Court Rejects Punishing Disfavored Speech

Gun Rights

No government officials in New York would engage in lawfare to silence their political opponents, would they?

Oh, yes, they would.

Indeed, they did.

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And the U.S. Supreme Court has unanimously shut down such an effort by New York as violating the First Amendment.

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The speaker could have been an individual, a group of individuals, or an organization–large or small–on any side of any issue. The First Amendment protects them all.

This time the organization was the National Rifle Association, or NRA.

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New York’s Department of Financial Services, or DFS, oversees insurance companies and financial-services institutions in New York.

This affects the NRA, because it offers insurance programs to members, including members in New York.

According to the court’s opinion, a state official encouraged “DFS-regulated entities to: (1) ‘continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations’; (2) ‘review any relationships they have with the NRA or similar gun promotion organizations’; and (3) ‘take prompt actions to manag(e) these risks and promote public health and safety.’”

On the same day, the same state official and a second state official “issued a joint press release … ‘urg(ing) all insurance companies and banks doing business in New York’ to join those ‘that have already discontinued their arrangements with the NRA.’”

Two insurance companies thereafter “agreed not to provide any NRA-endorsed insurance programs.”

The NRA was unhappy.

So was the U.S. Supreme Court. And unanimously so.

Addressing only the first state official, the court went out of its way to observe that the first state official was “free to criticize the NRA.” The first official “could not wield … power, however, to threaten enforcement actions against DFS-regulated entities in order to punish or suppress the NRA’s gun-promotion advocacy.”

As for being free to criticize the NRA: “The government can ‘say what it wishes’ and ‘select the views that it wants to express.’ 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.’”

Government officials, the court held, “can share (their) views freely and criticize particular beliefs, and (they) can do so forcefully in the hopes of persuading others to follow (their) lead. In doing so, (they) can rely on the merits and force of (their) ideas, the strength of (their) convictions, and (their) ability to inspire others. What (they) cannot do, however, is use the power of the (s)tate to punish or suppress disfavored expression.”

“Disfavored expression” means, of course, expression that current government officials disfavor.

After all, “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.”

The court then drew a roadmap for future actions: “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,” the court held, adding that “the NRA plausibly alleged that (the first official) violated the First Amendment by coercing DFS-regulated entities into disassociating with the NRA in order to punish or suppress the NRA’s gun-promotion advocacy.”

Chalk one up for free speech, regardless of whether the speaker, again, is an individual, a group of individuals, or an organization–large or small–on any side of any issue. The First Amendment protects them all.

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Randy Elf is pleased this opinion was unanimous.

COPYRIGHT 2024 BY RANDY ELF

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