Paul, Weiss Files Supreme Court Amicus Brief in First Amendment Retaliation Case

Paul, Weiss filed an amicus brief on behalf of several First Amendment scholars in support of Maria Vullo, the former head of New York’s financial regulator, in the upcoming Supreme Court case National Rifle Association of America v. Vullo. The case raises the question of whether Vullo’s statements advising companies to consider their relationships with the National Rifle Association following the 2018 mass shooting in Parkland, Florida, amount to retaliation in violation of the First Amendment. Our brief argues that a claim under Section 1983 that government speech amounts to First Amendment retaliation cannot be pleaded through conclusory and threadbare accusations of coercion.

The case arose after Vullo, then the Superintendent of the New York State Department of Financial Services (DFS), began an investigation in October 2017—following a referral from the New York Country District Attorney’s Office—into insurance companies that underwrote and administered Carry Guard, an affinity insurance program marketed by the NRA to its members. That program, the investigation revealed, violated New York law because it insured against intentional, reckless and criminally negligent acts with a firearm; the investigation also revealed that the NRA lacked the required license to market affinity policies. The investigation resulted in various consent decrees, including with the NRA in 2018. Following the Parkland school shooting, which tragically occurred in the middle of the DFS investigation, various companies and institutions terminated their business relationships with the NRA in response to widespread backlash.

In May 2018, the NRA sued in New York federal court, alleging that Vullo coerced regulated entities to terminate their relationships with the NRA through public statements and private meetings, in violation of the First Amendment. The Second Circuit rejected the First Amendment claims on the bases that the NRA failed to plausibly allege unconstitutional conduct and, in any event, that Vullo remained entitled to qualified immunity. On November 3, 2023, the Supreme Court granted certiorari.

Representing six First Amendment scholars, Paul, Weiss filed an amicus brief that brings perspective to the weighty First Amendment interests on both sides of the aisle. The brief sets forth a straightforward principle: just as public officials cannot use the threat of legal sanctions to silence private citizens, private citizens cannot use insufficient factual allegations to prevent public officials from speaking on salient issues—particularly when the government is investigating, deterring and prosecuting concededly illegal conduct by those private citizens. Building on that principle, the brief examines the various allegations in the complaint and concludes that each fails the Twombly-Iqbal plausibility standard. The brief argues that disregarding the complaint’s glaring deficiencies risks chilling legitimate government speech and distorting the purpose and meaning of the First Amendment.

Oral argument at the Supreme Court is scheduled for March 18.

Litigation associate Matteo Godi was counsel of record for the six First Amendment scholars. The Paul, Weiss team also includes litigation partner Andrew Gordon and associates David Hopen and Anna Lipin.