April 6, 2023
Today, Utah Attorney General Sean D. Reyes joined an 18-state coalition calling on the United States Supreme Court to reverse a lower court’s decision giving officials license to stifle their political opponents’ protected speech by financially crippling them. The U.S. Circuit Court of Appeals for the Second Circuit dismissed a case brought by the National Rifle Association case against Maria Vullo, the former superintendent of New York’s Department of Financial Services (DFS), who trampled on the NRA’s First Amendment right.
Vullo, who had regulatory authority over financial institutions in the state, engaged in a politically motivated campaign against the financial institutions doing business with the NRA but steered clear of any explicit threats. But the financial institutions got the message to “drop the NRA or else,” the attorneys general wrote. In the amicus brief filed Wednesday, the attorneys general ask the Supreme Court to protect Americans’ right to free speech from woke government officials.
“The Second Circuit’s decision gives government officials license to financially cripple their political opponents, or otherwise stifle their protected speech – whether those rivals advocate for school choice, abortion rights, religious liberty, environmental protections, or any other politically salient issue,” the attorneys general said in the brief.
The attorneys general highlight the fact that the Court of Appeals split from the consensus approach of at least six federal circuits when issuing their decision. In the six decades following the Supreme Court’s seminal decision in this area, Bantam Books, Inc. v. Sullivan, federal courts have looked through forms and to the substance of a government official’s words and conduct to determine if the official threatened to use coercive state power to crackdown on disfavored speech. But in this case, the Second Circuit flipped this approach on its head, effectively requiring a government official to explicitly threatened adverse consequences before any First Amendment violation occurs, even if any interested party would understand a state official’s words or conduct as an implied threat.
The attorneys general also argue that the lower court’s decision in the case erodes First Amendment safeguards for private political speech and paves the way for the government to suppress speech it doesn’t agree with or doesn’t like.
“If the Second Circuit’s decision is left standing, it’s not difficult to imagine government officials employing similar tactics to stifle disfavored speakers. Whether the method of choice is to target financial institutions that advocacy groups depend on to engage in fulsome political advocacy…or simply to target private organizations that host events for such groups, the path forward is clearly marked,” the attorneys general wrote. “And if this Court doesn’t intervene to shut down that path, ‘where would such official bullying end?'”
Attorneys general from Alabama, Arkansas, Georgia, Iowa, Kansas, Kentucky, Louisiana, Missouri, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, West Virginia, and Wyoming also joined the brief led by Montana Attorney General Austin Knudsen.
Read the filed amicus brief here.