In the case of NRA v. Vullo which is touted to be argued before the US Supreme Court this term, New York state officials are alleged to have violated the spirit of the First Amendment through what is known as informal censorship.
It’s made clear, if the First Amendment stands for anything, it should prevent government officials from victimizing entities due to disagreement with their expressed views. An alleged example of this is where Maria Vullo, the Superintendent of the New York State Department of Financial Services, is claimed to have used her position to influence insurance companies to refuse insuring the National Rifle Association (NRA) for its views and advocacy.
Following the infamous mass school shooting in Parkland, Florida, in 2018, Vullo is said to have had meetings with executives from global insurer Lloyd’s of London to discuss her opinions on gun control and how their underwriting of NRA-endorsed insurance policies could possibly raise regulatory issues. Couched as advice, Vullo then purportedly issued guidance letters to all insurance companies and banks operating within the state, advising them to consider their potential business and reputational risks involved in their associations with the NRA or similar organizations.
This raises serious questions around formal versus informal censorship and how such informal and perhaps ‘covert’ measures can circumvent constitutional bans on censorship, leading to potentially even greater violations of the First Amendment. The difficulty lies in the tracking and accountability of these informal actions since they often occur behind closed doors, without public oversight.
The Supreme Court will be faced with the challenge of providing clear guidance around this issue of informal censorship, establishing a structured test that takes into account a range of important factors like official capacity, veiled threats about potential prosecutions or lawsuits, word choice, and tone.
This case holds a significance that extends beyond just the NRA; it can potentially affect all Americans by safeguarding them from illegal government coercion posing as advice or guidance.
This analysis is based on the perspective of Abby Smith, an amicus attorney at the Foundation for Individual Rights and Expression. More details about the case can be found at Bloomberg Law.