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The First Amendment does not let officials punish people merely because they maintain or espouse certain views. Yet government censors are not so easily dissuaded. Officials often try to ban speech indirectly, threatening to impose costly investigations on speakers, punish their business associates, or remove legal protections. Is that constitutional? No, it is not.

This year, the Supreme Court will have a chance to reaffirm that the First Amendment bars informal or indirect censorship just as it does laws that restrict speech. The National Rifle Association sued New York state officials who, it alleges, threatened financial institutions that continued to do business with it. The officials did so, the NRA argues, because they disapproved of the NRA’s political message. After the United States Court of Appeals for the Second Circuit ruled for the government officials, the United States Supreme Court agreed to hear the case. The NRA is represented before the Court by the American Civil Liberties Union.

Today FIRE— joined by the National Coalition Against Censorship, the Rutherford Institute, and the First Amendment Lawyers Association — filed an amicus curiae (“f������Ի�-�Ǵ�-�ٳ��-���dzܰ���”) brief in support of the NRA. ��֭����’s brief argues that the First Amendment’s formal legal protections count for little if public officials can evade them by simply couching their censorship demands as veiled threats and vague demands for cooperation. The facts alleged by the NRA demonstrate that New York officials were trying to indirectly censor speech that they could not punish directly. 

Volokh v. James: Big Brother in the Big Apple: New York Law Turns Bloggers into Speech Police

Case Detail

New York enacted a law with the goal of regulating disfavored — but constitutionally protected — online speech, threatening vast swaths of protected speech on the internet.

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In 2018, Maria Vullo was the superintendent of the New York State Department of Financial Services and an outspoken critic of the NRA’s political activity. After the Parkland, Florida, school shootings, Vullo sent a letter to the financial institutions that the department regulates, suggesting that continuing to do business with the NRA could violate state law. The letter applauded entities who recently cut ties with the NRA, warned financial institutions they may face investigations and “reputational risk” if they do business with the NRA, and “encouraged” those institutions to take “prompt actions to manage” that risk.

Vullo, of course, could not constitutionally shut down the NRA because of its political activity. So she proceeded to threaten financially ruinous investigations and fines against the NRA’s financial partners. Her play was backed by then-Gov. Andrew Cuomo, who claimed that groups like the NRA “have no place in the state of New York.” He boasted that Vullo’s pressure tactics were “forcing the NRA into financial jeopardy.”

These threats against partner organizations violate the First Amendment just as much as direct punishment for protected speech, as the Supreme Court long ago recognized. In 1963, the Court decided Bantam Books, Inc. v. Sullivan, recognizing that coercion, persuasion, and intimidation can restrict speech every bit as much as formal regulations can. It held that informal measures can operate as “a scheme of state censorship effectuated by extra-legal sanctions” where public officials act “not to advise but to suppress.” 

But 60 years have passed since Bantam Books, and the Court has not further developed the legal standard governing informal censorship. That’s the case even though officials continue to threaten disfavored speech.

FIRE’s brief urges the Court to reaffirm the principles set forth in Bantam Books.

In 2020, for example, then-President Donald Trump — angered by Twitter’s fact-checking —  that a federal agency weaken social media platforms’ legal protections, in particular their immunity from liability for user posts. Meanwhile, another Supreme Court case, to be argued this term, will consider federal officials’ backroom pressure tactics aimed at influencing social media companies’ content moderation policies. And New York Gov. Kathy Hochul recently wrote public and private colleges and universities in the state, warning that failure to discipline students for “calling for the genocide of any group” would violate state and federal law and threatening “aggressive enforcement action” against any institution that fails to prohibit and punish such speech.

These are just a few examples of officials using informal means to do indirectly what they cannot constitutionally do directly: censor disfavored speech.

FIRE’s brief urges the Court to reaffirm the principles set forth in Bantam Books and clarify the applicable legal standard, making clear that government officials cannot evade the First Amendment through informal or indirect pressure tactics.