Across this country controversies are raging about free speech and its meaning. Some of them are triggered by outrageous and offensive things that people say; others because freedom of speech is being used as a shield to protect people who are advancing nefarious causes.
The bright lines that once divided defenders of free speech from its critics have in recent years become blurry as other values come into focus and as political alignments have shifted. Liberals, once the most ardent defenders of free speech, now often favor restrictions on speech that denigrates or damages marginalized groups, in order to achieve their goal of promoting equality. Conservatives, long known for their willingness to limit or regulate offense speech, now argue for an almost unregulated marketplace of ideas.
Our country is divided over the question of whether we should evaluate free speech claims in light of the messages or causes that speech seeks to advance. Favored speech becomes the stand in for free speech.
When the American Civil Liberties Union (ACLU) announced on Dec. 9 that it had agreed to represent the National Rifle Association (NRA) in a case the Supreme Court will hear this spring, it quickly found itself caught up in such a free speech controversy. That same day, the New York Civil Liberties Union responded that it “strongly disagrees with the ACLU’s decision to directly represent and therefore provide direct support to the NRA.”
The NRA’s case, as The New York Times notes, raises the question of whether “Maria Vullo, a former superintendent of the New York State Department of Financial Services (DFS), leveraged government power in a way that violated the First Amendment.”
The NRA contends, according to the Times, that “Ms. Vullo crossed a constitutional line by encouraging banks and insurance companies to stop doing business with the group after the 2018 school shooting in Parkland, Fla. The rampage left 17 people dead.”
Vullo’s campaign against the NRA was hardly subtle. It took two forms.
First, even before the Parkland shooting, the Times says that she “launched an investigation of three insurance companies that are partnered with the NRA to provide coverage for losses resulting from gun violence even in circumstances where the insured intentionally killed or injured someone or what otherwise engaged in intentional wrongdoing.”
That investigation focused on the legality of what the NRA wanted to do and clearly demonstrated the power of regulatory agencies to influence behavior. One year after Vullo launched the investigation, three companies “entered into consent decrees with DFS, whereby they ‘acknowledged that some of their NRA-endorsed insurance programs violated New York law.’”
But Vullo didn’t stop there.
Deeply troubled, as she should have been, by what happened in Parkland, she spoke out publicly about gun violence and her distaste for the NRA, even though she had no direct responsibilities for gun safety or gun policy in the state of New York.
She joined in a press statement issued by the New York state governor’s office. As The Wall Street Journal reports, it “quoted Ms. Vullo as saying that corporations need to ‘lead the way’ on ‘positive social change … to minimize the chance’ of future shootings. DFS urges all insurance companies and banks doing business in New York to join the companies that have already discontinued their arrangements with the NRA.”
In April 2018, Vullo followed up this statement by sending out so called “guidance letters” to the businesses and entities that her agency was responsible for regulating. They were labelled “Guidance on Risk Management Relating to the NRA and Similar Gun Promotion Organizations.”
Those letters referenced the Parkland and other mass shootings and condemned the increasing “tragic devastation caused by gun violence,” calling it a “public safety and health issue.” The guidance letters also observed that those tragedies had resulted in strong social backlash against the NRA and similar organizations and predicted that the backlash would increase after the Parkland shooting.
Vullo urged DFS-regulated entities to “continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations, if any, as well as continued assessment of compliance with their own codes of social responsibility.”
While The Wall Street Journal claims that Vullo’s goal “was to punish the NRA for its gun-rights advocacy,” the guidance letters did not contain any explicit threat of investigations or enforcement actions if those entities continued to do business with the NRA.
They didn’t have to.
As scholars of government regulatory agencies have long noted, the agencies have enormous discretion and authority to launch investigations. They have many tools to make the lives of those they regulate difficult. People know they may pay a large price if they offend those who regulate them.
As sociologists Susan Silbey and Egon Bittner put it more than 40 years ago, generally speaking “laws have — in addition to their specifically intended import — other, unintended capacities or uses and … the range of such capacities and uses depends on the imagination and resourcefulness of the law’s users, whoever they may be.”
After receiving the guidance letters, one New York banker said that they “felt somewhat politically motivated” and, as if channeling Silbey and Bittner, “[i]t’s hard to know what the rules are if I don’t know what the rules are.”
The NRA’s suit alleges that Vullo’s intervention targeted the organization, sought to chill its right to advocate for its preferred policy positions, and violated the First Amendment guarantee of freedom of speech.
So far the NRA has not prevailed.
It first lost in a federal district court and then again last year in the 2nd Circuit Court of Appeals. The latter concluded that nothing Vullo did “implied threats to employ coercive state power to stifle protected speech.”
Instead, it found that Vullo was merely trying to convince the regulated agencies of the wisdom of her preferred policy position and that, as a government official, she was entirely free to do so.
As the court put it, her guidance letters “were written in an evenhanded, nonthreatening tone and employed words intended to persuade rather than intimidate.” But it is the effect of those words, not just the intention of those who wrote them, that matters when government officials weigh in as Vullo did.
Here is where the ACLU comes in.
Saying that it “does not support the N.R.A. or its mission,” the organization explained that it “signed on as co-counsel because public officials shouldn’t be allowed to abuse the powers of the office to blacklist an organization just because they oppose an organization’s political views.”
In its appeal to the Supreme Court the NRA contends that the 2nd Circuit decision “gives state officials free rein to financially blacklist their political opponents — from gun-rights groups to abortion-rights groups to environmentalist groups and beyond.”
Or as David Cole, executive director of the ACLU, told The New York Times, “If Maria Vullo can do this to the N.R.A., then why couldn’t a regulator in Texas do it to an immigrants’ rights group or a regulator in Arkansas do it to Planned Parenthood?”
Looking to the future, Cole warns, “Donald Trump has made no bones about his desire to retaliate against his opponents. This would be a playbook for him to do exactly that.”
Public officials, like Vullo, must be free to argue for or against particular policies or to criticize particular groups. But, when they do so, they must not suggest in any way that they may use their authority to punish those who oppose them, especially when their opponents advocate policies that many find repugnant.
As the political theorist George Kateb argues, “Freedom has the most meaning when the temptation is strongest to abridge it and the temptation is resisted.” While I agree with Vullo about the NRA’s response to mass shootings like the one in Parkland, she failed to resist the temptation that Kateb names.
Let public officials and citizens carry on the battle over the NRA’s policy prescriptions without using the government’s levers of power to tilt the playing field on which policy differences about guns and free speech controversies should be resolved.
Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not necessarily represent those of Amherst College.