Unanimous First Amendment Victory for the NRA (Represented by the ACLU)

Reason ^ | 5/30/24 | EUGENE VOLOKH

[CFW]

From Justice Sotomayor's opinion today in NRA v. Vullo (the NRA was represented by the ACLU, with David Cole arguing before the Court; by William Brewer, Sarah Rogers & Noah Peters of Brewer Attorneys & Counselors; and by me):

"[A.] Six decades ago, this Court held that a government entity's "threat of invoking legal sanctions and other means of coercion" against a third party "to achieve the suppression" of disfavored speech violates the First Amendment. Bantam Books, Inc. v. Sullivan (1963). Today, the Court reaffirms what it said then: Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.

Petitioner National Rifle Association (NRA) plausibly alleges that respondent Maria Vullo did just that. As superintendent of the New York Department of Financial Services [DFS], 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. [More factual details below. -EV] Those allegations, if true, state a First Amendment claim…."

[snip]

[T]his Court cannot simply credit Vullo's assertion that "pursuing conceded violations of the law" is an "'obvious alternative explanation'" for her actions that defeats the plausibility of any coercive threat raising First Amendment concerns. ....."

[snip]

Justice Jackson also concurred, highlighting the fact that some government coercion can directly stifle speech (for instance, when the government is coercing bookstores not to carry a book) while other coercion retaliates against protected speech (for instance, when the government is coercing financial intermediaries not to do business with speakers). Both may violate the First Amendment, but, she argued, they should be analyzed somewhat differently; read her opinion (PDF pp. 26-31) for more details.

[CFW]

A good article by Volokh at Reason on the NRA SCOTUS ruling today.

[Parley Baer]

Probably the 1 of 100 things I agree with the ACLU on.

[zeugma]

The ruling was somewhat surprising to me, in that it was unanimous, given the oral arguments, and how political the leftist justices are.