In February 2018, the Parkland, Florida, school shooting happened — killing 17 high school students and school staff. After this shooting, DFS issued a “guidance,” signed by [former New York State Department of Financial Services (DFS) Superintendent Maria] Vullo, which encouraged insurers to “continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations.”

To be clear, this guidance did not explicitly threaten to take any action against insurers who continued to do lawful business with the NRA. But that does not change the fact that DFS, an agency whose responsibilities include law enforcement, and that had recently brought a $13 million enforcement action against insurance companies that did illegal business with the NRA, was now suggesting that those same companies might face consequences if they did other, legal business with the NRA.

This guidance, and similar post-Parkland communications between DFS and the insurance industry, do potentially violate the First Amendment. While the Constitution permits a government official to ask any company to stop doing business with the NRA, it does not typically permit the government to coerce private businesses into halting lawful business with an advocacy group. And DFS’s guidance, which was issued so soon after DFS opened its Carry Guard investigation, looks suspiciously like coercion.

Now this case is before a Supreme Court that is dominated by Republican appointees, and that has a history of handing down recklessly broad decisions benefiting gun rights organizations. …

The facts of Vullo aren’t quite as egregious as those in Bantam Books [v. Sullivan]. DFS’s guidance does not mention the possibility of any kind of enforcement action against an insurer who continues to work with the NRA. And there’s no indication that DFS sent an armed police officer to New York insurance companies to check in on whether they had, in fact, dropped their business with the NRA.

Even so, the guidance does raise serious First Amendment concerns. Imagine, for example, that a police officer arrested you for shoplifting — or some other crime that you legitimately did commit, and that a police officer legitimately may arrest you for committing. Then imagine that this same police officer shows up at your workplace a few months later and pressures you to end your relationship with another company. Would you feel free to refuse? Or would you think that this officer, who so recently placed you under arrest, was implicitly threatening to do so again?

That’s basically what happened in Vullo. DFS brought a completely legitimate enforcement action against three insurance companies, arising out of those companies’ decision to administer or underwrite an insurance product that no sensible government would allow to exist. Then, months later, the same agency sent a guidance to all New York insurers — including these same three companies — informing them that DFS “encourages regulated institutions to review any relationships they have with the NRA or similar gun promotion organizations, and to take prompt actions to managing these risks and promote public health and safety.”

It’s not hard to read that guidance as a coercive attempt to punish the NRA because New York’s government disagrees with the NRA’s political advocacy in favor of looser gun laws.

— Ian Millhiser in A boneheaded state official may have just handed the NRA a big Supreme Court victory

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