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A Government may not coerce a third party by a threat of government action to punish or suppress speech – 1st Amendment


May 31, 2024 by Tom Roberts, Esq.

The First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or through private intermediaries.

The First Amendment prohibits threats to third parties to suppress speech by wielding their power selectively to punish or suppress speech, directly or … through private intermediaries.

To state a claim that the government violated the First Amendment through coercion of a third party, a plaintiff must plausibly allege 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.  NRA v Vullo __US__ (May 30, 2024)


Side Note:

Interesting timing – 5/30/2024 – The same day a unanimous SCOTUS decision prohibiting selective enforcement based upon speech was issued, a former US President was charged and convicted on 38 charges which seem to have never been applied to people who have not been so obnoxiously vocal in speech offensive to New Yorkers.

“Records from the New York Division of Criminal Justice Services show 10 years ago, 101 people were arrested in New York City in cases where the top charge was falsification of business records. But In 2022, just 39 people faced that top charge. And last year in Manhattan, only 2 people were arrested in cases where falsifying business records was the most serious charge.”  New York News 4 – Chris Glorioso

Unanimous SCOTUS First Amendment Decision on May 30, 2024 in NRA v Vullo

The NRA alleged that the New York Department of Financial Services (DFS) Commissioner Maria Vullo did just that:  “Vullo allegedly said she would be “less interested in pursuing the[se] infractions . . . so long as Lloyd’s ceased providing insurance to gun groups, especially the NRA.” Id., at 199–200, ¶21. Vullo therefore wanted Lloyd’s to disassociate from all gun groups, although there was no indication that such groups had unlawful insurance policies similar to the NRA’s. Vullo also told the Lloyd’s executives she would “focus” her enforcement actions “solely” on the syndicates with ties to the NRA, “and ignore other syndicates writing similar policies.” Id., at 223, ¶69. The message was therefore loud and clear: Lloyd’s “could avoid liability for [unrelated] infractions” if it “aided DFS’s campaign against gun groups” by terminating its business relationships with them. Ibid.”

Why protections against using intermediaries to silence speech is so important.

The unanimous court explained the gravity of this insidious type of violation, “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.” Ibid.”

Holding in NRA v. Vullo

Making it simple for the dullest government employee, the court summarized the First Amendment prohibition as follows:

Ultimately, the critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or … through private intermediaries.

Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors. NRA v Vullo

Bantam Books is still guiding law.

In Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963), SCOTUS explored the distinction between permissible attempts to persuade and impermissible attempts to coerce. The Court explained that the First Amendment prohibits government officials from relying on the “threat of invoking legal sanctions and other means of coercion . . . to achieve the suppression” of disfavored speech. Id., at 67.  The court may look at the official’s authority; the official’s communications; and the coerced party’s reaction to the communications. Id., at 68. Bantam Books stands for the principle that a government official cannot directly or indirectly coerce a private party to punish or suppress disfavored speech on its behalf.

Why the First Amendment is So Important to Liberty!

At the heart of the First Amendment’s Free Speech Clause is the recognition that viewpoint discrimination is uniquely harmful to a free and democratic society. The Clause prohibits government entities and actors from “abridging the freedom of speech.” When government officials are “engaging in their own expressive conduct,” though, “the Free Speech Clause has no application.” Pleasant Grove City v. Summum, 555 U. S. 460, 467 (2009). The government can “‘say what it wishes’” and “select the views that it wants to express.” Id., at 467–468 (quoting Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 833 (1995)). That makes sense; the government could barely function otherwise. “When a government entity embarks on a course of action, it necessarily takes a particular viewpoint and rejects others,” and thus does not need to “maintain viewpoint-neutrality when its officers and employees speak about that venture.” Matal v. Tam, 582 U. S. 218, 234 (2017).

Government Officials can equally share their views and criticize others – they simply cannot use threats or coercion or selective enforcement to silence speech 

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)

First Amendment Does NOT license speakers to disobey laws or regulations.

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).

Into the legal weeds – litigation notes:

Examples of analysis to determine whether the government official is coercing a party, include the 2nd Circuit 4 factor analysis: (1) word choice and tone; (2) the existence of regulatory authority; (3) whether the speech was perceived as a threat; and, perhaps most importantly, (4) whether the speech refers to adverse consequences.  SCOTUS expressly confirmed this was a useful but not an exhaustive analysis.  NRA v. Vullo

SCOTUS rejected the defendant’s claim that the case does not involve unconstitutional coercion because her challenged actions in fact targeted business practices and relationships, which qualify as “nonexpressive activity.” stating the fact “[t]hat Vullo “regulate[d]” business activities stemming from the NRA’s “relationships with insurers and banks,” … does not change the allegations that her actions were aimed at punishing or suppressing speech.”

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