CNN
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As Harvard University, elite law firms and perceived political enemies of President Donald Trump fight back against his efforts to use government power to punish them, they’re winning thanks in part to the National Rifle Association.
Last May, the Supreme Court unanimously sided with the gun rights group in a First Amendment case concerning a New York official’s alleged efforts to pressure insurance companies in the state to sever ties with the group following the deadly 2018 school shooting in Parkland, Florida.
A government official, liberal Justice Sonia Sotomayor wrote for the nine, “cannot … use the power of the State to punish or suppress disfavored expression.”
A year later, the court’s decision in National Rifle Association of America v. Vullo has been cited repeatedly by federal judges in rulings striking down a series of executive orders that targeted law firms. Lawyers representing Harvard, faculty at Columbia University and others are also leaning on the decision in cases challenging Trump’s attacks on them.
“Going into court with a decision that is freshly minted, that clearly reflects the unanimous views of the currently sitting Supreme Court justices, is a very powerful tool,” said Eugene Volokh, a conservative First Amendment expert who represented the NRA in the 2024 case.
For free speech advocates, the application of the NRA decision in cases pushing back against Trump’s retribution campaign is a welcome sign that lower courts are applying key First Amendment principles equally, particularly in politically fraught disputes.
In the NRA case, the group claimed that Maria Vullo, the former superintendent of the New York State Department of Financial Services, had threatened enforcement actions against the insurance firms if they failed to comply with her demands to help with the campaign against gun groups. The NRA’s claims centered around a meeting Vullo had with an insurance market in 2018 in which the group says she offered to not prosecute other violations as long as the company helped with her campaign.
“The great hope of a principled application of the First Amendment is that it protects everybody,” said Alex Abdo, the litigation director of the Knight First Amendment Institute.
“Some people have criticized free speech advocates as being naive for hoping that’ll be the case, but hopefully that’s what we’re seeing now,” he added. “We’re seeing courts apply that principle where the politics are very different than the NRA case.”
The impact of Vullo can be seen most clearly in the cases challenging Trump’s attempts to use executive power to exact revenge on law firms that have employed his perceived political enemies or represented clients who have challenged his initiatives.
A central pillar of Trump’s retribution crusade has been to pressure firms to bend to his political will, including through issuing executive orders targeting four major law firms: Perkins Coie, Jenner & Block, WilmerHale and Susman Godfrey. Among other things, the orders denied the firms’ attorneys access to federal buildings, retaliated against their clients with government contracts and suspended security clearances for lawyers at the firms. (Other firms were hit with similar executive orders but they haven’t taken Trump to court over them.)
The organizations individually sued the administration over the orders and the three judges overseeing the Perkins Coie, WilmerHale and Jenner & Block suits have all issued rulings permanently blocking enforcement of the edicts. (The Susman case is still pending.)
Across more than 200-pages of writing, the judges – all sitting at the federal trial-level court in Washington, DC – cited Vullo 30 times to conclude that the orders were unconstitutional because they sought to punish the firms over their legal work.
The judges all lifted Sotomayor’s line about using “the power of the State to punish or suppress disfavored expression,” while also seizing on other language in her opinion to buttress their own decisions.
Two of them – US district judges Beryl Howell, an appointee of former President Barack Obama, and Richard Leon, who was named to the bench by former President George W. Bush – incorporated Sotomayor’s statement that government discrimination based on a speaker’s viewpoint “is uniquely harmful to a free and democratic society.”
The third judge, John Bates, said Vullo and an earlier Supreme Court case dealing with impermissible government coercion “govern – and defeat” the administration’s arguments in defense of a section of the Jenner & Block order that sought to end all contractual relationships that might have allowed taxpayer dollars to flow to the firm.
“Executive Order 14246 does precisely what the Supreme Court said just last year is forbidden: it engages in ‘coercion against a third party to achieve the suppression of disfavored speech,’” wrote Bates, who was also appointed by Bush, in his May 23 ruling.
For its part, the Justice Department has tried to draw a distinction between what the executive orders called for and the conduct rejected by the high court in Vullo. They told the three judges in written arguments that the orders at issue did not carry the “force of the powers exhibited in Vullo” by the New York official.
Will Creeley, the legal director at the Foundation for Individual Rights in Education, said the rulings underscore how “Vullo has proved its utility almost immediately.”
“It is extremely useful to remind judges and government actors alike that just last year, the court warned against the kind of shakedowns and turns of the screw that we’re now seeing from the administration,” he said.
Justice Department lawyers have not yet appealed any of the three rulings issued last month. CNN has reached out to the department for comment.
In separate cases brought in the DC courthouse and elsewhere, Trump’s foes have leaned on Vullo as they’ve pressed judges to intervene in high-stakes disputes with the president.
Among them is Mark Zaid, a prominent national security lawyer who has drawn Trump’s ire for his representation of whistleblowers. Earlier this year, Trump yanked Zaid’s security clearance, a decision, the attorney said in a lawsuit, that undermines his ability to “zealously advocate on (his clients’) behalf in the national security arena.”
In court papers, Zaid’s attorneys argued that the president’s decision was a “retaliatory directive,” invoking language from the Vullo decision to argue that the move violated his First Amendment rights.
“’Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors,’” they wrote, quoting from the 2024 ruling. “And yet that is exactly what Defendants do here.”
Timothy Zick, a constitutional law professor at William & Mary Law School, said the executive orders targeting private entities or individuals “have relied heavily on pressure, intimidation, and the threat of adverse action to punish or suppress speakers’ views and discourage others from engaging with regulated targets.”
“The unanimous holding in Vullo is tailor-made for litigants seeking to push back against the administration’s coercive strategy,” Zick added.
That notion was not lost on lawyers representing Harvard and faculty at Columbia University in several cases challenging Trump’s attacks on the elite schools, including one brought by Harvard challenging Trump’s efforts to ban the school from hosting international students. A federal judge has so far halted those efforts.
In a separate case brought by Harvard over the administration’s decision to freeze billions of dollars in federal funding for the nation’s oldest university, the school’s attorneys on Monday told a judge that Trump’s decision to target it because of “alleged antisemitism and ideological bias at Harvard” clearly ran afoul of the high court’s decision last year.
“Although any governmental retaliation based on protected speech is an affront to the First Amendment, the retaliation here was especially unconstitutional because it was based on Harvard’s ‘particular views’ – the balance of speech on its campus and its refusal to accede to the Government’s unlawful demands,” the attorneys wrote.
