theory state officials can get federally prosecuted for intentionally violating someone's civil liberties. In practice it's very rare but the egregious cases do sometimes get addressed, and it should happen more often.

Here we've got a 9-0 ruling that what she did was unconstitutional. It's not a borderline, tendentious, politicized thing: even the most liberal justices on the SC, who agree with Vullo on guns, agree that she violated freedom of speech.

[loki13]

If it has to be explained to you, then you're not really paying attention.

[Bob from Ohio]

"What’s unserious about it?"

I believe, in his snitty and condescending way, he is saying that the decision was not a merits decision that she violated the NRA's rights. It just enables the NRA to continue the litigation.

[Brett Bellmore]

Right. Now, after the NRA wins a merits decision… It’s “under the color of law” time.

As I’ve written before, there is widespread resistance to Bruen, and it’s only going to keep getting worse until the officials heading up that resistance discover that they face personal liability.

The best way to achieve that discovery is for the Court to announce that the 2nd amendment precedents are now clear enough that immunity doesn't apply anymore.

[loki13]

Does anyone actually want to understand the case that the NRA brought, and then try to understand the standards used by the DOJ and the elements that are required for an prosecution under 18 USC 242?

No?

I didn't think so. As a general rule, mewling about punishing people is neither productive nor correct. It's kind of like those who immediately say, "It must be RICO!"

[Brett Bellmore]

Forget relying on the DOJ. I'd actually go with U.S. Code § 1983 - Civil action for deprivation of rights:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia."

[loki13]

Sigh.

Tell me..... how do you think the NRA is bringing the First Amendment claims? Do you think they just said, "FIRST AMENDMENT FTW!"

How do private parties allege violations of their constitutional rights by state actors and get damages? Everything from police officers abusing their authoritah to schools hatin' on your t-shirts?

In other words, after all of this, did you really just tell me that you would go with the claim that was actually brought?

Why do I even bother?

[TheAmazingEmu]

Justice Jackson wrote a concurring opinion, joining the majority in full. She wrote separately to emphasize that first amendment retaliation was an issue poorly explored by the court below and the parties might want to flesh that out more. She also wrote, not about the line between persuasion and coercion, but that the coercion must be in order to accomplish a violation of the First Amendment through indirect means (i.e., the coercion itself doesn't violate the First Amendment, just the results of that coercion).

Just pointing that out for others who didn't read the opinion but are relying on Prof. Blackman's description.

[SMP0328]

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

Fixed it here, because Josh hasn't fixed it in the article.

[loki13]

Fixing obvious errors in one post would take away from the precious time he needs to create new errors in the next post.