The Supreme Court Defends Free Speech

Earlier this month, in National Rifle Association (NRA) v. Vullo, the gun-rights organization won a landmark victory at the Supreme Court. Given the Court’s conservative majority, a casual court-watcher might find this unsurprising. Less intuitively, the NRA received legal representation...

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Earlier this month, in National Rifle Association (NRA) v. Vullo, the gun-rights organization won a landmark victory at the Supreme Court. Given the Court’s conservative majority, a casual court-watcher might find this unsurprising. Less intuitively, the NRA received legal representation from an ideological antipode — the ACLU. Further, the unanimous majority opinion came from staunch liberal justice Sonya Sotomayor. Uniting these disparate factions was the simple notion that the Constitution forbids governments to choke free speech by coercing third parties to dissociate from disfavored speakers.

The High Court ruled that — if the fact pattern alleged in lower courts proves true — New York State’s efforts to sever the NRA from its insurance providers constituted such coercion. After the 2018 mass shooting in Parkland, Florida, the then-director of the New York Department of Financial Services (DFS), Maria Vullo, made clear to insurers that continued ties with the gun-rights advocate would invite regulatory retaliation. “Vullo was free to criticize the NRA and pursue the conceded violations of New York insurance law,” Sotomayor wrote. “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.” (READ MORE from David B. McGarry: New York’s Attempted Hit on the NRA Violated the First Amendment)

Nonetheless, New York did just that. The multi-pronged offensive went as follows. Vullo issued a guidance letter urging insurance providers to consider “reputational risks” that could attach to doing business with the NRA. In the context of the relevant financial-services regulatory regime, invoking such “risks” constitutes a not-so-veiled threat of regulatory sanction.

Vullo also met privately with the NRA’s financial partners. Meeting with one partner, Lloyd’s of London, she made her aim explicit. As Sotomayor describes it, “Vullo told the Lloyd’s executives ‘that DFS was less interested in pursuing the[se] infractions’ unrelated to any NRA business ‘so long as Lloyd’s ceased providing insurance to gun groups, especially the NRA.’” 

In other words: comply, or else. 

Vullo’s censorial campaign had its intended effect. Financial institutions — including Lloyd’s — abandoned the NRA. The record suggests they did so against their will, solely to deflect regulatory scrutiny. According to a court filing, the chairman of one erstwhile NRA partner “placed a distraught phone call to the NRA,” saying that, “Although [the firm] wished to continue doing business with the NRA … it would need to ‘drop’ the NRA for fear of ‘losing [our] license’ to do business.” 

Vullo presented simple facts and few legal ambiguities. The state action in question violated the First Amendment in a clear and explicit fashion.  The state’s actions fell well outside the parameters set in Bantam Books v. Sullivan (1963), whose precedent directed the Court’s reasoning.

The future seems far less clear, however. In recent decades, government officials have routinely threatened, cajoled, and enticed private actors to achieve various desired ends. Particularly when it concerns expressive activity under the protection of the First Amendment, this phenomenon — known as “jawboning” — raises significant constitutional questions. The Supreme Court will soon rule on another jawboning case (a headline magnet, Murthy v. Missouri), which questions whether the Biden administration’s attempts to shape social-media platforms’ content moderation policies consisted of constitutionally appropriate efforts at persuasion or impermissible coercion. Murthy presents a far more convoluted and extensive factual record than Vullo, containing endless ambiguity and variation. 

From one angle, Vullo’s clear-cut fact pattern offers little indication respecting the likely complexities of Murthy’s outcome. However, the unanimous Court’s emphatic adoption of Bantam Books’ coercion standard — rather than other, more malleable standards that lower courts favored in Murthy — suggests the justices may enjoin only those instances of jawboning that seem clearly coercive in nature. “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,” Sotomayor wrote. Absent this ability, she argued, “the government could barely function.” Should this reasoning carry forward, it seems near impossible that the Court would uphold the totality of the 5th U.S. Court of Appeals’ sweeping injunction against the Biden administration. (READ MORE: Government’s Attack on Free Speech Can Only Be Stopped by Congress)

Combing through the entrails of judicial opinions for portents of the future, while edifying to court watchers, distracts from the immediate importance of the Vullo ruling. A unanimous Court — at the behest of a two otherwise-diametrically-opposed advocacy groups — emphatically rebuked an act of petty and censorial tyranny. It preserved the First Amendment’s speech protections, which have never been more robust. While it is a feature of republican governments to be rocked incessantly by partisan antics and overreaches, the Constitution provides antagonistic checks and balances as necessary stabilizers. It is not perpetual calm, but a strong and resilient institutional bulwark, that defines a healthy system. 

In the Vullo saga, the Supreme Court did its work. The system held firm.

David B. McGarry is a policy analyst at the Taxpayers Protection Alliance.

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