Lawyers are reading between the lines of the US Supreme Court’s decision to revive the National Rifle Association’s free speech fight against a New York regulator to see what the implications may be for a similar dispute involving the Biden administration.
Thursday’s ruling has bolstered hopes for some that the court will soon stop the government from trying to limit conservative speech online, while others expect the justices to use the NRA ruling as a reference point in deciphering when government actions violate the First Amendment.
A unanimous court came up very clearly on the idea that a government can’t do through third parties what the Constitution prohibits, said Adam Candeub, a communications and antitrust law professor at Michigan State University.
“That was very encouraging,” he said.
In NRA v. Vullo, the court said the gun rights lobby had sufficiently alleged that New York state officials coerced private parties to cut ties with the group following the 2018 shooting at Marjory Stoneman Douglas High School in Parkland, Florida.
“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,” Justice Sonia Sotomayor wrote for the court.
“What she cannot do, however, is use the power of the State to punish or suppress disfavored expression,” she said.
That’s the part of the opinion attorneys are pointing to as an indication of how the court might rule in Murthy v. Missouri. The justices are expected to issue an opinion by the end of June on whether the Biden administration improperly coerced social media companies to take down what government officials saw as Covid-19 and election misinformation.
“I’m cautiously optimistic about what it forecasts for Murthy,” said Jenin Younes, litigation counsel for the New Civil Liberties Alliance, which represented four of the five individuals who sued the federal government alongside Louisiana and Missouri.
Government officials are entitled to try and persuade companies to do the right thing but they can’t use the bully pulpit to censor speech, Younes said.
“That was our argument and the court seemed to sort of agree with that,” she added.
Jawboning Claims
Other free speech experts, though, say the Vullo decisions provides very little for any reading of tea leaves.
Both cases involve claims of “jawboning,” the use of informal pressure to influence speech decisions, said the Foundation for Individual Rights and Expression’s Chief Counsel Bob Corn-Revere.
In Vullo, a New York state insurance regulator is accused of threatening to take enforcement actions against banks and insurance companies if they don’t stop doing business with the NRA in an effort to stifle the group’s pro-gun message.
In Murthy, the White House, the Surgeon General’s Office, the Centers for Disease Control and Prevention, and the FBI are accused of pressuring some of the most popular social media platforms to take down posts they saw as misleading or deplatform the users who made them.
Corn-Revere said the justices made clear the multi-factored test that court’s should apply in analyzing these claims, including looking at the tone of the interactions and whether there were threats of an adverse action.
But in clarifying the test, the court emphasized the fact-specific nature of that inquiry, Corn-Revere said. So there’s clarity about what factors to consider but not how they should apply, he said.
“It’s hard to make predictions because the factual records are very different,” Corn-Revere said.
No Threat
One factor the government pointed to in March during the arguments in Vullo was whether the officials had made any threats.
In Vullo, the regulator “threatened adverse action in the form of an enforcement action so that” the insurance companies “would comply with a specific instruction to cut ties with all gun groups,” Justice Department lawyer Ephraim McDowell said during arguments.
“In Murthy, there was no threat at all,” he said. “There were just talks about legislative reforms, but they were not connected to any specific instruction.”
Because of that, some attorneys expect the court will try to find some sort of middle ground.
Devin Watkins, an attorney at the libertarian Competitive Enterprise Institute, said the justices are likely to cite their ruling in Vullo in creating a clear line between threats and the kinds of encouragement that’s allowed, and then send Murthy back to the US Court of Appeals for the Fifth Circuit.
“I doubt either side is probably going to win in the end,” he said.
