This piece originally appeared on the Federalist Society blog on June 11, 2024.
The United States Supreme Court issued a major free speech decision expanding the protections for political speech against regulatory intimidation by New York state. But this victory won’t be fully secured until another decision drops.
NRA v. Vullo was a unanimous decision that concluded the NRA properly stated a claim under the First Amendment when it alleged New York insurance regulators threatened to punish insurers who did business with the NRA, including issuing affinity policies to NRA members.
For the Court, Justice Sotomayor began by discussing an earlier free speech case called Bantam Books. In Bantam, the Court held that a Rhode Island obscenity regulator violated the First Amendment rights of book publishers by sending notices to booksellers and distributors that threatened a prosecutorial referral if blacklisted obscene books were not removed from inventory. “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.”
This is an important proposition of law, but the Court in Vullo did not merely restate the holding of Bantam Books. Rather, Vullo expands the protections afforded to political speakers against government interference beyond only government coercion of intermediaries, to government use of intermediaries to conduct viewpoint discrimination.
Vullo contains the first statement in a free speech case that “a government official cannot do indirectly what she is barred from doing directly.” This statement begins to shift the focus away from whether an intermediary was coerced—which, by its nature, is difficult to discover and prove—and toward an analysis of the government’s own actions and intentions.
A coerced intermediary will not be eager to admit to having been intimidated and might not care about the political speech being abridged, since the speech is that of a third party. Spotlighting the actions and intent of the government official to remove protected political speech makes it easier to vindicate First Amendment rights. Similar to the crime of “attempt,” the offensive conduct here is the effort of the governmental official to have speech silenced. The offense is present regardless of whether the government succeeded in the effort.
Next, the Court stated that the multifactor coercion test in Bantam Books provides merely “helpful guideposts” in the analysis. In his single-page concurrence, Justice Gorsuch expanded on this point. “Whatever value these ‘guideposts’ serve, they remain ‘just’ that and nothing more. ‘Ultimately, the critical’ question is whether the plaintiff has ‘plausibly allege[d] 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.’”
This is an indication that the Court will not rely on a malleable, multifactor standard that gives courts too much discretion, which leads to unpredictability potentially at the expense of core political speech. Since Bantam Books, the courts of appeals have resolved questions about government pressure with squishy, multifactor balancing tests that turn largely on judicial discretion. Those tests have lured courts into weighing things like “tenor” and “tone” to decide whether this word or that word transforms persuasion into coercion.
Deemphasizing the multifactor test is also noteworthy because lower courts have long treated the coercion factors present in Bantam Books as necessary to find a free speech violation based on third-party coercion. This is not tenable after Vullo. The Court is turning the focus to the government action, not the intermediary’s reaction.
The factors used in Bantam Books made sense there, but not here, in part because the earlier case involved regulation of “low speech”—obscenity—whereas Vullo involved core political speech deserving the highest protection against restraint. The Court said, “Bantam Books held that the commission violated the First Amendment by invoking legal sanctions to suppress disfavored publications, some of which may or may not contain protected speech (i.e., nonobscene material).”
Sotomayor concluded her opinion for the Court with a powerful statement of the holding: “the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries.”
There is no reference to coercion. Instead, the Court focuses on the fact that, when the government acts through intermediaries, coercion is sufficient to establish a First Amendment violation—but it isn’t necessary.
Under this holding, government actions to censor political speech by inducing, or even coordinating with, private parties to suppress protected speech should be found to violate the Free Speech Clause because the focus is on the government action—not the intermediary’s mental state when complying with the government’s censorship request.
In other words, a secret governmental request to remove the political speech of another from the public discourse violates the First Amendment regardless of whether the intermediary admits to being coerced by the “request.” The government’s effort to remove protected speech is the evil that the Free Speech Clause protects against. It doesn’t really matter how the government goes about accomplishing these ends. Whether acting directly or indirectly, the government will have silenced political speech.
The pending case, Murthy v. Missouri, originally styled as Missouri v. Biden, was argued the same day as Vullo. Murthy presents similar issues and will be decided this term. The Murthy decision presents the opportunity for the Court to double down on preventing the government from indirectly silencing political speech it does not like.
The merits question in Murthy involves the federal government’s efforts to silence the expression of views on social media that the government did not like. This effort largely centered on speech concerning the COVID-19 pandemic—issues such as the origin of COVID-19, and the efficacy and safety of masking and vaccines. Officials “flagged content for removal.” They asked the platforms to “deplatform[ ]” and “downgrad[e]” speech they did not like. In one example, an official told a platform that “‘removing bad information’ is ‘one of the easy, low-bar things you guys [can] do to make people like me think you’re taking action.’” The government’s “requests” were clear: take down the speech that’s causing the White House problems.
The Vullo holding maps onto Murthy. Yet the result is not certain. There are vehicle problems in Murthy, including questions of standing, redressability, factual ambiguities, and a very broad injunction. These problems may mean that a majority of the Court doesn’t get to the merits issue at all.
Nor is the merits issue assured. At oral argument, Justices Kagan and Kavanagh equated the facts of Murthy with the jawboning of journalists they each did when they worked in the executive branch. Additionally, Justice Kagan referred to social media posts as the speech of the platforms—Facebook, X (formerly Twitter), YouTube, etc.—and not of the individuals posting the speech. This may signal that the Justices’ views of the proper outcome of the pending NetChoice cases will affect the Murthy decision.
First Amendment decisions should always be based on principle, not on whose ox is being gored. Here, those who supported the COVID-19 protocols may find themselves wanting to root for the government in Murthy. But those who don’t see the potential danger of Biden administration officials coordinating with Twitter may have newfound clarity in the wake of recent news that former President Trump is considering an advisory role for Elon Musk in his next administration should he win the 2024 presidential election. The prospect of Trump administration officials potentially coordinating with the owner of X to remove speech Trump doesn’t like demonstrates that all oxen will be gored when free speech is not adequately protected.
Vullo is a robust, pro-free speech First Amendment decision. Free speech advocates now await the Murthy decision to see just how durable and far-reaching that victory is.
