The First Amendment and the Supreme Court

In Murthy v. Missouri, a case decided just yesterday at the Supreme Court, the Biden administration was accused of hiding behind social media companies while using them to silence information regarding the COVID-19 pandemic and vaccine hesitancy. The Supreme Court punted on that question, finding that the particular plaintiffs in that lawsuit were unable to bring suit because they could not show that they were themselves injured by the government’s actions. Yet as Justice Samuel Alito wrote in dissent, the substantive question at issue—whether government can coerce third parties into suppressing speech—is the most pressing First Amendment issue of our day. That makes one of the Supreme Court’s other cases from this term, National Rifle Association v. Vullo, one of the most important free speech cases of the decade.

In that case, a unanimous Supreme Court ruled that government cannot use third parties to censor, cancel, or deplatform groups with which it disagrees. The court held that the National Rifle Association (NRA) plausibly alleged that New York’s Department of Financial Services head, Maria Vullo, had unlawfully pressured banks and other financial entities into debanking and stifling the NRA’s speech. In a world in which we see the Biden administration continually pressuring social media companies to suppress speech, the Supreme Court’s conclusion that the government may not use its powers—even indirectly—to silence speech is a crucial step in preserving our First Amendment freedoms.

Needless to say, the First Amendment has long prevented state officials from wielding power to silence speech with which they disagree. The NRA case asked what happens when a state official silences political opponents indirectly by forcing others to stop doing business with them. In an opinion authored by Justice Sonia Sotomayor, every justice agreed that the government cannot evade the First Amendment by operating indirectly through third parties. That meant that threatening enforcement action against companies who refused to stop doing business with the NRA stated a First Amendment violation.

The Supreme Court began by reaffirming foundational free speech principles. The First Amendment prohibits the government from doing anything that “abridges the freedom of speech.” The court wrote: “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.” This means that governmental actions seeking to suppress speech because of its viewpoint are presumptively unconstitutional. As the Supreme Court has previously recognized, to permit just one side of an issue to express its views “is the antithesis of constitutional guarantees.”

The court also noted that the NRA was not the first speaker to find its views silenced by the government’s coercion of a third party. In the 1962 case Bantam Books, a state commission used its power to threaten investigation and prosecution of book distributors that failed to censor what the commission viewed as “objectionable” publications. The publishers sued arguing that the commission had violated their First Amendment rights by coercing book distributors. The Supreme Court agreed, holding that the First Amendment stops government officials from threatening third parties with legal sanctions “to achieve the suppression” of disfavored speech.

In NRA, the Supreme Court built on this prior decision. The court reiterated that “a government official cannot do indirectly what she is barred from doing directly.” Further, the court said it makes no difference whether the government uses threats or inducement—any coercion of a third party is prohibited.

The court went on to find that the facts alleged in NRA v. Vullo amounted to unlawful government coercion. To begin, Maria Vullo had direct regulatory and enforcement authority over the third-party banks that she convinced to drop the NRA. She had the power to prosecute them. And she had directly induced these entities into deplatforming the NRA. Vullo informed Lloyds’ bank executives during a private meeting, for example, that she’d be “less interested in pursuing” the bank’s insurance law violations if Lloyd’s stopped providing insurance to the NRA. In the face of this threat, Lloyd’s publicly directed all of its syndicates to “terminate all insurance related to the NRA.” The court also noted that Vullo had sent out Guidance Letters to the banks and insurers she regulated demanding that they take prompt action to manage the “reputational risks” arising from their dealings with the NRA.

Given Vullo’s outrageous demands that banks and insurers debank and deinsure the NRA or else face prosecution for unrelated legal violations, it is no surprise that a unanimous Supreme Court found unconstitutional government coercion. Vullo threatened to wield her power and institute enforcement actions against insurers and banks who refused to sever ties with the NRA. That’s unconstitutional. The NRA decision says that government may not coerce third parties into doing its dirty work. 

Government censorship through the actions of third parties is no less damaging to free speech than the government’s direct suppression of speech. In fact, as the facts of Murthy v. Missouri illustrate, it can be even more troubling. The government can reach through social media giants to censor copious amounts of even truthful content. In a world where companies—from banks, to internet platforms, to social media companies—maintain vast power over the lives of everyday citizens, the NRA case lays down an important marker: Government can’t use those companies to suppress speech it doesn’t like.