Each year at the U.S. Supreme Court, an array of marquee cases tends to draw all of the attention. However, there are also sleepers among the pending cases that have significant importance. One such case involves a rare alliance between the American Civil Liberties Union and the National Rifle Association.
NRA v. Vullo deals with the growing effort by government agencies to target the advertisers of conservative and dissenting websites to kill the funding for opposing views. While the case deals with this effort on the state level, it could produce a ruling on indirect efforts by government, including the Biden administration, to censor viewpoints.
In the case before the court, New York’s Department of Financial Services is accused of using increased regulatory scrutiny and possible penalties to coerce financial institutions into ending their support for certain black-listed groups. The NRA documented how former DFS Superintendent Maria Vullo appears to have pressured financial institutions to drop any association with the organization.
Specifically, the NRA contends that Vullo’s office pressured insurance companies not to cover the NRA or risk retaliation from the state. As the ACLU noted in its amicus brief opposing the defendants’ motion to dismiss the case, the NRA might not be able to prove these allegations, but it should be given the opportunity to do so.
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It’s chilling that the U.S. Court of Appeals for the Second Circuit refused to allow the NRA to prove its case. It rejected any First Amendment claim, despite evidence that New York tried to silence opposing political views.
The Second Circuit declared that even if Vullo had “engaged in unconstitutionally threatening or coercive conduct,” she would be protected by qualified immunity. The decision is a virtual green light for a type of soft censorship that uses surrogates and regulatory pressure.
Biden administration tries to censor free speech
Under the Biden administration, there has been a consistent attack on free speech through the censorship and blacklisting of opposing groups. Even facts are now deemed dangerous “malinformation,” if used in a way that the administration deems misleading or harmful.
For example, according to an investigation by the Washington Examiner, the federal government helped to fund the Global Disinformation Index (GDI), which discourages advertisers from supporting sites accused of promoting disinformation.
All 10 of the sites that GDI claimed were the riskiest are popular with conservatives, libertarians and independents. GDI warned advertisers that they were accepting “reputational and brand risk” by “financially supporting disinformation online.”
The “risky” sites included Reason, a libertarian-oriented source of news and commentary about the government. Conversely, HuffPost, a far left media outlet, was included among the 10 sites at lowest risk of spreading disinformation. (GDI included USA TODAY in this group.)
A triumvirate of government, corporate and academic institutions are involved in efforts to control free speech by throttling the funding for its exercise. If you want to be heard in a large context, you either stay within the lines set by these groups or face pariah status.
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Efforts to control the funding of free speech are consistent with a larger campaign by this triumvirate. The Biden administration has relied heavily on what I have described as “censorship by surrogate” in using social media companies to silence opposing viewpoints. As I testified in Congress, the use of corporate agents still violates the First Amendment.
Indeed, a federal judge found that the Biden administration had operated a censorship system that was truly “Orwellian.”
NRA v. Vullo is critical free speech case
That is why NRA v. Vullo could prove to be one of the most important free speech cases of the decade. New York (and the Second Circuit) would allow the government to deny free speech by cutting off its financial oxygen.
As shown by the alliance of the ACLU and the NRA in this instance, this is a fight that most citizens should be able to embrace, regardless of our differences. For every Vullo on the Democratic side, there could be a dozen Vullos on the conservative side who use the same type of coercion against pro-abortion or environmental groups.
The Supreme Court could prevent this race to the bottom by imposing a bright-line rule against content-based discrimination by government agencies. The soft censorship in NRA v. Vullo will have hard consequences for free speech if New York prevails.
Jonathan Turley is the Shapiro professor of Public Interest Law at George Washington University. Follow him on X @JonathanTurley
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