Category Archives: First Amendment

From Justice Barrett's concurrence in today's Moody v. Netchoice, LLC:

Consider, for instance, how platforms use algorithms to prioritize and remove content on their feeds. Assume that human beings decide to remove posts promoting a particular political candidate or advocating some position on a public-health issue. If they create an algorithm to help them identify and delete that content, the First Amendment protects their exercise of editorial judgmenteven if the algorithm does most of the deleting without a person in the loop. In that event, the algorithm would simply implement human beings' inherently expressive choice "to exclude a message [they] did not like from" their speech compilation.

But what if a platform's algorithm just presents automatically to each user whatever the algorithm thinks the user will likee.g., content similar to posts with which the user previously engaged? The First Amendment implications of the Florida and Texas laws might be different for that kind of algorithm.

And what about AI, which is rapidly evolving? What if a platform's owners hand the reins to an AI tool and ask it simply to remove "hateful" content? If the AI relies on large language models to determine what is "hateful" and should be removed, has a human being with First Amendment rights made an inherently expressive "choice not to propound a particular point of view"? In other words, technology may attenuate the connection between content-moderation actions (e.g., removing posts) and human beings' constitutionally protected right to "decide for [themselves] the ideas and beliefs deserving of expression, consideration, and adherence." So the way platforms use this sort of technology might have constitutional significance."

Likewise, see Justice Alito's concurrence in the judgment, joined by Justices Thomas and Gorsuch:

[C]onsider how newspapers and social-media platforms edit content. Newspaper editors are real human beings, and when the Court decided Miami Herald Co. v. Tornillo (1974) (the case that the majority finds most instructive), editors assigned articles to particular reporters, and copyeditors went over typescript with a blue pencil. The platforms, by contrast, play no role in selecting the billions of texts and videos that users try to convey to each other. And the vast bulk of the "curation" and "content moderation" carried out by platforms is not done by human beings. Instead, algorithms remove a small fraction of nonconforming posts post hoc and prioritize content based on factors that the platforms have not revealed and may not even know.

After all, many of the biggest platforms are beginning to use AI algorithms to help them moderate content. And when AI algorithms make a decision, "even the researchers and programmers creating them don't really understand why the models they have built make the decisions they make." Are such decisions equally expressive as the decisions made by humans? Should we at least think about this?

My coauthors Mark Lemley and Peter Henderson and I have argued that AI output is generally protected by the First Amendment (without focusing specifically on AI curation). But the Justices certainly raise important questions, which lower courts are now especially likely to consider.

Link:
Four Justices in Netchoice Flag Question Whether First Amendment Protects AI-Curated Materials - Reason

The First Amendment Award is presented by the Ohio APME for a distinguished contribution to freedom of the press. The recipient committed all necessary resources to overcome obstacles on behalf of the unrestricted flow of information vital to free society. By so doing, the recipient has served the public and has honored journalism, according to APME.

The reporting effort recognized was work by the Dayton Daily News that made available to the public information about a sexual assault case involving former Montgomery County assistant prosecutor John Amos.

The Dayton Daily News is listed as a finalist in 15 other categories. APME will announce at an awards ceremony on July 21 what place was awarded in each category.

1. Best Public Service: For in-depth reporting by Avery Kreemer on Ohios abortion battle.

2. Best Explanatory Reporting: For detailed reporting helping taxpayers understand last years historic property value increase and how it impacts them.

3. Best Enterprise Reporting: Sydney Dawes, for in-depth reporting on how toxic chemicals got into local drinking water supplies and what can be done about it.

4. Best Feature Photo: Bill Lackey for photos from Crawl for the Roses baby race at Mother Stewarts.

5. Best Digital Project: For the Dayton Daily News project Billions in COVID aid: Wheres it going?, which tracked COVID relief spending across the region.

6. Best Business Writer: Lynn Hulsey, for in-depth reporting on topics such as consumer spending, the childcare crisis and development around the airport.

7. Best Sports Columnist: Tom Archdeacon, for work including An angel appears at home plate, and Its a place where I love to be Ebonie Sherwood back on sidelines at Stebbins.

8. Best Sports Feature Writer: Tom Archdeacon, for work such as Nine fingers up, Oregon District hero Jeremy Ganger remembers and The incredible story of Daytons fencing police officer.

9. Best Sports Writer: Tom Archdeacon, for his body of work.

10. Best Illustration or Informational Graphic: For Daytons own Routes and Ladders, designed by Adrian Zamarron.

11. Best Columnist: Ray Marcano for columns such as This is what a power grab looks like, and COVID isnt done with us.

12. Best Editorial Writer: Nick Hrkman for editorials on multiple topics including last years push to amend Ohios constitution.

13. Best Graphics Artist: Alexis Larsen, for informational graphics on topics such as public comment to Ohio Medicaid on estate recovery, and the future of office space.

14. Best Daily Sports Section: For sports coverage in the Dayton Daily News.

15. Best Digital Presence: For the Dayton Daily News complete digital presentation, including website, social media and apps.

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Dayton Daily News wins First Amendment Award, is finalist in 15 other categories in statewide awards - Dayton Daily News

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Exotic Dancer First Amendment | National | reflector.com - The Daily Reflector

(Rafael Henrique | Dreamstime.com)

In today's ruling in Moody v. NetChoice, addressing challenges to Texas and Florida laws severely limiting social media content moderation, the Supreme Court declined to issue a final ruling on the merits, for procedural reasons. But in remanding the cases to the lower courts, Justice Elena Kagan's majority opinion also established standards under which the major provisions of the two laws would almost certainly have to be ruled unconstitutional. I was highly critical of last week's decision denying standing to plaintiffs challenging the federal government's efforts to pressure social media firms to take down posts. Today's ruling is far better. Hopefully, the Court will eventually make clear that the government is presumptively barred from either forcing social media providers to take down posts it disapproves of or forcing them to post material the website owners object to.

The reason why the Court decided not to issue a final decision is that the lower courts did not engage in extensive enough fact-finding and analysis to consider a facial challenge to the constitutionality of the laws as a whole:

Today, we vacate both decisions for reasons separate from the First Amendment merits, because neither Court of Appeals properly considered the facial nature of NetChoice's challenge. The courts mainly addressed what the parties had focused on. And the parties mainly argued these cases as if the laws applied only to the curated feeds offered by the largest and most paradigmatic social-media platforms. But argument in this Court revealed that the laws might apply to, and differently affect, other kinds of websites and apps. In a facial challenge, that could well matter, even when the challenge is brought under the First Amendment. As explained below, the question in such a case is whether a law's unconstitutional applications are substantial compared to its constitutional ones. To make that judgment, a court must determine a law's full set of applications, evaluate which are constitutional and which are not, and compare the one to the other. Neither court performed that necessary inquiry..

To succeed on its First Amendment claim, NetChoice must show that the law at issue (whether from Texas or from Florida) "prohibits a substantial amount of protected speech relative to its plainly legitimate sweep." Hansen, 599 U. S., at 770. None of the parties below focused on that issue; nor did the Fifth or Eleventh Circuits. But that choice, unanimous as it has been, cannot now control. Even in the First Amendment context, facial challenges are disfavored, and neither parties nor courts can disregard the requisite inquiry into how a law works in all of its applications. So on remand, each court must evaluate the full scope of the law's coverage. It must then decide which of the law's applications are constitutionally permissible and which are not, and finally weigh the one against the other. The need for NetChoice to carry its burden on those issues is the price of its decision to challenge the laws as a whole.

But in remanding the cases, the majority lays out "relevant constitutional principles, and explain how" the Fifth circuit "failed to follow them" when it upheld the Texas social media (the Eleventh Circuit had invalidated most of Florida's law). The Court's three principles are devastating to the states' laws:

First, the First Amendment offers protection when an entity engaging in expressive activity, including compiling and curating others' speech, is directed to accommodate messages it would prefer to exclude. "[T]he editorial function itself is an aspect of speech." Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 737(1996) (plurality opinion).. And that is as true when the content comes from third parties as when it does not. (Again, think of a newspaper opinion page or, if you prefer, a parade.) Deciding on the third-party speech that will be included in or excluded from a compilationand then organizing and presenting the included itemsis expressive activity of its own. And that activity results in a distinctive expressive product. When the government interferes with such editorial choicessay, by ordering the excluded to be included it alters the content of the compilation. (It creates a different opinion page or parade, bearing a different message.) And in so doingin overriding a private party's expressive choicesthe government confronts the First Amendment

Second, none of that changes just because a compiler includes most items and excludes just a few. That was the situation in Hurley. The St. Patrick's Day parade at issue there was "eclectic": It included a "wide variety of patriotic, commercial, political, moral, artistic, religious, athletic, public service, trade union, and eleemosynary themes, as well as conflicting messages." 515 U. S., at 562. Or otherwise said, the organizers were "rather lenient in admitting participants." Id., at 569. No matter. A "narrow, succinctly articulable message is not a condition of constitutional protection." Ibid. It "is enough" for a compiler to exclude the handful of messages it most "disfavor[s]." Id., at 574.

Third, the government cannot get its way just by asserting an interest in improving, or better balancing, the marketplace of ideas. Of course, it is critically important to have a well-functioning sphere of expression, in which citizens have access to information from many sources. That's the whole project of the First Amendment. And the government can take varied measures, like enforcing competition laws, to protect that access. But in case after case, the Court has barred the government from forcing a private speaker to present views it wished to spurn in order to rejigger the expressive realm.

Central elements of the Texas and Florida laws are unconstitutional under this approach. Social media firms are undeniably "compiling and curating others' speech" and under the state laws, they are "directed to accommodate messages [they] would prefer to exclude." The firms may exclude only a small percentage of the vast rage of speech users might want to post. But the Court's second principle rightly says that doesn't matter.

Finally, if "the government cannot get its way just by asserting an interest in improving, or better balancing, the marketplace of ideas," that destroys the central rationale for the two state laws. As the Court notes later in its opinion, "improving" or "better balancing" the "marketplace" of ideas is precisely the objective of Texas's law, which was largely motivated by concerns that the social media platforms were biased against various types of right-wing speech.

Later in the opinion, Justice Kagan notes the implications for the Texas law:

The platforms may attach "warning[s], disclaimers, or general commentary"for example, informing users that certain content has "not been verified by official sources." Id., at 75a. Likewise, they may use "information panels" to give users "context on content relating to topics and news prone to misinformation, as well as context about who submitted the content."

But sometimes, the platforms decide, providing more information is not enough; instead, removing a post is the right course. The platforms' content-moderation policies also say when that is so. Facebook's Standards, for example, proscribe postswith exceptions for "news-worth[iness]" and other "public interest value"in categories and subcategories including: Violence and Criminal Behavior (e.g., violence and incitement, coordinating harm and publicizing crime, fraud and deception); Safety (e.g., suicide and self-injury, sexual exploitation, bullying and harassment); Objectionable Content (e.g., hate speech, violent and graphic content); Integrity and Authenticity (e.g., false news, manipulated media). Id., at 412a415a, 441a442a. The platforms thus unabashedly control the content that will appear to users, exercising authority to remove, label or demote messages they disfavor.

Except that Texas's law limits their power to do so. As noted earlier, the law's central provision prohibits the large social-media platforms (and maybe other entities6) from "censor[ing]" a "user's expression" based on its "viewpoint."143A.002(a)(2); see supra, at 7. The law defines "expression" broadly, thus including pretty much anything that might be posted. See 143A.001(2). And it defines "censor" to mean "block, ban, remove, deplatform, demonetize, deboost, restrict, deny equal access or visibility to, or otherwise discriminate against expression." 143A.001(1).7 That is a long list of verbs, but it comes down to this: The platforms cannot do any of the things they typically do (on their main feeds) to posts they disapprovecannot demote, label, or remove them whenever the action is based on the post's viewpoint.

And we have time and again held that type of regulation to interfere with protected speech. Like the editors, cable operators, and parade organizers this Court has previously considered, the major social-media platforms are in the business, when curating their feeds, of combining "multi-farious voices" to create a distinctive expressive offering. Hurley, 515 U. S., at 569. The individual messages may originate with third parties, but the larger offering is the platform's. It is the product of a wealth of choices about whetherand, if so, howto convey posts having a certain content or viewpoint. Those choices rest on a set of beliefs about which messages are appropriate and which are not (or which are more appropriate and which less so). And in the aggregate they give the feed a particular expressive quality.

I think the Court's principles are broad enough to justify facial invalidation of the Texas and Florida laws, because ruling that the restrictions on social-media content moderation are unconstitutional is enough to show that the laws "prohibit a substantial amount of protected speech relative to [their] plainly legitimate sweep." But even if the facial challenges fail, the social media firms could easily file as-applied challenges focusing more narrowly on content moderation. And those would almost certainly succeed.

In his opinion concurring in judgment, Justice Samuel Alito (joined by Gorsuch and Thomas) claims the Court's discussion of First Amendment standards is merely nonbinding dicta. But it pretty obviously sets out principles the lower courts must follow on remand.

Alito also argues that not enough is known about the firms' content moderation policies, and how their content moderation policies work, in part because the firms have not fully revealed how their algorithms functio. But, as the majority shows, we do know enough to see that the major social media firms do restrict posts based on content, and that they favor some messages, while disfavoring others. That's exactly why the states decided to enact the challenged laws in the first place!

The dissent's argument that there are different social media platforms with different contents also doesn't do much to undercut the majority. All of the major platforms have extensive expressive content, and all impose editorial restrictions based at least in part on the subject matter and viewpoint. Perhaps this is less true of some platforms (such as Etsy) which mainly just let users sell products, rather than convey messages. But the Texas and Florida laws cover enough political and social commentary that they clearly "prohibit a substantial amount of protected speech relative to [their] plainly legitimate sweep."

Justice Alito also alludes, briefly, to the major social media platforms' extensive reach and influence. Interestingly, this issuemuch focused on by commentators on these casesplays almost no role in the majority's analysis, and only a minor one in the dissent. The same goes for the argument that social media firms' content moderation policies can be regulated because the firms are similar to "common carriers." The majority doesn't explicitly mention this theory, though much of its analysis implicitly rebuts it, by pointing out the many ways in which social media firms do not simply serve all comers. Justice Alito only briefly mentions the common carrier theory in a footnote. I criticized the common carrier and influence arguments in detail here.

In sum, while the Court did not reach a decision on the merits, the standards it lays out are an important win for the social media firmsand for freedom of speech.

Read more from the original source:
Supreme Court Remands Texas and Florida Social Media Cases - But Strongly Suggests the States' Laws Violate the ... - Reason

On Monday, the Supreme Court issued its decision in Moody v. NetChoice and NetChoice v. Paxton, two consequential cases about the future of speech on the internet. The court explicitly extended First Amendment protections to how social media platforms organize, curate, and moderate their feeds, drawing a comparison between internet content moderation and traditional publishers and editors.

The decision elaborates that the compilation and curation of others speech into an expressive product of its own is entitled to First Amendment protection and that the government cannot get its way just by asserting an interest in better balancing the marketplace of ideas.

The NetChoice cases concern a pair of similar laws in Florida and Texas that aimed to limit how large social media companies could moderate content on their sites. The legislation took shape after conservative politicians in both states criticized major tech companies for allegedly exerting bias against conservative viewpoints. Tech industry groups NetChoiceand the Computer & Communications Industry Association sued to block both laws. Appeals courts in each state came to different conclusions about whether the statutes could be upheld, setting up the Supreme Court to make the final call.

The Supreme Court vacated both of the appeals court decisions, ruling that neither court adequately analyzed the facial First Amendment challenges to the laws that is, whether the social media content moderation laws in Florida and Texas would always be unconstitutional in all applications. The court sent the cases back down to the lower courts to reconsider.

Under the new Supreme Court decision, content moderation is generally protected by the First Amendment. When the platforms use their Standards and Guidelines to decide which third-party content those feeds will display, or how the display will be ordered and organized, they are making expressive choices, Justice Elena Kagan wrote in the majority opinion. And because that is true, they receive First Amendment protection.

None of the justices dissented, but there were several concurring opinions. Justice Kagan wrote the majority opinion, joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Brett Kavanaugh, and Amy Coney Barrett. Justice Ketanji Brown Jackson joined part of the majority opinion but wrote a concurrence. Justices Barrett, Clarence Thomas, and Samuel Alito also wrote concurring opinions.

Kagan added that the Texas law is unlikely to withstand First Amendment scrutiny

The majority seemed particularly critical of the Fifth Circuits evaluation in favor of Texas social media law, HB20, which seeks to protect online speech from discrimination on the basis of viewpoint. Contrary to what the Fifth Circuit thought, the current record indicates that the Texas law does regulate speech when applied in the way the parties focused on below when applied, that is, to prevent Facebook (or YouTube) from using its content-moderation standards to remove, alter, organize, prioritize, or disclaim posts in its News Feed (or homepage), Kagan wrote for the majority. The law then prevents exactly the kind of editorial judgments this Court has previously held to receive First Amendment protection. Kagan added that the Texas law is unlikely to withstand First Amendment scrutiny in that specific application.

Even though the justices declined to rule on the specific merits of the cases, they said it was still necessary to say more about how the First Amendment relates to the laws content-moderation provisions to make sure the lower courts are put on the right path of analysis. The majority was especially eager to correct the Fifth Circuits First Amendment analysis that led it to uphold Texas law, though they provided the caveat that their explanation does not address other applications of the law that werent initially considered. The Fifth Circuit was wrong in concluding that Texass restrictions on the platforms selection, ordering, and labeling of third-party posts do not interfere with expression, Kagan wrote. And the court was wrong to treat as valid Texass interest in changing the content of the platforms feeds.

The court was also critical of the Texas legislatures reasoning for passing the law. The record reflects that Texas officials passed it because they thought those feeds skewed against politically conservative voices, the majority opinion says. But this Court has many times held, in many contexts, that it is no job for government to decide what counts as the right balance of private expression to un-bias what it thinks biased, rather than to leave such judgments to speakers and their audiences. That principle works for social-media platforms as it does for others.

However imperfect the private marketplace of ideas, here was a worse proposal

The majority offered three main takeaways from a series of relevant Supreme Court precedents that came up throughout the cases. First, that the First Amendment protects entities engaged in expressive activity, including compiling and curating others speech from including messages theyd rather not. Second, that protection doesnt change just because a compiler includes most items and excludes just a few. And third, the governments argument that its actions would improve the marketplace of ideas is not an adequate justification. However imperfect the private marketplace of ideas, here was a worse proposal the government itself deciding when speech was imbalanced, and then coercing speakers to provide more of some views or less of others, the majority opinion says.

Kagan wrote that the appeals court decisions were being vacated for reasons separate from the First Amendment merits. Instead of looking broadly at how the laws applied to multiple companies and multiple products, the lower courts had according to SCOTUS focused too narrowly on the curated feeds offered by the largest and most paradigmatic social-media platforms. Instead of making a proper analysis into a facial challenge, the appeals courts treated the cases as though each was an as-applied challenge brought by Facebook protesting its loss of control over the content of its News Feed.

SCOTUS said the lower courts did not do enough work for it to review the cases on the merits. Maybe the parties treated the content-moderation choices reflected in Facebooks News Feed and YouTubes homepage as the laws heartland applications because they are the principal things regulated, and should have just that weight in the facial analysis, Kagan wrote. Or maybe not: Maybe the parties focus had all to do with litigation strategy, and there is a sphere of other applications and constitutional ones that would prevent the laws facial invalidation.

In summarizing earlier Supreme Court opinions about whether cable operators could be compelled to give some of their channels to local broadcasters, the court said that a private partys collection of third-party content into a single speech product ... is itself expressive, and intrusion into that activity must be specially justified under the First Amendment. That could easily apply to social media companies that compile third-party content from many users across the internet.

The justices heard oral arguments in the two cases in February. At the time, several justices prodded counsel about how the laws would impact tech companies that did not seem top of mind when they were authored, including Uber, Etsy, and Venmo.

Alito wrote a concurring opinion, joined by Justices Neil Gorsuch and Thomas, in which he claimed that the judgment, which he also joined in, was narrow and confined to a finding that NetChoice failed to make the case that the laws were facially unconstitutional. He also said that the rest of the majority opinion (which five justices joined, plus a sixth having joined in part) was nonbinding dicta. Dicta is a part of a legal opinion that can be cited as being persuasive but is not considered binding precedent.

Alitos concurrence also objects to the blanket characterization of content moderation as an expressive activity, saying that algorithms remove a small fraction of nonconforming posts post hoc and prioritize content based on factors that the platforms have not revealed and may not even know and notes that many of the biggest platforms are beginning to use AI algorithms to help them moderate content. Alito questioned whether decisions made by AI could be expressive enough to warrant First Amendment protection.

Barrett, who joined the majoritys opinion, also wrote a separate concurrence that mentioned the application of the First Amendment to artificial intelligence.

Barrett wrote that the use of AI might have different implications for whether a court should assess the output as the result of a humans expressive choices. She said that algorithms programmed to remove or prioritize certain content can be taken as simply implementing a humans expressive decisions even if that algorithm is programmed to identify and remove posts promoting a certain political candidate or position on an issue. But, she wrote, the analysis might differ if a platform owner asks an AI trained on a large language model to determine what is hateful content to be removed.

Technology may attenuate the connection between content-moderation actions (e.g., removing posts) and human beings constitutionally protected right to decide for [themselves] the ideas and beliefs deserving of expression, consideration, and adherence, Barrett wrote, citing Turner Broadcasting System, Inc. v. FCC.

Barretts concurrence also noted that foreign ownership of a platform could alter the analysis something that is at the center of TikToks challenge of a new law that would force it to be divested from Chinese parent company ByteDance or face a ban. That case is awaiting oral arguments before the DC Circuit Court, which will need to weigh supposed First Amendment harms against the alleged national security risks lawmakers feared when they passed the bill. Barrett wrote that while corporations have First Amendment rights, foreign persons and corporations located abroad do not.

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Supreme Court protects the future of content moderation - The Verge

The Supreme Court sided with the National Rifle Association on Thursday, finding that the group could pursue a First Amendment claim against a New York state official who had encouraged companies to stop doing business with it after the 2018 school shooting in Parkland, Fla.

Justice Sonia Sotomayor, writing for a unanimous court, found that the N.R.A. had plausibly claimed a violation of the First Amendment, reversing an appeals court decision and sending the case back for further proceedings. Although a government official is allowed to share her views freely and criticize particular beliefs, she wrote, that official may not use the power of the state to punish or suppress disfavored expression.

The case is one of two this term in which the justices have wrestled with when government advocacy crosses a constitutional line into coercion.

The dispute centers on whether Maria T. Vullo, who was a superintendent of the New York Department of Financial Services, had infringed on the free speech rights of the N.R.A. After a young man killed 17 people in a shooting at a school in Parkland, Fla., Ms. Vullo told insurance companies and banks that they should consider whether to provide services to the group.

Although Ms. Vullo was free to criticize the N.R.A. and pursue the conceded violations of New York insurance law, Justice Sotomayor wrote, she was not allowed to wield her power to threaten enforcement actions against companies regulated by her department in a way that would punish or suppress the N.R.A.s gun-promotion advocacy. The courts decision was in keeping with previous rulings that government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors, the justice added.

In a concurrence, Justice Ketanji Brown Jackson stressed the important distinction between government coercion, on the one hand, and a violation of the First Amendment, on the other. Coercion alone is not enough to violate the First Amendment, she wrote, adding that to determine whether the government has crossed a line, courts must assess how that coercion actually violates a speakers First Amendment rights.

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Supreme Court Clears Way for N.R.A. to Pursue First Amendment Challenge - The New York Times

The Supreme Court decided Thursday that government officials cannot indirectly suppress free speech through coercion, reinforcing their previous decision in Bantam Books, Inc. v. Sullivan.

Justice Sotomayor, writing for a unanimous court, said 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. What she cannot do, however, is use the power of the State to punish or suppress disfavored expression.

The NRA argued that this is what Maria Vullo, former superintendent of the New York Department of Financial Services (DFS), did when she met with executives and sent guidance letters to insurance companies and financial institutions. During investigations into the NRAs affinity insurance providers following the mass shooting in Parkland, Florida, Vullo conducted meetings and sent guidance letters to overseas institutions, encouraging them to sever their ties to the NRA. These institutions had been underwriting insurance programs offered by the NRA to its members, including the Carry Guard program.

Justice Sotomayor expanded on the decision in Bantam Books, Inc., which stated the First Amendment does not permit government officials to use the threat of invoking legal sanctions and other means of coercionto achieve the suppression [of disfavored speech]. In this case, Vullo, as the superintendent of DFS, had direct regulatory and enforcement authority over all insurance companies and financial service institutions doing business in New York[she] could initiate investigations and refer cases for prosecution. Using her position, Vullo told Lloyds of London, who was facing violations of New York law, that she would focus her enforcement actions solely on the syndicates with ties to the NRA, and ignore other syndicates writing similar policies. The unanimous Court concluded, whether analyzed as a threat or as an inducement, the conclusion is the same: Vullo allegedly coerced Lloyds by saying she would ignore unrelated infractions and focus her enforcement efforts on NRA-related business.

The NRA posted a statement from President Bob Barr on X (formerly Twitter) following the ruling: Regulators are now on notice: this is a win for not only the NRA but every organization who might otherwise suffer from an abuse of government power. William Brewer, an attorney for the NRA, said the ruling was a landmark victory for the NRA and all who care about our First Amendment freedom.

Following the Courts ruling, the case is remanded to re-evaluate the First Amendment claims.

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SCOTUS unanimously backs NRA on First Amendment ruling - JURIST

From Justice Sotomayor's opinion today in NRA v. Vullo (the NRA was represented by the ACLU, with David Cole arguing before the Court; by William Brewer, Sarah Rogers & Noah Peters of Brewer Attorneys & Counselors; and by me):

[B.] In Bantam Books v. Sullivan (1963), this Court explored the distinction between permissible attempts to persuade and impermissible attempts to coerce. There, a state commission used its power to investigate and recommend criminal prosecution to censor publications that, in its view, were "'objectionable'" because they threatened "youthful morals."

The commission sent official notices to a distributor for blacklisted publications that highlighted the commission's "duty to recommend to the Attorney General" violations of the State's obscenity laws. The notices also informed the distributor that the lists of blacklisted publications "were circulated to local police departments," and that the distributor's cooperation in removing the publications from the shelves would "'eliminate the necessity'" of any referral for prosecution. A local police officer also conducted followup visits to ensure compliance. In response, the distributor took "steps to stop further circulation of copies of the listed publications" out of fear of facing "'a court action.'"

The publishers of the blacklisted publications sued the commission, alleging that this scheme of informal censorship violated their First Amendment rights. The commission responded that "it d[id] not regulate or suppress obscenity but simply exhort[ed] booksellers and advise[d] them of their legal rights." This Court sided with the publishers, holding that the commission violated their free-speech rights by coercing the distributor to stop selling and displaying the listed publications.

The Court explained that the First Amendment prohibits government officials from relying on the "threat of invoking legal sanctions and other means of coercion to achieve the suppression" of disfavored speech. Although the commission lacked the "power to apply formal legal sanctions," the distributor "reasonably understood" the commission to threaten adverse action, and thus the distributor's "compliance with the [c]ommission's directives was not voluntary." To reach this conclusion, the Court considered things like: the commission's coordination with law enforcement and its authority to refer matters for prosecution; the notices themselves, which were "phrased virtually as orders" containing "thinly veiled threats to institute criminal proceedings" if the distributor did not come around; and the distributor's reaction to the notices and followup visits.

Ultimately, Bantam Books stands for the principle that a government official cannot do indirectly what she is barred from doing directly: A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf.

[C.] 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. Accepting the well-pleaded factual allegations in the complaint as true, the NRA plausibly alleged that Vullo violated the First Amendment by coercing DFS-regulated entities into disassociating with the NRA in order to punish or suppress the NRA's gun-promotion advocacy.

Consider first Vullo's authority, which serves as a backdrop to the NRA's allegations of coercion. The power that a government official wields, while certainly not dispositive, is relevant to the objective inquiry of whether a reasonable person would perceive the official's communication as coercive. As DFS superintendent, Vullo had direct regulatory and enforcement authority over all insurance companies and financial service institutions doing business in New York. Just like the commission in Bantam Books, Vullo could initiate investigations and refer cases for prosecution. Indeed, she could do much more than that. Vullo also had the power to notice civil charges and, as this case shows, enter into consent decrees that impose significant monetary penalties.

Against this backdrop, consider Vullo's communications with the DFS-regulated entities, particularly with Lloyd's. According to the NRA, Vullo brought a variety of insurance-law violations to the Lloyd's executives' attention during a private meeting in February 2018. The violations included technical infractions that allegedly plagued the affinity insurance market in New York and that were unrelated to any NRA business.

Vullo allegedly said she would be "less interested in pursuing the[se] infractions so long as Lloyd's ceased providing insurance to gun groups, especially the NRA." Vullo therefore wanted Lloyd's to disassociate from all gun groups, although there was no indication that such groups had unlawful insurance policies similar to the NRA's.

Vullo also told the Lloyd's executives she would "focus" her enforcement actions "solely" on the syndicates with ties to the NRA, "and ignore other syndicates writing similar policies." The message was therefore loud and clear: Lloyd's "could avoid liability for [unrelated] infractions" if it "aided DFS's campaign against gun groups" by terminating its business relationships with them.

As alleged, Vullo's communications with Lloyd's can be reasonably understood as a threat or as an inducement. Either of those can be coercive. As Vullo concedes, the "threat need not be explicit," and as the Solicitor General explains, "[t]he Constitution does not distinguish between 'comply or I'll prosecute' and 'comply and I'll look the other way.'" Vullo allegedly coerced Lloyd's by saying she would ignore unrelated infractions and focus her enforcement efforts on NRA-related business alone, if Lloyd's ceased underwriting NRA policies and disassociated from gun-promotion groups.

The reaction from Lloyd's further confirms the communications' coercive nature. At the meeting itself, Lloyd's "agreed that it would instruct its syndicates to cease underwriting firearm-related policies and would scale back its NRA-related business." Minutes from a subsequent board of directors' meeting reveal that Lloyd's thought "the DFS investigation had transformed the gun issue into 'a regulatory, legal[,] and compliance matter.'" That reaction is consistent with Lloyd's public announcement that it had directed its syndicates to "terminate all insurance related to the NRA and not to provide any insurance to the NRA in the future."

Other allegations, viewed in context, reinforce the NRA's First Amendment claim. Consider the April 2018 Guidance Letters and accompanying press release, which Vullo issued on official letterhead. Just like in her meeting with the Lloyd's executives, here too Vullo singled out the NRA and other gun-promotion organizations as the targets of her call to action.

This time, the Guidance Letters reminded DFS-regulated entities of their obligation to consider their "reputational risks," and then tied that obligation to an encouragement for "prompt actio[n] to manag[e] these risks." Evocative of Vullo's private conversation with the Lloyd's executives a few weeks earlier, the press release revealed how to manage the risks by encouraging DFS-regulated entities to "'discontinu[e] their arrangements with the NRA,'" just like Chubb did when it stopped underwriting Carry Guard. A follow-on tweet from Cuomo reaffirmed the message: Businesses in New York should "'consider their reputations'" and "'revisit any ties they have to the NRA,'" which he called "'an extremist organization.'"

[T]his Court cannot simply credit Vullo's assertion that "pursuing conceded violations of the law" is an "'obvious alternative explanation'" for her actions that defeats the plausibility of any coercive threat raising First Amendment concerns. Of course, discovery in this case might show that the allegations of coercion are false, or that certain actions should be understood differently in light of newly disclosed evidence. At this stage, though, the Court must assume the well-pleaded factual allegations in the complaint are true.

{Vullo also argues that she is entitled to absolute prosecutorial immunity for her enforcement actions. Putting aside whether a financial regulator like Vullo is entitled to such immunity in the administrative context, because Vullo did not raise this defense below with respect to the First Amendment claim (or even with respect to allegations unrelated to the consent decrees), the Court declines to consider that argument here in the first instance.}

[D.] Moreover, the conceded illegality of the NRA-endorsed insurance programs does not insulate Vullo from First Amendment scrutiny under the Bantam Books framework. Indeed, the commission in that case targeted the distribution and display of material that, in its view, violated the State's obscenity laws. Nothing in that case turned on the distributor's compliance with state law. On the contrary, 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).

Here, too, although Vullo can pursue violations of state insurance law, she cannot do so in order to punish or suppress the NRA's protected expression. So, the contention that the NRA and the insurers violated New York law does not excuse Vullo from allegedly employing coercive threats to stifle gun-promotion advocacy.

[E.] That Vullo "regulate[d]" business activities stemming from the NRA's "relationships with insurers and banks" does not change the allegations that her actions were aimed at punishing or suppressing speech. One can reasonably infer from the complaint that Vullo coerced DFS-regulated entities to cut their ties with the NRA in order to stifle the NRA's gun-promotion advocacy and advance her views on gun control. Vullo knew, after all, that the NRA relied on insurance and financing "to disseminate its message." {Vullo's boss, Governor Cuomo, also urged businesses to disassociate with the NRA to put the organization "into financial jeopardy" and "shut them down."}

The NRA's allegations, if true, highlight the constitutional concerns with the kind of intermediary strategy that Vullo purportedly adopted to target the NRA's advocacy. Such a strategy allows government officials to "expand their regulatory jurisdiction to suppress the speech of organizations that they have no direct control over." It also allows government officials to be more effective in their speech-suppression efforts "[b]ecause intermediaries will often be less invested in the speaker's message and thus less likely to risk the regulator's ire."

The allegations here bear this out. Although "the NRA was not even the directly regulated party," Vullo allegedly used the power of her office to target gun promotion by going after the NRA's business partners. Insurers in turn followed Vullo's lead, fearing regulatory hostility.

[F.] [N]othing here prevents government officials from forcefully condemning views with which they disagree. For those permissible actions, the Constitution "relies first and foremost on the ballot box, not on rules against viewpoint discrimination, to check the government when it speaks." Yet where, as here, a government official makes coercive threats in a private meeting behind closed doors, the "ballot box" is an especially poor check on that official's authority. Ultimately, the critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries.

Justice Gorsuch filed a one-paragraph concurrence concluding that courts should focus on deciding 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," rather than trying to articulate any multifactor tests (as some lower courts have done in this area) elaborating on this core question.

Justice Jackson also concurred, highlighting the fact that some government coercion can directly stifle speech (for instance, when the government is coercing bookstores not to carry a book) while other coercion retaliates against protected speech (for instance, when the government is coercing financial intermediaries not to do business with speakers). Both may violate the First Amendment, but, she argued, they should be analyzed somewhat differently; read her opinion (PDF pp. 26-31) for more details.

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Unanimous First Amendment Victory for the NRA (Represented by the ACLU) - Reason

A New York officials attempts to push financial institutions to drop their relationships with the National Rifle Association over the groups pro-gun views ran afoul of the Constitution.

That was the unanimous ruling handed down by the Supreme Court of the United States (SCOTUS) on Thursday. The High Court overturned a lower court ruling in favor of former New York Department of Financial Services (DFS) superintendent Maria Vullo and sided with the NRA.

[T]he Court holds that the NRA plausibly alleged that Vullo violated the First Amendment by coercing DFS-regulated entities to terminate their business relationships with the NRA in order to punish or suppress the NRAs advocacy, Justice Sonia Sotomayor, a Barack Obama appointee, wrote for the Court in NRA v. Vullo.

The ruling is a significant symbolic win for the beleaguered gun-rights group. While the decision doesnt represent a final ruling in the case, it does establish what the NRA alleges Vullo did would constitute a Constitutional violation. That finding provides the group with ammunition in court as the case moves forward and in the public arena, where it has long asserted New York officials have attacked it on multiple fronts because of its political views.

Still, the case has no direct impact on the NRAs civil corruption trial, where a New York jury found the groups previous leadership liable for diverting millions in charitable assets toward personal expenses.

NRA v. Vullostems from a series of 2018 letters and meetings between Vullo and insurers who backed NRA products in the state, including a concealed carry insurance program. She warned the companies, which she had regulatory power over, about the reputational risk of continuing to do business with the NRA or any other pro-gun group.

Subject to compliance with applicable laws, the Department encourages its chartered and licensed financial institutions to continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations, if any, as well as continued assessment of compliance with their own codes of social responsibility, Vullo wrote in the letter. The Department encourages regulated institutions to review any relationships they have with the NRA or similar gun promotion organizations, and to take prompt actions to managing these risks and promote public health and safety.

Vullo told the insurers that other companies dropping the gun-rights group was an example of good governance.

There is a fair amount of precedent in the business world where firms have implemented measures in areas such as the environment, healthcare, and civil rights in fulfilling their corporate social responsibility, she said. The recent actions of a number of financial institutions that severed their ties with the NRA and have taken other actions after the AR-15 style rifle killed 17 people in the school in Parkland, Florida, is an example of such a precedent.

The NRA said her actions went beyond the public letters. It alleged she also had conversations with the NRAs insurers, Lloyds of London and Lockton, in which she threatened their businesses if they didnt cut ties with the gun-rights group. The groups did just that shortly after the alleged meetings.

In September 2022, a three-judge panel at the Second Circuit Court of Appeals reversed a lower courts ruling in favor of the NRA. It ruled Vullo acted reasonably and in good faith.

[W]e conclude that the NRA has failed to plausibly allege that Vullo crossed the line between attempts to convince and attempts to coerce,' the panel wrote. Moreover, even assuming that Vullos actions and statements were somehow coercive, we conclude further that her conduct heretaking actions and making statements in her various capacities as regulator, enforcement official, policymaker, and representative of New York Statedid not violate clearly established law.

The Supreme Court slammed that decision in its ruling.

The Second Circuit could only reach this conclusion by taking the allegations in isolation and failing to draw reasonable inferences in the NRAs favor in violation of this Courts precedents, Sotomayor wrote.

Instead, SCOTUS said Vullos alleged actions constituted a coercive threat or inducement directed at the insurers with the goal of harming the NRAs ability to spread its political message.

One can reasonably infer from the complaint that Vullo coerced DFS-regulated entities to cut their ties with the NRA in order to stifle the NRAs gun-promotion advocacy and advance her views on gun control, Sotomayor wrote. Vullo knew, after all, that the NRA relied on insurance and financing to disseminate its message.'

The Court said the allegation that Vullo offered the insurers a behind-closed-doors deal to ignore similar violations by other non-gun groups if they broke ties with the NRA and other pro-gun groups made her intentions clear.

Vullo therefore wanted Lloyds to disassociate from all gun groups, although there was no indication that such groups had unlawful insurance policies similar to the NRAs, Sotomayor wrote. Vullo also told the Lloyds executives she would focus her enforcement actions solely on the syndicates with ties to the NRA, and ignore other syndicates writing similar policies. The message was therefore loud and clear: Lloyds could avoid liability for [unrelated] infractions if it aided DFSs campaign against gun groups by terminating its business relationships with them.

SCOTUS said Vullos alleged actions constituted a use of government force to curtail the free speech rights of her political opponents.

At the heart of the First Amendments Free Speech Clause is the recognition that viewpoint discrimination is uniquely harmful to a free and democratic society, Sotomayor wrote.

Justice Neil Gorsuch, a Donald Trump appointee, wrote a concurrence agreeing with the Courts holding but adding his opinion the four-pronged test used to determine First Amendment violations in cases like NRA v. Vullo should be used more as a guideline rather than a rigid dogma. Justice Ketanji Brown Jackson, a Joe Biden appointee, offered up her own concurrence that argued the case may have worked better as a retaliation claim than a government coercion onesomething she encouraged the lower court to litigate on remand.

The Court sent NRA v. Vullo back down to the Second Circuit Court of Appeals to decide on the validity of the NRAs factual claims and Vullos argument that she is protected by qualified immunity because her actions werent well established as unconstitutional beforehand. In a footnote, the Court emphasized it was required to consider the allegations in the NRAs brief as accurate during this phase of the case and other facts could come to light that might change those facts as the proceedings move forward.

Of course, discovery in this case might show that the allegations of coercion are false, or that certain actions should be understood differently in light of newly disclosed evidence, the Court wrote. At this stage, though, the Court must assume the well-pleaded factual allegations in the complaint are true.

Ultimately, the unanimous Court concluded that Vullos alleged behavior crossed from acceptable advocacy into unconstitutional coercion.

Vullo was free to criticize the NRA and pursue the conceded violations of New York insurance law, Sotomayor wrote. She could not wield her power, however, to threaten enforcement actions against DFS-regulated entities in order to punish or suppress the NRAs gun-promotion advocacy. Because the complaint plausibly alleges that Vullo did just that, the Court holds that the NRA stated a First Amendment violation.

UPDATE 5-30-2024 12:17 PM Eastern: This piece has been updated with additional background and quotes from the Supreme Courts ruling.

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SCOTUS Unanimously Sides With NRA in First Amendment Case - The Reload

The Supreme Court unanimously ruled Thursday for the National Rifle Association in a dispute over whether a New York state official had violated the groups First Amendment rights when she told companies to consider their reputations in doing business with the gun rights group.

The NRA brought the case against Maria Vullo, the former superintendent of the New York Department of Financial Services, saying she pushed financial firms to deny the group services because of its gun rights advocacy.

In a unanimous ruling, Justice Sonia Sotomayor said the group plausibly argued that its rights were violated, reversing the 2nd U.S. Circuit Court of Appeals decision to dismiss the lawsuit.

Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors, Justice Sotomayor wrote.

The decision sends the dispute back to the 2nd U.S. Circuit Court of Appeals for reconsideration.

In the aftermath of the 2018 mass shooting at a high school in Parkland, Florida, Ms. Vullo said that financial services companies should consider whether they should serve pro-gun organizations like the NRA.

New York regulators opened investigations into certain insurance companies that were in business with NRA members. The NRA sued, saying Ms. Vullo was exercising government authority against its free speech rights.

A unanimous three-judge panel of the 2nd U.S. Circuit Court of Appeals ruled in favor of Ms. Vullo, ruling she enjoyed qualified immunity and that her speech was lawful and protected as an exercise in law enforcement.

The NRA took the case to the Supreme Court.

Justice Sotomayor noted that Ms. Vullo struck a deal with an insurance company that had done business with the NRA that the firm would would instruct its syndicates to cease underwriting firearm-related policies and would scale back its NRA-related business.

In exchange, [the Department of Financial Services] would focus its forthcoming affinity-insurance enforcement action solely on those syndicates which served the NRA, and ignore other syndicates writing similar policies, the ruling noted.

It also highlighted the fact that Ms. Vullo praised businesses that severed ties with the NRA as fulfilling their corporate social responsibility.

Vullo was free to criticize the NRA and pursue the conceded violations of New York insurance law. She could not wield her power, however, to threaten enforcement actions against DFS-regulated entities in order to punish or suppress the NRAs gun-promotion advocacy, Justice Sotomayor wrote. Because the complaint plausibly alleges that Vullo did just that, the Court holds that the NRA stated a First Amendment violation.

Neal Katyal, counsel for Ms. Vullo, said they were disappointed in the ruling.

As the Courts decision makes clear, because of the posture of this case, this ruling required the Court to treat the NRAs untested allegations as true even though these allegations have no evidentiary merit, he said. This case will now go back to the Second Circuit, which threw out the lawsuit on qualified immunity grounds before. The Supreme Court did not address the qualified immunity decision of the Second Circuit, and we are confident Ms. Vullos claim of qualified immunity will be reaffirmed.

The American Civil Liberties Union, meanwhile, praised the decision. The ACLU represented the NRA in the dispute, despite the two groups having many disagreements.

Todays decision confirms that government officials have no business using their regulatory authority to blacklist disfavored political groups, said David Cole, an attorney for the ACLU who argued the case. The New York state officials involved here, former Gov. Andrew Cuomo and his chief financial regulator, Maria Vullo, were clear that they sought to punish the NRA because they disagreed with its gun rights advocacy. The Supreme Court has now made crystal clear that this action is unconstitutional.

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Supreme Court unanimously sides with NRA in First Amendment dispute with New York official - Washington Times