In its most recent decision examining the interaction between government and the private sector to silence disfavored viewpoints, the U.S. Supreme Court delivered a resounding victory for free speech. The decision reaffirmed the necessity of protecting the First Amendment right of Americans to freely express their beliefs, even if they are unpopular or controversial.
In the aftermath of the 2018 shooting at Marjory Stoneman Douglas High School in Parkland, Florida, the superintendent of New York’s Department of Financial Services, Maria Vullo, began a campaign against the National Rifle Association. The Court’s opinion noted that “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.” She also sent “guidance letters” to banks and insurers and issued a press release encouraging them to assess the “reputational risk” of doing business with the NRA and to sever ties and cease doing business with the organization.
The NRA sued Vullo, claiming she had effectively outsourced censorship by coercing private businesses to silence the NRA’s viewpoint. Alliance Defending Freedom filed a “friend of the court” brief on behalf of Heartbeat International, a network of pro-life pregnancy centers that has, like the NRA, been denied insurance for seemingly political reasons. The brief supported the NRA and highlights the risks of indirect censorship and harms of de-banking.
The NRA argued that the use of the regulatory power of government to force private businesses to suppress an opinion disfavored by the government is a blatant attempt at an end-run around the First Amendment. The Supreme Court agreed: “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. 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.”
There are three factors about this case that should encourage you for the future of free speech in America. First, the decision itself. The NRA’s victory indicates that the U.S. Supreme Court recognizes that methodologies might change over time, but foundational principles do not. The fact that the state of New York did not directly attack the NRA’s ability to advocate for the Second Amendment but instead strong-armed private sector businesses to do so was still held to be a violation of the First Amendment. This should send a clear signal to all state governments, the federal government, and the most powerful private industries in our country that indirect censorship is still censorship and unconstitutional. Concentrated power in the business world put to use at the behest of government is a threat to liberty and anathema to our founding ideals.
Second, the opinion was unanimous (9-0). Unanimous Supreme Court opinions are more common than most casual court-watchers may realize. However, it is still heartening to observe that even on a controversial cultural issue, the Court spoke with one voice, without dissent, in favor of free speech. Regardless of the variety of constitutional interpretive philosophies held by the justices, all nine saw this case the same way.
Third, the ACLU represented the NRA. ACLU National Legal Director David Cole, who argued the case, said, “Today’s decision confirms that government officials have no business using their regulatory authority to blacklist disfavored political groups.”
The NRA experienced firsthand how it is extremely difficult to advocate for the Second Amendment without the First. While the ACLU is ideologically opposed to the NRA, it was still willing to defend the NRA’s right to speak. Hopefully, this serves as an example for Americans at all points along the political and ideological spectrum that freedom of speech is essential to civil discourse in a republic. We must be willing to defend freedom for all, not just those with whom we agree.
When the government is allowed to pick and choose winners in public debate, giving its favored viewpoint protection and silencing all others, all Americans lose. The whims of the electorate can be fickle, and the winds of culture often shift direction suddenly, so protecting the rights of those with whom we disagree is the only way to protect ourselves when our most cherished ideals fall out of fashion with the governing majority.
Whether it is big government, big tech, or big banks, the concentration of power utilized to cancel, silence, and suppress speech is a distressing rising global tide. Yet we see in cases like NRA v. Vullo that our Constitution is still a reliable bulwark.
