More than 60 years ago the Supreme Court ruled that the First Amendment bars the government from coercing private entities to punish speech that the government disfavors. Just as the government can’t directly punish or censor speech it disagrees with, it cannot do so indirectly by coercing private parties to do the same.
History underscores the importance of this free speech protection. Government officials have all too often enlisted private parties—from the White Citizens’ Councils of the Jim Crow South to the blacklists of Communists in the McCarthy era—to punish those with whom they disagree. New York’s efforts to punish the National Rifle Association, at issue before the Supreme Court in National Rifle Association v. Vullo, follow in the footsteps of those earlier censorship efforts.
The ACLU disagrees sharply with the NRA on many issues, yet we are representing the group in this case because of the First Amendment principles at stake.
The ACLU disagrees sharply with the NRA on many issues, yet we are representing the group in this case because of the First Amendment principles at stake. We argue that Maria Vullo, a New York state regulator, threatened to use her regulatory power over banks and insurance companies to coerce them into denying basic financial services to the NRA and, in Vullo’s own words, “other gun promotion” groups. Vullo’s threats were expressly based on her disagreement with the NRA’s advocacy. And they worked. Several insurance companies and banks refused to work with the NRA out of fear of reprisals from New York regulators. The ACLU urges the Supreme Court to hold that coercing third parties to break ties with the NRA because of its advocacy violates the First Amendment.
Even those who oppose government censorship may be sympathetic to New York’s efforts to shut down the NRA. The NRA is dedicated to promoting guns, which play an outsized role in violence and death in this country. The ACLU does not support the NRA’s mission. In fact, we directly oppose the NRA and support the government’s power to adopt sensible tools, like public carry permits and disarming persons subject to domestic violence protective orders. While it’s understandable that Vullo wanted to address the gun violence epidemic, government censorship wasn’t a constitutional response to the problem.
The right to advocate views the government opposes safeguards our ability to organize for the country we want to see.
The NRA’s case is hardly the first time government officials have sought to use private parties to penalize those with whom they disagree. Our nation’s history is replete with examples. And when the government threatens businesses in this way, the businesses often go along. As summed up by a slogan during the McCarthy Era: “Why buy yourself a headache?”
During the McCarthy era, from the late 1940s to 60s, the government regularly pressured private entities to fire people it perceived as connected with the Communist Party. The FBI and the House Committee on Un-American Activities delivered the names of employees who had alleged connections to “subversive” organizations, or even subscriptions to their publications, to private employers like defense contractors, universities, newspapers, and major corporations such as General Electric and U.S. Steel. Employers that failed to fire these employees faced loss of lucrative government contracts, necessary licenses, targeted investigations, and public smearing.
The ACLU itself has been the target of such efforts. In the late 1930s, Jersey City Mayor Frank Hague bragged that the reason the ACLU and the Congress of Industrial Organizations (CIO) had been unable to book a single private hall for meetings or speakers was because the hall owners are his “friends” and knew that he did “not approve of un-American groups coming into Jersey City.” The one hall owner who did rent his hall to the CIO for a meeting was then charged with a building violation. When asked about the violation at trial, Hague responded “Any port in a storm, Counselor”—effectively acknowledging that the violation was in retaliation for renting the private hall to a disfavored speaker.
The ACLU’s predecessor, the National Civil Liberties Bureau, confronted similar efforts during World War I. When the Justice Department attempted to put the Industrial Workers of the World (IWW) out of business by filing criminal charges against more than 100 members who had called for labor strikes, accusing them of undermining the war effort, the National Civil Liberties Bureau placed an advertisement seeking funds for the IWW’s “right of a fair trial.” The government responded by coercing The New Republic, a privately-run media company, to support its goal by threatening to revoke the magazine’s second-class mailing privileges if it reprinted the message.
Southern states turned to this tactic in their resistance to racial integration established in Brown v. Board of Education. Some states mandated public disclosure of the National Association for the Advancement of Colored People’s (NAACP) members, and relied on private entities that shared the state’s commitment to maintaining white supremacy, such as the White Citizens’ Councils, to publicize the disclosures to private business owners who were expected to then punish those named. As a result, NAACP members were fired, denied credit, prohibited from purchasing goods, evicted or had their home loans foreclosed, and subjected to threats of and actual violence. This public-private partnership became a blueprint for how to use racialized violence as an “economic cold war” to render both Black and white supporters of the NAACP “destitute” and undermine their ability to advocate for racial justice.
Nor is this tactic a relic of the past. In Florida, Gov. Ron DeSantis directed the state agency in charge of liquor licensing to see if it could stop private entities hosting performances of “A Drag Queen Christmas.” After the shows went forward, a non-profit theater venue in Orlando and the Hyatt Regency Miami faced actions to revoke their liquor licenses for allegedly violating laws prohibiting lewdness, vulgar exposure of sexual organs, and obscene performances—despite the agency’s own undercover agents attending and reporting that there were no “lewd acts” or “exposure of genital organs.”
Maria Vullo followed the same playbook. As the state’s top financial regulator, in coordination with then-Governor Andrew Cuomo, she expressly targeted the NRA for its “gun promotion” advocacy and urged all the banks and insurance companies she regulates to refuse to do business with the NRA. She offered leniency to one insurer for legal infractions if it would cut its ties to the NRA, and extracted promises from the NRA’s three largest insurance partners never to provide “affinity insurance” to the group’s members ever again.
NRA v. Vullo isn’t just about the NRA. It’s about all of our First Amendment rights to advocate for causes we believe in, without being targeted by public-private ventures of retaliation. If New York can do this to the NRA, then Oklahoma could similarly penalize criminal justice reformers advocating for bail reform, and Texas could target climate change organizations advancing the view that all fossil fuel extraction must end. The right to advocate views the government opposes safeguards our ability to organize for the country we want to see. It’s a principle the ACLU has defended for more than 100 years, and one we will continue to protect from government censorship of all kinds, whether we agree or disagree with the views of those being targeted.
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