Thursday’s unanimous decision by the U.S. Supreme Court in National Rifle Association v. Vullo represents a needed breath of fresh air in a First Amendment atmosphere that has lately been heavy with suffocating arguments for punishing speech. Moreover, the fascinating concurrence by Justice Ketanji Brown Jackson offer hints about the big social media cases everyone is awaiting.
First, as to Vullo itself. The tale is quickly told. The NRA sued Maria Vullo — then the head of New York’s Department of Financial Services — for allegedly violating the organization’s First Amendment rights. In particular, the group claimed that Vullo had used her power to pressure financial firms not to administer or underwrite insurance policies the NRA offered to its members. According to the complaint, Vullo took this action because she disagreed with the NRA’s politics.
The U.S. Court of Appeals for the Second Circuit dismissed the action, finding no constitutional violation. On Thursday, the Supreme Court reversed the lower court. If the allegations of the complaint are true, wrote Justice Sotomayor for a unanimous court, the regulatory pressure violated the First Amendment. The case was sent back for trial.
Fundamental to the court’s logic are two propositions: First, government officials cannot discriminate against an entity based on that entity’s views. Second, what those officials cannot do directly they also cannot do indirectly, by pressuring third parties to punish that entity.
Did the defendant commit that second sin? Lower courts will have to decide that now. But Justice Sotomayor’s opinion abounds with quotations from Vullo herself: “Lloyd’s ‘could avoid liability for [unrelated] infractions’ if it ‘aided DFS’s campaign against gun groups” by terminating its business relationships with them.” And “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.’” The list goes on and on. The court’s unanimous conclusion: “One can reasonably infer from the complaint that Vullo coerced DFS-regulated entities to cut their ties with the NRA in order to stifle the NRA’s gun-promotion advocacy and advance her views on gun control.”
To be clear, the justices didn’t rule that civil servants can’t hold or express views on public issues. Rather, those civil servants can’t use their official powers to punish people or groups with different views. Nor can civil servants pressure third parties to punish those with whom they disagree.
Here’s another way to understand Justice Sotomayor’s point. According to the complaint, then-Governor Andrew Cuomo took a victory lap after Lloyd’s caved, telling the press: “The NRA is an extremist organization. I urge companies in New York State to revisit any ties they have to the NRA and consider their reputations, and responsibility to the public.” Just take out “NRA” and put in “Black Lives Matter” or “Planned Parenthood” and the viewpoint discrimination becomes obvious.
The case should never have arisen. It’s hornbook First Amendment law that the government can’t coerce third parties to act against those whose views officials don’t like. That so many political figures seem unable to comprehend this is … troubling. The rule isn’t exactly new. The leading precedent on the subject, Bantam Books v. Sullivan, dates from 1963.
All of which leads us to Justice Jackson’s concurrence — the opinion that contains what might be hints about the pending social media decisions. Those cases concern allegations that the government pressured social media companies to reduce the reach of conservative voices.
Jackson draws an important distinction between two kinds of government coercion involving third parties. Vullo represents the first kind. Of the second, she writes: “Coercing an entity in the business of disseminating speech to stop disseminating someone else’s speech obviously implicates the First Amendment.” It’s easy to see how that could apply to the social media cases — leaving government officials little in the way of defense.
Possibly Jackson is going out of her way to make this point to signal her position in those cases. Or maybe I’m trying too hard to read the tea leaves; sometimes they signify nothing. We’ll find out soon enough.
Either way, I’m heartened not only by the outcome in Vullo, but by the Supreme Court’s unanimity. The NRA, whether one agrees with its positions or not, is entitled to try to prove that New York sought to punish it for its politics. “At the heart of the First Amendment’s Free Speech Clause,” Sotomayor writes, “is the recognition that viewpoint discrimination is uniquely harmful to a free and democratic society.”
That’s a sentiment we should all be cheering. Government officials are always free to criticize; what they can’t do is use their powers to launch frontal attacks on fundamental principles of democracy.
Stephen L. Carter is a Bloomberg Opinion columnist, a professor of law at Yale University and author of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”