Supreme Court Says Government Bullying Can Violate the First Amendment

The U.S. Supreme Court unanimously held this morning that the NRA can proceed in its lawsuit against New York bureaucrats who tried use their regulatory powers over banks to intimidate them into cutting financial ties with the NRA—out of their disagreement with the NRA’s beliefs. As we argued in the brief we filed, today’s pervasive regulatory state makes this a particularly serious threat: it enables bureaucrats to pressure private businesses in ways that violate the Constitution—and government officials are sometimes quite proud of the fact.

In 2012, for example, the mayors of Chicago, Boston, Washington, D.C., and San Francisco all told Chick-fil-A restaurants that they were “not welcome” in those cities due to the fact that the owners (devout Christians) donated money to anti-same-sex marriage organizations. Since these restaurants need approval from zoning boards and other regulators, that kind of threat is obviously quite serious—and the owners were Chick-fil-A were forced to back down and cease donating to these organizations. That’s a clear violation of the First Amendment right to freedom of expression.

During the oral argument in the NRA’s case, in fact, the government’s lawyer even brought up this argument. Former Solicitor General Neil Katyal claimed that lawsuits like the NRA’s should be barred because many other individuals or companies might challenge the legality of government orders that seek to retaliate against speakers. “[What] they want to do [is] to open up lawsuits for when Chick-fil-A isn’t being zoned in the right place,” said former Solicitor General Neil Katyal. Allowing First Amendment lawsuits under circumstances like these would open the floodgates to litigation.

But the Court rejected the floodgates argument. “Where, as here, a government official makes coercive threats in a private meeting behind closed doors,” wrote Justice Sonia Sotomayor, “the ‘ballot box’ is an especially poor check on that official’s authority. Ultimately, the critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries [such as the regulated banks].” Since “a government official cannot do indirectly what she is barred from doing directly,” and the government isn’t allowed to punish the NRA, or Chick-fil-A, for its expression of its beliefs, then government regulators are also prohibited from “nudging” censorship, by pressuring people not to do business with those the government dislikes.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation and holds the Duncan Chair in Constitutional Government.