Since the minute it was ratified, the First Amendment has been as clear as water on one thing: Government officials may not use their power to punish or abridge political viewpoints.
That’s the whole point of the “speech” part of the amendment.
Because power-hungry functionaries keep refusing to abide by that bright-line rule, the Supreme Court periodically steps in to remind us. That’s what it did on May 30 in National Rifle Association of America v. Vullo, when all nine justices ruled that Maria Vullo, former superintendent of the New York Department of Financial Services, improperly pressured insurance companies and banks to deny the NRA access to their services.
The case wasn’t complicated. Vullo found a minor infraction in insurance that Lloyd’s of London and Chubb Limited had underwritten, through which the NRA provided its members access to insurance. Vullo then told Lloyd’s officials she wouldn’t penalize the company if it agreed to stop underwriting all firearm-related policies and substantially scaled back its NRA business.
Then, in a guidance letter to all entities regulated by her department, Vullo specifically discouraged them from doing business with the NRA and to consider “reputational risks” involved in doing so. In a joint press release with then-Gov. Andrew Cuomo, Vullo went even further, “urging all insurance companies and banks doing business in New York” to “discontinue their arrangement with the NRA.” Vullo’s department entered consent decrees with Lloyd’s and Chubb in which the latter agreed to not provide insurance through the NRA, even if otherwise lawful.
Vullo also made clear to Lloyd’s that she wanted to hobble all gun groups, and that (to quote the case syllabus) “she would ‘focus’ her enforcement actions ‘solely’ on the syndicates with ties to the NRA, and ‘ignore other syndicates writing similar policies.'”
Vullo’s actions were obviously coercive. If all the facts as presented in this case are found to be accurate when the case goes back to lower courts, then Vullo “used the power of her office to target gun promotion by going after the NRA’s business partners.”
All nine justices rightly considered this case not according to their like or dislike of the NRA, but as a matter of First Amendment protection. The unanimous decision was written by left-leaning Justice Sonia Sotomayor, even though her jurisprudence consistently approves of gun control. The unanimity indicates how strong a First Amendment case this was, and of how important that amendment is.
As Sotomayor noted, Vullo in her private capacity is free to use her First Amendment rights to speak against the NRA’s agenda. But the Constitution insists that Vullo “not wield her power” to “punish or suppress” the NRA’s First Amendment rights.
“At the heart of the First Amendment’s Free Speech Clause,” Sotomayor wrote, “is the recognition that viewpoint discrimination is uniquely harmful to a free and democratic society.”
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This lesson should be learned, and the amendment’s letter observed, not just by direct government regulators and enforcement officials. Government entities such as public schools and state colleges, too, must be bastions of free speech. A state college dean or professor no less than a state financial services regulator must not use viewpoint discrimination to penalize speech (other than illegal physical threats) or to determine employment status. In particular, it is manifestly unconstitutional to deny employment or promotion to an instructor who refuses to sign a “diversity, equity, and inclusion” statement of beliefs.
Our free and democratic society is a treasure. The high court is right to keep officials from gunning it down.