Today, a group of 18 attorneys general from across the United States have come together to support the National Rifle Association (NRA) in its legal battle against the state of New York. The attorneys general filed an amicus brief with the Supreme Court of the United States, contending that First Amendment violations by New York officials warranted its review. On Feb. 7, the NRA petitioned the U.S. Supreme Court to review a controversial judgment issued by the United States Court of Appeals for the Second Circuit in NRA v. Maria Vullo. the former superintendent of New York's Department of Financial Services (DFS).  Attorney General Austin Knudsen of Montana led the coalition in support of that petition.

The suit alleges in detail that Vullo and other New York state officials improperly targeted the NRA by threatening and coercing banks and insurance companies to sever ties with the organization.  The NRA contends that these actions were designed to shut it down in retaliation for its gun rights advocacy, and thus violated its First Amendment rights to free speech and association.

“The Second Circuit’s decision gives government officials license to financially cripple their political opponents, or otherwise stifle their protected speech – whether those rivals advocate for school choice, abortion rights, religious liberty, environmental protections, or any other politically salient issue,” the attorneys general said in the brief. 

In a news release, the attorneys general highlight the fact that the Court of Appeals split from the consensus approach of at least six federal circuits when issuing their decision. In the six decades following the Supreme Court’s seminal decision in this area, Bantam Books, Inc. v. Sullivan, federal courts have looked through forms and to the substance of a government official’s words and conduct to determine if the official threatened to use coercive state power to crack down on disfavored speech. But in this case, the Second Circuit flipped this approach on its head, effectively requiring a government official to explicitly threatened adverse consequences before any First Amendment violation occurs, even if any interested party would understand a state official’s words or conduct as an implied threat.

The attorneys general also argue that the lower court’s decision in the case erodes First Amendment safeguards for private political speech and paves the way for the government to suppress speech it doesn’t agree with or doesn’t like.

“If the Second Circuit’s decision is left standing, it’s not difficult to imagine government officials employing similar tactics to stifle disfavored speakers. Whether the method of choice is to target financial institutions that advocacy groups depend on to engage in fulsome political advocacy…or simply to target private organizations that host events for such groups, the path forward is clearly marked,” the attorneys general wrote. “And if this Court doesn’t intervene to shut down that path, ‘where would such official bullying end …?’”

The attorneys general who signed the brief come from a diverse range of states, including Alabama, Arkansas, Georgia, Iowa, Kansas, Kentucky, Louisiana, Missouri, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming.

Thus far, the ACLU, noted legal and business scholars, and the Foundation for Individual Rights and Expression have filed briefs in support of the NRA.  The case and the outcome will be closely watched by those who value the First Amendment and the freedoms it protects.