NRA v. Vullo Update: Second Circuit Weighs Reviving $100M+ Damages Claim

Readers of the blog may I recall that I was counsel of record for the NRA in the Supreme Court stage of NRA v. Vullo, and that the ACLU's David Cole presented oral argument before the Court. The Court unanimously held that the NRA stated a claim, and remanded the case to the Second Circuit as to qualified immunity; the Second Circuit held oral argument two weeks ago, and I thought some of you folks might be interested in what happened there. Bill Brewer (the NRA's lead lawyer on this) and his team and I therefore put together this quick post; I should note that my role here is an advocate and not as an impartial academic, but my sense was that our readers might still find this analysis interesting:

On Wednesday November 13, 2024, the Second Circuit held oral argument in National Rifle Association v. Vullo, No. 21-636, on the issue of qualified immunity. Commenced by the Brewer law firm on behalf of the National Rifle Association of America (NRA) in 2018, the Vullo lawsuit advances First Amendment claims against former New York Governor Andrew Cuomo and the state's former head financial regulator, Maria Vullo, over an alleged censorship scheme that coerced banks and insurers to blacklist the gun group.

Although some allegations in the lawsuit are disputed, Vullo never denied urging regulated firms to sever their services to the NRA, based explicitly on the NRA's pro-gun speech. In official regulatory guidance to the CEOs of entities she supervised, Vullo insisted that New York's banks and insurers owed "a commitment to society as a whole," which (in her view) disfavored letting gun-rights advocates have bank accounts or health insurance. Surprisingly, the Second Circuit seemed to countenance this reasoning in 2022, when it rejected the NRA's First Amendment claims—citing, among other things, a DEI-consulting whitepaper on corporate social responsibility.

We were joined by the American Civil Liberties Union (ACLU), as the NRA appealed this ruling to the United States Supreme Court for the NRA. In a rebuke from a unanimous Court, Justice Sonia Sotomayor revived the NRA's claims this past June, emphasizing decades of precedent that "[a] government official cannot coerce a private party to punish or suppress disfavored speech on her behalf." Moreover, the Court said, Vullo's alleged conduct struck at the heart of this prohibition. In light of the Court's guidance on the First Amendment merits of the NRA's allegations, Sotomayor added, the Second Circuit was free to reconsider the issue of qualified immunity, i.e., whether Vullo's alleged violations were such that the NRA should be able to sue her individually for damages.

The damages asserted in the case surpass $100 million—and Cuomo and Vullo could be on the hook for them (though, if damages are awarded, New York might indemnify them, depending on whether their conduct is deemed to be "intentional wrongdoing").

The Supreme Court's Vullo decision is already having a broad impact. In the recent election, Floridians voted on a measure to expand abortion rights (it ultimately failed to reach the required 60% threshold). In the run-up to the election, the General Counsel for the Florida Department of Public Health sent letters on the Department's letterhead to Florida TV stations, threatening enforcement action if the television stations continued showing advertisements in favor of abortion rights that he deemed to be a "sanitary nuisance" due to their supposed falsity. The proponents of the ballot measure sued, seeking a temporary restraining order. In a decision issued on October 17, District Judge Mark Walker relied on Vullo to hold that the General Counsel's enforcement threat violated the First Amendment, holding "[t]he present case bears all the hallmarks of unconstitutional coercion that the Supreme Court identified in … Vullo." This case illustrates that, while the immediate beneficiary of the Court's ruling was the NRA, the ruling will benefit advocates on all sides of the aisle, no matter their viewpoint.

On November 13, 2024, the Second Circuit held oral argument regarding the qualified immunity issue identified by the Supreme Court as potentially needing to be reconsidered in light of its ruling. At oral argument, Vullo's counsel emphasized portions of the appellate court's prior opinion, which looked unfavorably on the NRA's claims. But the Second Circuit panel appeared to rebuff that approach because, in its view, the earlier decision's framing of the relevant First Amendment issues was clearly rejected by the Supreme Court. Judge Denny Chin pressed Vullo's lawyer to distinguish the New York regulator's actions from those in Bantam Books—a 1963 precedent where the Court held that similar pressure tactics violated the First Amendment.

Vullo was represented at the Second Circuit oral argument by Will Havemann of Hogan Lovells, and the NRA was represented by Noel Francisco of Jones Day.