The Volokh Conspiracy
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Three Amicus Briefs on the First Amendment and Coercive Government Threats in NRA v. Vullo
When I wrote in March about the cert. petition in this case, readers seemed quite interested, so I thought I'd post an update. (Note: William Brewer, Sarah Rogers & Noah Peters of Brewer Attorneys & Counselors and I are the counsel on the petition.)
[1.] Eighteen state Attorneys General (led by Montana's) filed an amicus brief supporting the petition; here's the opening paragraph:
This case concerns troubling allegations of governmental abuse of power. As plausibly alleged, Maria Vullo, the head of New York's Department of Financial Services ("DFS"), a state agency tasked with sweeping regulatory authority over financial institutions, leveraged her official authority to stifle the NRA's constitutionally protected political speech. But even though Vullo's politically motivated campaign involved press releases, official regulatory guidance, and ongoing investigations that targeted financial institutions doing business with the NRA, she steered clear of any explicit threats in these communications, at least to the "disinterested ear." NLRB v. Gissel Packing, Co., 395 U.S. 575, 619 (1969). But the financial institutions picked up the subtext: drop the NRA or else. See Pet.11, 24-27. Even so, after Bantam Books, these "informal sanctions" cannot sidestep First Amendment scrutiny. See 372 U.S. at 66-67. Yet, the decision below departed from that clear instruction and gave state officials license to target and crackdown on their political opponents' protected speech.
[2.] The Foundation for Individual Rights and Education filed an amicus brief as well:
In the decision below, the Second Circuit held that a complaint alleging that a New York state official made a series of thinly veiled threats to regulated financial entities to pressure them to sever ties with a politically disfavored group could not proceed past the pleadings stage. For reasons persuasively stated in the petition for a writ of certiorari, that holding conflicts with this Court's decision in Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), and the Seventh Circuit's decision in Backpage.com, LLC v. Dart, 807 F.3d 229 (7th Cir. 2015), cert. denied, 137 S. Ct. 46 (2016). The decision below is irreconcilable with the basic purpose of the First Amendment: to prevent governmental officials from wielding their powers to stifle free discourse. On those grounds alone, the decision warrants further review. The decision also warrants review for two other reasons.
First, what is alleged to have occurred in New York is not limited to political interest groups like petitioner. Throughout the country, university students and faculty find themselves subject to "system[s] of informal censorship," Bantam Books, 372 U.S. at 71, which discourage open debate and impose ideological conformity, even when couched in neutral-sounding language.
Second, the decision below held that even if the New York official had "engaged in unconstitutional[ly] threatening or coercive conduct," she would be protected by qualified immunity. Pet. App. 34. But as Justice Thomas has explained, qualified immunity should not shield public officials from liability for considered policy decisions and regulatory actions. This case presents a good opportunity for the Court to clarify that qualified immunity does not reach such deliberate action.
[3.] Several financial and business law scholars filed an amicus brief, too:
The Court should grant the Petition because the court below erred in finding that the lack of explicit binding language or threats from the New York Department of Financial Services in its guidance letters meant that no reasonable regulated firm would consider itself bound by those letters. The reality of banking and insurance regulation is that firms frequently feel that they risk sanction if they do not comply with nominally non-binding guidance. The Court should grant the Petition and review this recurring issue of significant importance.
[4.] I had hoped to also pass along Vullo's Brief in Opposition—but no brief was filed. The question now is whether the Court will call for a response. (The Court basically never grants review without receiving a response, whether on the respondent's own initiative or after a call for a response.) I will keep readers posted about that.