Free Speech
from the precedent-respecting dept
Fri, May 31st 2024 09:27am - Cathy Gellis
This week all nine Supreme Court justices found in favor of the NRA. Not because they all like what the NRA is selling (although some of them probably do) but because the behavior of New York State, to try to silence the NRA by threatening third parties, was so constitutionally alarming. If New York could get away with doing what it had done, and threaten a speaker’s business relationships as a means of punishing the speaker, then so could any other state against any other speaker, including those who might be trying to speak out against the NRA. Like with the 303 Creative decision, the merit of this decision does not hinge on the merit of the prevailing party, because it is one that serves to protect every speaker of any merit (including those at odds with, say, the preferred policies of states like Texas and Florida, which would cover those conveying pretty much every liberal viewpoint).
The decision was written by Justice Sotomayor, which was something of a welcome surprise given how she’s gotten the First Amendment badly wrong in some of her more recent jurisprudence, including her dissent in 303 Creative and her decision in the Warhol case, where its expressive protection was conspicuously, and alarmingly, absent from her analysis entirely. But in this case she produced a good and important decision that contemporizes earlier First Amendment precedent, and, importantly, in a way entirely consistent with it. In doing so the Court has strengthened the hand of advocates seeking to protect speakers from a certain type of injury that state actors have been trying to use to silence them.
The Court does not break new ground in deciding this case. It only reaffirms the general principle from Bantam Books that where, as here, the complaint plausibly alleges coercive threats aimed at punishing or suppressing disfavored speech, the plaintiff states a First Amendment claim. [p.18]
In these cases it’s not a direct injury, because the First Amendment pretty clearly says that state actors cannot directly silence expression they do not like (although, true, we still see cases where the government has nevertheless tried to go that route). What this decision says is that state actors also cannot try to silence speakers indirectly by threatening anyone they need to interact with to no longer interact with them.
[A] government official cannot do indirectly what she is barred from doing directly: A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf. [p.11]
Here, the New York official, Vullo, pressured insurance companies she regulated to not do business with the NRA.
As superintendent of the New York Department of Financial Services, Vullo allegedly pressured regulated entities to help her stifle the NRA’s pro-gun advocacy by threatening enforcement actions against those entities that refused to disassociate from the NRA and other gun-promotion advocacy groups. Those allegations, if true, state a First Amendment claim. [p. 1]
As alleged Vullo did more than argue that the companies not do business with the NRA, which might be a legitimate exercise of a government official’s ability to try to persuade.
A government official can share her views freely and criticize particular beliefs, and she can do so forcefully in the hopes of persuading others to follow her lead. In doing so, she can rely on the merits and force of her ideas, the strength of her convictions, and her ability to inspire others. What she cannot do, however, is use the power of the State to punish or suppress disfavored expression. See Rosenberger, 515 U. S., at 830 (explaining that governmental actions seeking to suppress a speaker’s particular views are presumptively unconstitutional). In such cases, it is “the application of state power which we are asked to scrutinize.” NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 463 (1958). [p.8-9]
What she did also went beyond a legitimate exercise of regulatory authority.
In sum, the complaint, assessed as a whole, plausibly alleges that Vullo threatened to wield her power against those refusing to aid her campaign to punish the NRA’s gun-promotion advocacy. If true, that violates the First Amendment. [p.15]
[A]lthough Vullo can pursue violations of state insurance law, she cannot do so in order to punish or suppress the NRA’s protected expression. So, the contention that the NRA and the insurers violated New York law does not excuse Vullo from allegedly employing coercive threats to stifle gun-promotion advocacy. [p.17]
It was using that regulatory authority against a third party as a means of punishing a speaker for its views that violated the First Amendment.
As discussed below, Vullo was free to criticize the NRA and pursue the conceded violations of New York insurance law. She could not wield her power, however, to threaten enforcement actions against DFS-regulated entities in order to punish or suppress the NRA’s gun-promotion advocacy. Because the complaint plausibly alleges that Vullo did just that, the Court holds that the NRA stated a First Amendment violation. [p.8]
Nothing in this case gives advocacy groups like the NRA a “right to absolute immunity from [government] investigation,” or a “right to disregard [state or federal] laws.” Patterson, 357 U. S., at 463. Similarly, nothing here prevents government officials from forcefully condemning views with which they disagree. For those permissible actions, the Constitution “relies first and foremost on the ballot box, not on rules against viewpoint discrimination, to check the government when it speaks.” Shurtleff v. Boston, 596 U. S. 243, 252 (2022). Yet where, as here, a government official makes coercive threats in a private meeting behind closed doors, the “ballot box” is an especially poor check on that official’s authority. Ultimately, the critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries. [p.19]
This decision is not the first time that courts have said no to this sort of siege warfare state officials have tried to wage against speakers they don’t like, to cut them off from relationships the speakers depend on when they can’t attack the speakers directly.
The NRA’s allegations, if true, highlight the constitutional concerns with the kind of intermediary strategy that Vullo purportedly adopted to target the NRA’s advocacy. Such a strategy allows government officials to “expand their regulatory jurisdiction to suppress the speech of organizations that they have no direct control over.” Brief for First Amendment Scholars as Amici Curiae Supporting Petitioner 8. It also allows government officials to be more effective in their speech-suppression efforts “[b]ecause intermediaries will often be less invested in the speaker’s message and thus less likely to risk the regulator’s ire.” [p.19]
One such earlier decision that we’ve discussed here is Backpage v. Dart, where the Seventh Circuit said no to government actors flexing their enforcement muscles against third parties in a way calculated to hurt the speaker they are really trying to target. But instead of there being just a few such decisions binding on just a few courts, suddenly there is a Supreme Court decision saying no to this practice now binding on all courts.
The big question for the moment is what happens next. There are still several cases pending before the Supreme Court – the two NetChoice/CCIA cases and Murthy v. Missouri – which all involve questions of whether the government has acted in a way designed to silence a speaker. The NetChoice/CCIA cases are framed a bit differently than this case, with the central question being whether state regulation of a platform directly implicates the platform’s own First Amendment rights, but for the Court to rule in NetChoice and CCIA’s favor and find that platforms do have such rights it would need to recognize that what Texas and Florida are trying to do in regulating Internet platforms is punish viewpoints they don’t favor. But if the Court could recognize that sort of viewpoint punishment is what the state of New York was trying to do indirectly here, perhaps it can also recognize that these other states are trying to do it directly there.
Meanwhile, in Murthy v. Missouri, the legal question is closer to the one raised here, and indeed the case was even heard on the same day. In that case the federal government is alleged to have unconstitutionally pressured platforms to cut certain speakers off from their services. It would be the same unconstitutional mechanics, to punish a speaker by coming after a third party the speaker depends on, but as even this decision suggests, only if the conduct of the government was in fact coercive and not simply an expression of preference the platforms were free to take or leave.
Which is why the concurrences from Justices Gorsuch and Jackson may be meaningful, if not for this NRA case but for others. With the latter concurrence Jackson appears to want to ensure that government actors are not chilled from exercising legitimate enforcement authority if they also disfavor the speaker who is in their regulatory sights.
The lesson of Bantam Books is that “a government official cannot do indirectly what she is barred from doing directly.” Ante, at 11. That case does not hold that government coercion alone violates the First Amendment. And recognizing the distinction between government coercion and a First Amendment violation is important because our democracy can function only if the government can effectively enforce the rules embodied in legislation; by its nature, such enforcement often involves coercion in the form of legal sanctions. The existence of an allegation of government coercion of a third party thus merely invites, rather than answers, the question whether that coercion indirectly worked a violation of the plaintiff’s First Amendment rights. [p.2 Jackson concurrence]
In her view, the earlier Bantam Books case the decision is rooted in is not the correct precedent; Jackson would instead look at cases challenging retaliatory actions by the government as a First Amendment violation, and here she thinks that analytical shoe better fits.
[It] does suggest that our First Amendment retaliation cases might provide a better framework for analyzing these kinds of allegations—i.e., coercion claims that are not directly related to the publication or distribution of speech. And, fortunately for the NRA, the complaint in this case alleges both censorship and retaliation theories for how Vullo violated the First Amendment—theories that, in my opinion, deserve separate analyses. [p.4 Jackson concurrence]
As for the Gorsuch concurrence, it is quite brief, and follows here in its entirety:
I write separately to explain my understanding of the Court’s opinion, which I join in full. Today we reaffirm a well-settled principle: “A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf.” Ante, at 11. As the Court mentions, many lower courts have taken to analyzing this kind of coercion claim under a four-pronged “multifactor test.” Ibid. These tests, the Court explains, might serve “as a useful, though nonexhaustive, guide.” Ante, at 12. But sometimes they might not. Cf. Axon Enterprise, Inc. v. FTC, 598 U. S. 175, 205–207 (2023) (G ORSUCH , J., concurring in judgment). Indeed, the Second Circuit’s decision to break up its analysis into discrete parts and “tak[e] the [complaint’s] allegations in isolation” appears only to have contributed to its mistaken conclusion that the National Rifle Association failed to state a claim. Ante, at 15. Lower courts would therefore do well to heed this Court’s directive: Whatever value these “guideposts” serve, they remain “just” that and nothing more. Ante, at 12. “Ultimately, the critical” question is whether the plaintiff has “plausibly allege[d] conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff ’s speech.” Ante, at 12, 19.
What seems key to him is the last line, and reads like a canary of an issue potentially splitting the Court in Murthy, where there the government clearly engaged in communications with intermediary platforms but the question is whether those communications amounted to attempts at persuasion, which is lawful, or coercion, which is not.
Meanwhile, this case itself will now be remanded. The Court ruled based on the facts as the NRA pled them – as was procedurally proper to do at this stage of the litigation – but it’s conceivable that when put to a standard of proof there won’t be enough to maintain its First Amendment claim. And even if the claim survives, the state for its part can still litigate whether it has an immunity defense to this alleged constitutional injury. So the matter has not yet been put to rest, but presumably the underlying First Amendment question it raised now has.
Filed Under: 1st amendment, coercion, free speech, jawboning, new york, scotus, sonia sotomayor, supreme court, vullo
Companies: nra
