ACLU on NRA v. Vullo

An interesting summary of the historical background to this pending Supreme Court case (in which I'm Counsel of Record, and which the ACLU's Legal Director, David Cole, will be arguing on March 18), by the ACLU's Jennesa Calvo-Friedman:

More than 60 years ago the Supreme Court ruled that the First Amendment bars the government from coercing private entities to punish speech that the government disfavors. Just as the government can't directly punish or censor speech it disagrees with, it cannot do so indirectly by coercing private parties to do the same.

History underscores the importance of this free speech protection. Government officials have all too often enlisted private parties—from the White Citizens' Councils of the Jim Crow South to the blacklists of Communists in the McCarthy era—to punish those with whom they disagree. New York's efforts to punish the National Rifle Association, at issue before the Supreme Court in National Rifle Association v. Vullo, follow in the footsteps of those earlier censorship efforts.

The ACLU disagrees sharply with the NRA on many issues, yet we are representing the group in this case because of the First Amendment principles at stake. We argue that Maria Vullo, a New York state regulator, threatened to use her regulatory power over banks and insurance companies to coerce them into denying basic financial services to the NRA and, in Vullo's own words, "other gun promotion" groups. Vullo's threats were expressly based on her disagreement with the NRA's advocacy. And they worked. Several insurance companies and banks refused to work with the NRA out of fear of reprisals from New York regulators. The ACLU urges the Supreme Court to hold that coercing third parties to break ties with the NRA because of its advocacy violates the First Amendment….

I should stress again how pleased I am that the ACLU is representing the NRA here, precisely because the two disagree so sharply on gun rights questions. Indeed, on Second Amendment issues I generally agree with the NRA much more than the ACLU. But so what? The First Amendment is about protecting speech, even of those with whom you disagree. The ACLU's participating in the case sends that message loud and clear.

If you're interested in our substantive arguments, you can see them in the petitioner's brief, which is also signed by Alan Morrison, co-founder with Ralph Nader of the Public Citizen Litigation Group, as well as other ACLU lawyers (including Calvo-Friedman, the author of the article), plus the NRA's original lawyers at Brewer Attorneys & Counselors and me. And you can read the rest of the ACLU article for more historical examples of the government using threats to third parties to try to restrict speech.

Comments

[Krayt]

Next step: Congress passes a law making it illegal for those who make a market in financial transactions to deny legal transactions based on cancelation arm twisting.

In short, if your company helps create financial electronic transactions, you cannot leverage that on behalf of busibodies as an adjunct to panopticon.

The online virtual world should map to the cash world. People carry their expectations with them when adopting to modern conveniences.

It’s the same argument for Internet backbone (but not social media!), phones, or electricity for that matter.

[jimc5499]

The Bank that I dealt with for over 20 years started questioning my purchases. The only purchases questioned were the ones I made at a gun shop and an online supply house where I bought my reloading supplies. I found a new Bank.

[Drewski]

Libertarian demands more federal regulations, film at 11.

Not that I disagree, but when you do it it's unprincipled.

[Krayt]

Note most of the articles related here are about government arm twisting, be it this asinine NY effort, southern states trying to order what companies can say re: woke, or threats to gut section 230, unless media companies censor harrassment, please start with the harrassing tweets of our political opponents right before an election..."thank you!"

If we can get back to politicians reacting in horror to such thoughts, if such a time ever existed, I'll reconsider fighting fire with fire.

[Krayt]

Net neutrality, for example. It seemed a bit sketchy, but I thought the situation could have been attacked better as a kind of fraud. The ISP sells you Internet access, Netflix sells you streamed shows, the ISP slows your access to Netflix unless Netflix gives them a cut of what you pay Netflix.

[Ken Arromdee]

That won't work. Your ISP can just say "we don't sell unrestricted Internet access, we sell Internet access with arbitrary restrictons". Then anything they do will be consistent with their claims as to what they're selling, and you have no grounds to call it fraud.

They basically say that anyway, except they're a little less blunt about it.

[Krayt]

I encourage them to do so, loudly.

I am aware of scammeriffic tiny print. Lies that obscure the real ripoff business models. See banks and overcharge fees to "protect" you, and CC companies deliberately getting you trapped at a high rate because you are now high "risk".

These are lies core to the profit business model, and hence fraud.

I don't accept that kind of crap from politicians (see the past few years regarding facetious claims of disinterested concern for rule of law as cover story for attacking political opponents with the power of government) and I'm not so keen on companies lying as core to their business plan, either.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Exactly!

These are lies core to the profit business model, and hence fraud.

One of the most despicable problems with governments everywhere is how hard they make it for private individuals to hold cronies accountable for such frauds. It shouldn't take a class action lawsuit and years and millions of $$$ to even try to punish fraud, only to find government judges warping the rules yet again on technicalities to get them off the hook.

[Krayt]

Another issue of great concern (see my only half-joking Fundamental Theorem of Government) is there's no shortage of politicians looking to use arguments to get in the way of business until "something happens" and the red tape is cleared up. A look at history and around the world shows this is the tail that wags the dog, not evil, calculating business looking to tempt honest servants of the people.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

And they will lose business.

Oh, you say, my city gave them a monopoly!

Then blame the city. Stop governments from handing out monopolies. But don't try to fine tune the monopolies with more government interference.

[Patrick Henry, the 2nd]

Totally agree. People should be able to do any legal business without fear of reprisals.

[Sarcastr0]

'cept Disney in Florida when they talk out of turn.

[Krayt]

You have fulfilled your name!

[rloquitur]

Disney had governmental powers and lobbied against a common sense law. No 1A issues on stripping it of governmental power.

[Bored Lawyer]

Expect a "clingers" comment from you know who in 5, 4, 3, 2, 1.

[Bwaaah]

He's here, and he's not happy.

[Brett Bellmore]

"Indeed, on Second Amendment issues I generally agree with the NRA much more than the ACLU. But so what? "

The 'so what?' is that we know the ACLU is unprincipled, that they have higher loyalties than civil liberties.

But we know that independently of the 2nd amendment: After their dramatic victory in the Citizens United case, they sacked their director of litigation, and filled the position with somebody who had made their name gaming out ways to overturn that victory.

In this case, the threat to their actual, non civil liberties agenda was dire enough to defend the NRA. In another case, where more damage could be done to the 2nd amendment without quite so much collateral damage to left wing causes?

They'd have decided the hit to civil liberties was worth it.

This country desperately needs a REAL civil liberties defender. Not just one willing to defend civil liberties when more important interests aren't a stake.

[Jonathansingletary]

This comment doesn't seem to align with the ACLU's current stance:

https://www.aclu.org/documents/aclu-and-citizens-united

[Brett Bellmore]

ACLU Taps Constitutional Expert David Cole as National Legal Director

How to Reverse Citizens United: by David Cole

Personnel are policy, Jonathansingletary.

[Jonathansingletary]

These two articles are presented together, but neither one, even together, says that the ACLU is trying to overturn Citizens or that they are unprincipled (your original argument).

“Personnel is policy” is a (conservative) policy, not a natural law.

[Brett Bellmore]

The ACLU hired as it's national legal director a guy who was leading the fight to overturn it's victory in Citizens United. Yeah, that kind of says they're unprincipled. You don't win victories and then hire people committed to undoing them if you're still invested in the principles that led to the victories.

It's worth actually reading what Cole said. What he did NOT say was that CU would be reversed by getting the Court to rule that it had been mistaken. (The way Roe was eventually overturned.) Sure, he'd like that, but thinks it unrealistic.

He thought that you could nibble away at the edges until the case had been rendered moot.

[Bwaaah]

“Personnel are policy”

Are they? It appears that the ACLU continues to advocate fully in support of the Citizens United decision. See their statement here. And yet, David Cole is their “Legal Director.” Would that not contradict your statement?

Note that Cole joined the ACLU a few months after he wrote that in 2016. Two years later, here he is most essentially arguing in favor of Citizen’s United, and shooting down the most common arguments against the decision. Did he change his mind? Do I care?

Your theory seems to presume a determinism that’s not necessarily there. Could it not be said that David Cole’s personal opinion about Citizen’s United is his own? Is there no distinction between the ACLU’s positions and the personal positions of people who work for the ACLU? Isn’t your presumption in some measure a denial of the capability of professional advocacy…people paid to advocate ably for the positions of others?

Would you suggest that all ACLU legal advocates have their opinions screened to assure that they match ACLU positions? All positions? Is such a determination even possible? And what about the future, when a new issue comes up and an ACLU director finds his/her personal position differs from the organization’s? Should he/she be fired?

The ACLU should be expected to maintain some notion of ideological fidelity. But its employees need only maintain the fidelity of their professional advocacy in their service to the ACLU. Otherwise, they should be entitled to their personal opinions, and no, those opinions do not and should not determine the positions of the ACLU.

[Brett Bellmore]

"Would you suggest that all ACLU legal advocates have their opinions screened to assure that they match ACLU positions? All positions?"

Cole isn't just any employee, he's not some grunt just executing policy. He's the guy they hired to MAKE the policies the grunts execute.

If they didn't want a policy of gradually reversing their win in Citizens United, they wouldn't have hired a guy famous for urging exactly that to make their policy.

[Bwaaah]

I'm only narrowly disputing the point that personnel are policy. As I wrote this, I realized the distinction between a director and a hired hand is an important one, and indeed, this appears to be the dog and not the tail.

I wanted to say that Cole reflects the changes in the ACLU's positions rather than drives them. But looking at the timing of the changes and their now half-throated defense of Citizens United, I have trouble believing myself. Cole's opinion in that matter is now indistinguishable from the ACLU's; the ACLU's position is now indistinguishable from Cole's.

I concede the point in this example.

[Ed Grinberg]

.

This country desperately needs a REAL civil liberties defender. Not just one willing to defend civil liberties when more important interests aren’t a stake.

How's this:

We will defend the rights of all Americans from attacks by anyone, in any party, who would seek to attack their freedom, their dignity, and their equal rights under the law.

source: https://aflegal.org/about/

[Absaroka]

That sounds great! When I perused their 'litigation' page, though, the cases all seemed to be on one side of the political spectrum. Did I miss some cases that would show a willingness to litigate in favor of 'all Americans', across the political spectrum?

[Bwaaah]

From AFLegal's mission:

"The radical left is using its power inside and outside of the government to destroy our country."

I don't see how such a remark in a mission statement can possibly portend any less than partisan advocacy.

[ObviouslyNotSpam]

It sounds like the "About Us" page from Trump Legal.

[Noscitur a sociis]

Remember Brett: Don't make it too easy for people to agree with you.

[Rev. Arthur L. Kirkland]

"The ‘so what?’ is that we know the ACLU is unprincipled"

Disaffected, delusional, antisocial, obsolete, and bigoted is no way to go through life.

[Kazinski]

Well there is the NCLA, EV is on the board:

https://nclalegal.org

[Rev. Arthur L. Kirkland]

There's a wingnut AARP, a wingnut ACLU, a wingnut NAACP, a wingnut ABA, a wingnut American Library Association, a wingnut AMA, etc. Alternative organizations for the "alternative facts" crowd. They tend to rake in cash from society's disaffected losers and give clingers a chance to feel like they belong to something other than the doomed side in the culture war.

[Jonathansingletary]

I love how much EV seems to delight in pluralism and the odd bedfellows it creates. This is, to me, what makes good democracy. Cheers, EV!

[Rev. Arthur L. Kirkland]

That must be why he is so disaffected with respect to modern America; associates with so many separatist conservative organizations; and is departing a mainstream campus for a right-wing mouthpiece operation.

[Z Crazy]

They both stand for the crook and the mugger and the carjacker and the gang member.

[Krayt]

That's the meme behind the epithet, "Card-carrying member of the ACLU!"

Those are small time bad guys compared to the monstrosities of the powerful plaguing humanity, which said constitutional rules are designed to hamper.

Such as the powerful turning the investigative and prosecutorial power of government against political enemies. In more modern societies with rules against this, they strive mightily to facetiously feign compliance.

[Edmund Burke's Hastings spy]

Yet the ACLU opposed strongly Kamala Harris doing the same thing, and the Supreme Court also came down against her. She is stupid and she brings evil in her wake. This case is that case , again.
===================
Supreme Court Protects Non-Profit Donors From Kamala Harris’s Unconstitutional Disclosure Requirements
JULY 1, 2021
Earlier today, the Supreme Court released its opinion in Americans for Prosperity v. Bonta, formerly entitled Americans for Prosperity v. Becerra. Through the 6-3 decision, the Court upheld imperative constitutional speech rights, guaranteed by the First Amendment.

[Stephen Lathrop]

Comments full of complaints, none of which seem to address coerced government speech. Where is the 1A connection?

[not guilty]

The linked ACLU piece states:

Maria Vullo followed the same playbook. As the state’s top financial regulator, in coordination with then-Governor Andrew Cuomo, she expressly targeted the NRA for its “gun promotion” advocacy and urged all the banks and insurance companies she regulates to refuse to do business with the NRA. She offered leniency to one insurer for legal infractions if it would cut its ties to the NRA, and extracted promises from the NRA’s three largest insurance partners never to provide “affinity insurance” to the group’s members ever again.

If that is true, the state regulatory actors' discouraging private entities from doing business with the NRA because of the group's political advocacy runs afoul of the First Amendment.

[Stephen Lathrop]

not guilty, thank you. I will have to think on this a bit. I see a little reason for concern in that record, but probably less concern than you think is due. After thought, I may change my mind and be argued closer to the point I understand most folks prefer.

I begin with a collateral analysis, which maybe is not on point, but whether it is on point remains the part I need to ponder. It starts with looking at the issue of the 1A and government pressure from the point of view of a publishing business.

On one hand, I remain firm, like nearly everyone, that private expression compelled by government violates the 1A. If government says,"Print this or we shut you down," that is a 1A violation. Likewise in the case of, "Don't print that or we shut you down."

On the other hand, I deny that a private party, for instance a publisher, is not at liberty to print at its own volition whatever expressions government prefers, but does not coerce. In that instance, the publisher simply agrees with government, and anything which ruled against that liberty to agree and express would itself violate the publisher's 1A rights. I assume almost everyone could see that and agree with it.

To make it more complicated, what do we conclude if the publisher is ambivalent in its views, but decides after urging from government that it agrees with government's view? Can some third party, with interests the government's view burdens, claim benefit of a 1A right on behalf of the publisher, and sue government—or maybe sue the publisher on the basis of the interested party's own claim of 1A right?

Or in a case such as that, does the burdened party simply assert that government is powerless under the 1A to urge expressions which adversely affect it? Or does it go still farther? Does government owe a 1A duty to avoid burdening that party in the marketplace of ideas at all, whether through a publisher or not?

I think all such assertions against government expression ought to be dismissed, but understand that some will see it otherwise.

Perhaps the final step in this line of argument is to ask what happens if government strongly but not actually coercively urges a publisher to withhold publication of some view the publisher strongly prefers to publish. But for business reasons, or over-caution, or for fear of government retaliation which has not been threatened, the publisher decides it is wiser not to publish what it wished to publish. Is there any reason to suppose that the 1A does not equally protect a publisher's judgment not to defy government for prudential reasons (or even for cowardly reasons), as it does to protect a publisher's defiance of government? Whatever you think, the analysis would be the same if the publisher were urged strongly toward publication, and gave in despite wishing not to publish.

The larger question in either case, it seems to me, is whether we leave it to the publisher's own judgment what best protects its own power to achieve its own long-term expressive freedom to the maximum extent its resources and preferences permit. Some publishers have more defensive power than others. Some must manage wisely simply to avoid going out of business for want of means to pay for legal protection in civil court.

So the question left as I see it, is which of the legal contingencies suggested by your quote involve 1A issues at all. Perhaps all the practices mentioned deserve legal prohibition, or are already subject to it, but it is hard for me to see how most (or maybe any) of that legal jeopardy would be more legitimately founded on a 1A analysis than on some other legal theory. And I am concerned that if a 1A analysis becomes the basis, reliance on it by third parties in civil court might actually narrow the practical 1A scope for reaction my hypothetical private publisher ought to enjoy.

[David Nieporent]

Of course, nothing in this issue has the slightest thing to do with publishers or publishers' decisions, but you've managed to ramble on for 10 paragraphs and 669 words about this irrelevant topic nonetheless.

[Bored Lawyer]

Since this is not a coerced-speech case, no one mentioned that.

This is punishing someone for their speech, by pressuring private parties to stop giving them services.

[Stephen Lathrop]

Why are the private parties not at their own 1A liberty to withhold services if they disagree with the speech? I assume if they are not thus at liberty, it is not because of the 1A, but because laws founded on some other legal basis forbid it.

So on what basis does it make sense to turn this into a 1A case, instead of simply suing or prosecuting parties which withheld services which they were otherwise legally forbidden to withhold?

[Absaroka]

"Why are the private parties not at their own 1A liberty to withhold services if they disagree with the speech?"

Generally speaking, they are, as long as they are not a regulated utility or common carrier or something, and the discrimination isn't against a protected class. Your restaurant can require ties and jackets, but not exclude Catholics, while the gas company can't refuse service to Lithuanian-Americans or people who eat their steaks well done.

Which has naught to do with this case. This is about whether the IRS can say they plan to go over your return with a fine tooth comb if you sell your photographs to someone advocating the repeal of S230. You are free to make that choice on your own, but the IRS can't threaten you with an audit for selling your photographs to people holding positions the IRS doesn't like.

[David Nieporent]

Why are the private parties not at their own 1A liberty to withhold services if they disagree with the speech?

Why are you talking about private parties?

[David Nieporent]

Do you see that this is NRA vs. Vullo? Are you under the impression that Vullo is a "private party"? Because if you had bothered to read the post before commenting, you'd have seen, "Maria Vullo, a New York state regulator…" Hint: a "New York state regulator" is a government official, not a private party.

[Stephen Lathrop]

Nieporent, I was replying to not guilty, who wrote this:

If that is true, the state regulatory actors’ discouraging private entities from doing business with the NRA because of the group’s political advocacy runs afoul of the First Amendment.

not guilty also excerpted text which generally described multiple private-party businesses, such as banks and insurance companies.

Of course I get that this case is going to be a big-deal libertarian cause for you. But think it over. You constantly, and mostly rightly, insist that everyone enjoys 1A expressive freedom on the same terms as everyone else.

I take that to mean that if 1A-related facts in NRA vs. Vullo—with regard to private parties such as those mentioned by not guilty—are not of a sort which would coerce a private publisher, then neither are they of a sort which ought as a legal matter to coerce a bank or an insurance company—and for the same reasons.

Those banks and insurance companies should enjoy the same liberty as any publisher to adjust their business practices, and their expressive choices, in response to attempted government persuasion. If a publisher is at liberty under the 1A to back down when pressured by government, then so is a bank or insurance company. If a publisher has a 1A protected right to agree with government insistence, then so should a bank or insurance company. If a publisher has a 1A protected right to agree reluctantly, while wishing it was more practical to resist, then so does a bank or insurance company.

Note that I am not saying that means the NRA’s own advocacy has not been interfered with. I am saying that the route to decide that question cannot run through a private third party company which has every right to do as the government prefers, or even as the government insists. I am saying that the NRA bears the burden to show that its expressive freedom has been coerced by the government, and to do it without turning other private actors into sock puppets on the NRA’s behalf. If the private parties have not in fact been coerced, then neither has government coercion infringed the 1A expressive rights of the NRA.

Hypothetically, consider an insurance company which sold policies to the NRA despite reservations among its managers about the NRA’s policies, its public advocacy, and the uses to which the insurance was put. Maybe management was intimidated, and did not want to be targeted publicly by the NRA and its members. Or maybe the legal staff thought it best not to exclude NRA business for reasons which might be deemed arbitrary, and risk some kind of legal action. So when the government shows up to say, “You should consider not doing business with the NRA,” it furnishes a ready cover for what the company always wanted to do anyway. The NRA might trumpet that as coercion, but it would not be.

Of course, if the facts are different, and the insurance company prized the NRA as a client, but the government showed up to say, “Cut the NRA off or we will shut you down,” then yeah, that’s government coercion, and violates the 1A rights of the NRA.