Former President Donald Trump’s conviction by a Manhattan jury two Thursdays ago so overwhelmed the news cycle that there was inadequate time for a proper analysis of the Supreme Court’s decision in NRA v. Vullo, which was handed down the same day.
The unanimous court in Vullo held that the National Rifle Association (NRA) had sufficiently alleged a First Amendment claim against the New York superintendent of financial services. While the vindication of free speech rights is the top-line takeaway from Thursday’s 9-0 decision, there is much more to glean from the 20-page opinion and two concurrences. Here are five key points.
1. The Decision Focused Solely on Government Coercion
The Supreme Court in Vullo held that the NRA had properly stated a First Amendment claim against Maria Vullo, the former superintendent of the New York Department of Financial Services (DFS). To reach that conclusion, the high court applied a “coercion” standard based on its precedent in Bantam Books.
In Bantam Books, the Rhode Island Commission to Encourage Morality in Youth distributed to a wholesaler a list of books published by Bantam Books that it judged “objectionable for sale, distribution or display to youths under 18 years of age.” The commission also provided the list to the local police force, which later visited the wholesaler to ask whether the books were being distributed in the state. The Supreme Court in Bantam Books held the commission violated the publisher’s First Amendment rights by “deliberately set[ting] about to achieve the suppression of publications deemed ‘objectionable’ and succeeded in its aim.”
The Vullo decision opened by noting that “Bantam Books provides the right analytical framework for claims that the government has coerced a third party to violate the First Amendment rights of another.” “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 explained.
The opinion then reviewed the allegations of Vullo’s conduct, before holding the NRA “plausibly alleges that Vullo threatened to wield her power against those refusing to aid her campaign to punish the NRA’s gun-promotion advocacy.” Those allegations, if true, would constitute a First Amendment violation, the court held.
The court’s analysis proves significant because currently pending before the Supreme Court is another important First Amendment case: Murthy v. Missouri. In that case, the states of Louisiana and Missouri, along with several individual plaintiffs, sued numerous federal agencies alleging the defendants violated their First Amendment rights by pressuring social media platforms to censor disfavored speech.
In Murthy, the court is grappling with whether the plaintiffs must prove the government “coerced” the third parties to censor their speech, or whether liability under the First Amendment may arise under other circumstances. While Vullo applied a “coercion” framework to analyze the NRA’s First Amendment claim, the court in that case stressed that the parties had agreed the coercion standard governed the NRA’s free speech claim. Thus, Vullo cannot be read to hold that a First Amendment violation may only occur where the government “coerces” a third party to censor speech.
2. Some Great Language for Lovers of Free Speech
The Vullo court’s focus on the coercion framework may give some lovers of the First Amendment pause, but it shouldn’t. Not only did the court apply that standard because the parties had agreed it controlled, but the opinion gave the concept of “coercion” a broad reading.
“As alleged,” the court explained, “Vullo’s communications with [the third-party insurer] can be reasonably understood as a threat or as an inducement. Either of those can be coercive.” “The Constitution does not distinguish between ‘comply or I’ll prosecute’ and ‘comply and I’ll look the other way,’” the Supreme Court explained, stressing whether something is “analyzed as a threat or as an inducement,” is irrelevant—“the conclusion is the same,” namely the communications are “coercive” and thus violate the First Amendment.
This judicial gloss to “coercion” provides a fulsome protection of free speech rights by allowing “coercion” to be established by either “a threat” or “an inducement.” The court’s unanimous opinion includes additional broad language further protecting American rights to freedom of speech.
For instance, the court stressed that, at its core, the First Amendment’s Free Speech Clause recognizes that viewpoint discrimination is uniquely harmful to a free and democratic society. The opinion also emphasizes that the First Amendment prohibits government officials from using their power to selectively punish or suppress speech, whether directly or through private intermediaries. This language, coupled with the court’s interpretation of “coercion,” represents a solid win for free speech.
3. The Disinformation Industry Are The Baddies at Protecting Democracy
In ruling in favor of the NRA, the Supreme Court stressed that “at the heart of the First Amendment’s Free Speech Clause is the recognition that viewpoint discrimination is uniquely harmful to a free and democratic society.” That passage provides an important reminder to Americans of the value of diverse viewpoints in the marketplace of ideas and a warning that suppressing disfavored speech is inherently destructive to a sustained democracy.
While the First Amendment only prohibits state actors from abridging freedom of speech, the court’s language makes clear that the value of free speech extends beyond constitutional mandates. And private actors—especially those managing monopolistic or near-monopolistic speech platforms—engaging in viewpoint discrimination thus undermine a free and democratic society. Vullo’s reminder that viewpoint discrimination threatens a free and democratic society reprimands private censors operating under the auspices of protecting society.
4. Some Problematic Language
While the Supreme Court’s recent decision in Vullo provides some positive glosses to the First Amendment and represents a solid victory for free speech, there are two concerning aspects of the opinion. First, the unanimous opinion gave scant attention to the plain language of the First Amendment, which explicitly prohibits the “abridging” of freedom of speech. By instead focusing on coercion, the Supreme Court risks inappropriately contracting the protections of the First Amendment.
The Supreme Court’s discussion of government speech in Vullo is also concerning because the opinion framed that doctrine so broadly it would seemingly allow for the federal government—under the guise of expressing its viewpoints—to call for the censorship of private speech, so long as there is no visible government coercion. For instance, the court wrote: “A government official can share her views freely and criticize particular beliefs, and she can do so forcefully in the hopes of persuading others to follow her lead. In doing so, she can rely on the merits and force of her ideas, the strength of her convictions, and her ability to inspire others.”
This language suggests that, so long as it does not coerce third parties to censor speech, the government is free to forcefully argue that such private censorship should take place. The government speech doctrine is not nearly so broad, however, and in the context of the federal government, the right to speak comes solely from the government’s need to engage in expressive conduct to govern effectively.
Absent extraordinary circumstances, such as in times of war, the ability to govern does not depend on the ability to seek private censorship. To the contrary, the government, when speaking, must abide by the same constitutional limitations as other forms of government action, including the First Amendment’s prohibition on abridging freedom of speech.
Vullo’s overbroad synopsis of the government speech doctrine and its failure to focus on the text of the First Amendment and the question of whether the defendant’s conduct “abridges” freedom of speech raises concerns. Time and future decisions will tell if those concerns are justified.
5. Reading the Tea Leaves
The Vullo decision, or more precisely Justice Ketanji Brown Jackson’s concurrence in the case, suggests the Supreme Court will shortly provide broad protection to free speech rights. Murthy v. Missouri concerns whether a lower court properly enjoined several federal agencies from coordinating censorship of disfavored views with social media companies.
While predicting the outcome of a decision before the Supreme Court is fraught with danger, it remains a favorite pastime of court watchers. And watching how Justice Jackson framed her concurrence in Vullo suggests she has a forthcoming disagreement with the court on other First Amendment issues. For instance, Justice Jackson wrote that while “coercion of a third party can indeed be a means by which the government violates First Amendment rights, coercion alone is not sufficient to establish a violation.” Rather, “courts must also assess how the coercion impacts the speaker’s First Amendment rights.”
That Justice Jackson stressed that coercion alone, in her view, is insufficient to establish a First Amendment violation suggests that other justices believe it is enough. Now where would that issue arise? Murthy v. Missouri. In Murthy, on multiple occasions the government sought to coerce third parties, but in some instances its threats did not work.
Might Justice Jackson be signaling a fracture between the Supreme Court on this issue? If so, Justice Jackson’s concurrence in Vullo might serve as a foundation for a dissent in Murthy. Again, time will tell—and here the time is short, with the court’s 2023-24 term nearly over.
Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.
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