Courts Must Distinguish Between the Bully Pulpit and Bullying to Stop Abridgements of Free Speech
The Constitution allows the government to express its views from the bully pulpit but prohibits bullying people into silence.
The government generally may select its views and say what it wishes. But the Supreme Court made clear in Bantam Books v. Sullivan (1963) that government may not resort to even “informal sanctions,” such as “the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation,” to suppress speech it doesn’t like. As Justice Alito has opined, separating valid uses of the bully pulpit from unconstitutional bullying is crucial to prevent “government-speech . . . from being used as a cover for censorship.” Yet the recent case of NRA of America v. Vullo (2nd Circuit 2022) demonstrates how courts across the country have retreated from Bantam Books and allowed government officials to target speech they dislike.
In NRA of America v. Vullo, the head of New York’s Department of Financial Services (DFS) launched investigations—at the behest of a gun control activist group—into insurance programs promoted by the NRA. DFS then held backchannel meetings urging insurers to stop doing business with gun groups and issued official guidance documents—on DFS letterhead and addressed to CEOs of DFS-regulated institutions—which noted a “social backlash against the [NRA] and similar organizations” and “encourag[ed] regulated entities to review any relationships they have with the NRA or similar gun promotion organizations, and to take prompt actions to manag[e] these risks and promote public health and safety.” The accompanying press release “urge[d] all insurance companies and banks doing business in New York to join the companies that have already discontinued their arrangements with the NRA.” How subtle.
The Second Circuit concluded these allegations “do not plausibly amount to an unconstitutional threat or coercion to chill the NRA’s free speech,” and stressed the statements “were written in an evenhanded, non-threatening tone” and “did not refer to any pending investigations or possible regulatory action.”
The Second Circuit’s ruling, in the words of the ACLU, “set a dangerous precedent for advocacy groups across the political spectrum.” The court ignored the Supreme Court’s instructions in Bantam Books to “look through the forms to the substance” of alleged threats and instead downplayed the government’s coercive actions while viewing its words through rose-tinted glasses. The court also ignored its own precedent in Okwedy v. Molinari (2003), which said it was unconstitutional for government officials to attempt to “employ coercive state power to stifle protected speech” even when the threats are implicit, and the government official doesn’t have regulatory authority over the victim. But in Vullo, the court blessed thinly-veiled threats from the head of a regulatory agency issued in official guidance documents addressed specifically to its regulated entities. Indeed, as the ACLU noted in an amicus brief at the district court level, the Second Circuit’s reasoning provides government officials a “playbook for abusing their regulatory power to harm disfavored groups without triggering judicial scrutiny.”
NCLA’s Missouri v. Biden case demonstrates government officials need neither direct regulatory authority nor an explicit threat to abridge your First Amendment rights and cross the line separating valid use of the bully pulpit from unconstitutional bullying. Thankfully, the Supreme Court has an opportunity to correct the Second Circuit’s mistake and reaffirm the protections of the First Amendment and Bantam Books, as the NRA has asked the Court to take up its case.
The Constitution requires blind justice, not judges wearing blinders. As the NRA’s petition explains, judges should protect our First Amendment rights by engaging with the evidence and evaluating government coercion claims “based on substance” instead of a decontextualized analysis of “whether government officials use particular magic words.”
June 16, 2023