Below is my column in USA Today on the alliance of civil libertarians and gun rights groups to oppose New York’s attack on free speech rights in the name of gun control.
Here is the column:
Each year at the U.S. Supreme Court, an array of marquee cases tends to draw all of the attention. However, there are also sleepers among the pending cases that have significant importance. One such case involves a rare alliance between the American Civil Liberties Union and the National Rifle Association.
NRA v. Vullo deals with the growing effort by government agencies to target the advertisers of conservative and dissenting websites to kill the funding for opposing views. While the case deals with this effort on the state level, it could produce a ruling on indirect efforts by government, including the Biden administration, to censor viewpoints.
In the case before the court, New York’s Department of Financial Services is accused of using increased regulatory scrutiny and possible penalties to coerce financial institutions into ending their support for certain black-listed groups. The NRA documented how former DFS Superintendent Maria Vullo appears to have pressured financial institutions to drop any association with the organization.
Specifically, the NRA contends that Vullo’s office pressured insurance companies not to cover the NRA or risk retaliation from the state. As the ACLU noted in its amicus brief opposing the defendants’ motion to dismiss the case, the NRA might not be able to prove these allegations, but it should be given the opportunity to do so.
It’s chilling that the U.S. Court of Appeals for the Second Circuit refused to allow the NRA to prove its case. It rejected any First Amendment claim, despite evidence that New York tried to silence opposing political views.
The Second Circuit declared that even if Vullo had “engaged in unconstitutionally threatening or coercive conduct,” she would be protected by qualified immunity. The decision is a virtual green light for a type of soft censorship that uses surrogates and regulatory pressure.
Biden administration tries to censor free speech
Under the Biden administration, there has been a consistent attack on free speech through the censorship and blacklisting of opposing groups. Even facts are now deemed dangerous “malinformation,” if used in a way that the administration deems misleading or harmful.
For example, according to an investigation by the Washington Examiner, the federal government helped to fund the Global Disinformation Index (GDI), which discourages advertisers from supporting sites accused of promoting disinformation.
All 10 of the sites that GDI claimed were the riskiest are popular with conservatives, libertarians and independents. GDI warned advertisers that they were accepting “reputational and brand risk” by “financially supporting disinformation online.”
The “risky” sites included Reason, a libertarian-oriented source of news and commentary about the government. Conversely, HuffPost, a far left media outlet, was included among the 10 sites at lowest risk of spreading disinformation. (GDI included USA TODAY in this group.)
A triumvirate of government, corporate and academic institutions are involved in efforts to control free speech by throttling the funding for its exercise. If you want to be heard in a large context, you either stay within the lines set by these groups or face pariah status.
Florida ban violates free speech:DeSantis tramples on free speech rights of Florida students who support Palestinians
Efforts to control the funding of free speech are consistent with a larger campaign by this triumvirate. The Biden administration has relied heavily on what I have described as “censorship by surrogate” in using social media companies to silence opposing viewpoints. As I testified in Congress, the use of corporate agents still violates the First Amendment.
Indeed, a federal judge found that the Biden administration had operated a censorship system that was truly “Orwellian.”
NRA v. Vullo is critical free speech case
That is why NRA v. Vullo could prove to be one of the most important free speech cases of the decade. New York (and the Second Circuit) would allow the government to deny free speech by cutting off its financial oxygen.
As shown by the alliance of the ACLU and the NRA in this instance, this is a fight that most citizens should be able to embrace, regardless of our differences. For every Vullo on the Democratic side, there could be a dozen Vullos on the conservative side who use the same type of coercion against pro-abortion or environmental groups.
The Supreme Court could prevent this race to the bottom by imposing a bright-line rule against content-based discrimination by government agencies. The soft censorship in NRA v. Vullo will have hard consequences for free speech if New York prevails.
Jonathan Turley is the Shapiro professor of Public Interest Law at George Washington University. Follow him on X @JonathanTurley. He teaches a course on the Supreme Court and the Constitution.
I wonder what the reaction would have been if Trump had threatened the use of F-15’s against US citizens.
Turley you’re wrong on the Florida and the removal of the student group.
At what point does protected speech lose its right to be protected.
Its a slippery slope but when its a call to action in support of terrorists, which btw you recognize… then its no longer protected.
Also… its not a free speech issue.
Its the fact that the actions of the group violate the student conduct guide of the universities.
That’s a different kettle of fish
-G
Sorry Gumby – you are wrong.
The standard for government restricting speech especially policital speech is a very high bar.
See Brandenburg V. Ohio.
DeSantis can not use government to restrict SJP’s free speech rights – even if they are advocating for Hammas a terrorist organization.
They can not do so even if SJP actually advocates for violence.
Constraining speech as incitement is really really difficult.
The threat must be clear, specific, credible, and immediate.
It does not matter whether we are talking about the NRA, or SJP or Trump or J6 protestors,
It does not matter if we are talking FBI or DHS threatening. courcing begging or even just asking social media to censor.
It does not matter if govenrment is merely funding groups advocating for censorship.
The answer is NO! Govenrment may not do that.
While I do not know enough facts to know for certain that as an example
SJP was not funding the purchase of rockets by Hamas – which could result in sanctions.
What appears to be the case is they are being sanctioned for offensive speech and that is not constitutional
John, your post explained to the world that Svelaz cannot think and is duplicitous. He would sink to the bottom of the sea, but for the decomposition of his body that causes it to rise again.
“While I do not know enough facts to know for certain that as an example
SJP was not funding the purchase of rockets by Hamas – which could result in sanctions.
What appears to be the case is they are being sanctioned for offensive speech and that is not constitutional”
You are looking at this situation very narrowly and, therefore, neglecting more important things.
Money and labor are fungible. Consider that when thinking of this situation,
@John Say…
Its not that simple.
SJP makes a proclamation ‘Death to Jews’.
You want to argue free speech.
Yet said speed violates code of conduct which all students are expected to follow.
So universities can shut them down.
DeSantis dictating this to State Funded Schools … telling them to shut down all SJP because of their actions… is that wrong?
The students or err former students can go off campus and have a protest party saying the same thing. They might get a ticket or arrested for blocking traffic… but they are within their 1st amendment rights to say it… just how they say it may matter.
-G
“the group violate the student conduct guide of the universities.”
Gumby, as you demonstrate, the sanctioning of SJP is a complex case that is greater than the discussion of free speech. You point this out, “the group violate the student conduct guide of the universities.” I don’t specifically know what is in the conduct guide, but SJP violates a lot of norms. The overt promotion of racism might be one.
Turley agrees Hamas is a terrorist organization, but that is unimportant because Hamas is deemed a terrorist organization by the US and EU. That creates problems for SJP as they are supporting a terrorist organization. The question is how SJP is linked, and this linkage has a significant history when dealing with the Muslim Brotherhood. That leads to the question, will SJP enter the court system and open itself and the Muslim Brotherhood to discovery? In the past, non-existent linkages suddenly appeared to exist.
Sunshine is a disinfectant, so I am not opposed to permitting it to shine on the SJP and the Muslim Brotherhood.
@S.Meyer,
Yes, it is a complex issue.
While everyone, including Turley focus on the 1st Amendment, the issue goes to the heart of the violation in the context of the student’s handbook. Note this differs by University, but they are fairly consistent on this topic.
That’s why I’ve been saying its one thing for you to go out in public and say or do something, yet a student on a university campus cannot.
There are rules which the student and their groups must abide by. When they don’t. The universities can take action.
If you were paying attention to the hearings. Stefanik nails the Presidents on this exact issue. They kept saying it depends on the context which was the wrong answer. There are two issues. Raising the expression in the context of a conversation and the other is using it in a threatening manner. Its the latter which Stefanik was referring to and the presidents knew this. They also knew that if they did give the correct answer, the follow up question is why aren’t they taking action. (Which they didn’t want to say…)
The problem here is that we have way too much noise and a lot of ignorance on the part of a couple of ‘trolls’ for a lack of a better word … so that its impossible to have a real discussion.
-G
Gumby, I agree with you and like the clarity you bring to the table.
Dear Prof Turley,
Happiness may be ‘a warm gun’, but the legal minutia of NRA v Vullo is more like termites knawing on the foundation of free speech. It may rot the speech floorboards out eventually, but it will take a while.
Meanwhile, the Biden DoJ has pulled another Hunter Biden juju. On Friday night before New Year the Dept. of Justice quietly announced they were closing the FTX Bankman-Fried fraud affair without further ado. Oh, they nailed him absconding with a few billion dollars of other peoples money (e.g. Ukraine’s sovereign wealth fund), but are not that interested in the 100s of millions Bankman-Fried donated to, uh, competitive U.S. political campaigns (iirc, Bankman-Fried was Joe Biden ‘Soul of the Nation’ campaign’s largest contributor.)
https://www.msn.com/en-us/news/politics/another-political-cover-up-at-biden-s-doj/ar-AA1mraZ8?ocid=msedgntp&cvid=b6ef0efc9cb5496081aa09567e8c9d22&ei=18
*viz ‘soft surrogates’: If the tree of free speech falls in the forest and no one hears it, what does it matter?
“. . . a product that will encourage people to shoot other people.”
That is the emotional state of a petrified toddler. See object. Feel fear. “Mommy, make the fear go away.”
Most adults have a more sophisticated ability to think.
Sam,
But people who suffer from hoplophobia are not rational. They fear an inanimate object that has no conscious of it own, no capacity to act on its own.
A Winchester 1873 rifle was found leaning up against a juniper tree in the Great Basin National Park in November of 2014. The rifle was made in 1882. The rifle has been estimated to have been there, leaning up against the juniper tree for 130 years. During that time, at no time did it shoot anyone. It just sat there.
“hoplophobia”
Learned a new word. Thanks!
Jonathan: I think this is the first time you have addressed the attacks on “free speech” under Gov. DeSantis in FL. But I applaud you for finally taking a forthright position against DeSantis’s “deactivation order” against the peaceful demonstrations against Israel’s genocidal war against the Palestinians in Gaza. The only problem is that you are a Johnny come lately to the issue.
For almost 2 years DeSantis has been suppressing “free speech” rights in FL schools–silencing teachers for wanting to address LGBTQ+ and race with their students. The Governor has encouraged parents to bring lawsuits against teachers who might violate his law. Hundreds of books have been banned in public schools under DeSantis. DeSantis has even picked a fight with Disney for their “free speech” right to criticize his policies. When you address these other attacks on 1st Amendment rights by DeSantis maybe then we will find your serious on this important issue.
One other aspect that is problematic in your column is that you start by continuing your attacks on the Biden administration–complaining about its “attack on free speech through censorship and blacklisting of opposing groups”. There is no evidence that the Administration has directly or indirectly censored anyone or any group. The CDI list was an attempt to rank media platforms based on “reputational and brank risk”–ranking platforms in order by, among other things, lack of sourcing for news articles, refusal to provide their standards for news sourcing, or the frequent use of disinformation.
The problem for you is that the tabloid NYPost, owned by your employer and where you frequently source for your columns, is ranked at the bottom of media platforms for accuracy in its news stories, lacking of sourcing and disinformation. No wonder you don’t like the CDI rankings!
Finally Dennis an attack on Republicans or DeSantis that I can probably agree with.
It is not entirely clear from Turley’s editorial that SJP is not providing more for Hamas than advocacy.
Even if they were going beyond advocacy, I would require more than as an example sending humanitarian aide to Palestine to allow Dlorida to interfere with SJP’s free speech rights.
Ultimately I would find all govenrment entwinement in education as unconstitutional – as it automatically creates first amendment and other problems such as these.
Regardless government can not restrict speech – not by conservatives on twitter, not by college students on state campuses.
Not on private campuses.
While I can agree with you regarding the SJP,
Whether you like it or not Teachers and schools are entirely different – and that should be obvious.
No teacher is barred from protesting for HAMAS.
No Teacher is barred from participating in LGBTQ… marches.
Teaching is a job, and a teachers employer gets to decide what is permitted as part of that job.
You are free to chant ”
from the river to the sea” or “kill the jews” on your own time.
But if your job is to make widgets – you can be fired for offensive speech, or any speech that is not part of your job as defined by your employer.
There is no right to indoctrinate others. There is absolutely no right to indoctrinate a captive audience over the objections of the state, your employer, and their parents.
Your right to free speech does not preclude you from being fired from your job for engaging in your personal advocacy rather than what your employer is paying you for.
Employees are not hired or paid for doing whatever they please.
They are paid for doing what the employer values.
We hope those are aligned but it is not required.
John Say,
Well said.
Keep groomers out of schools and away from children.
The entire premise of why a “constitutional rule of law” system of government (American model) is superior to foreign “rule of man” models (unconstitutional authoritarianism) is:
This model creates a fair set of rules, that maximizes and protects individual freedoms, as long as one person’s exercise of rights doesn’t violate another person’s constitutional rights. These disputes are ultimately settled in courts.
This model favors no individual or no group, so sometimes a citizen may like the results. Other times a citizen may dislike the results. If this model is fundamentally flawed, there is a constitutional-amendment process to correct those flaws.
The First Amendment protects primarily “unpopular” (obscene, offensive, insulting) speech, unpopular individuals/groups, unpopular religions and protects all us from other people’s religious interpretations. It also protects everyone petitioning their government and protects a free press.
Since we are talking about the ACLU and NRA, everyone may want to check out the documentary “Mighty Ira” about Ira Glasser. Glasser pointed out that in order from African-Americans, Jewish-Americans to have a “constitutional rule of law” right to Freedom of Speech – you also have to use the same rulebook for unpopular, offensive and obscene speech of people most Americans strongly dislike. It’s impossible to write a constitutional law that also protects you and your group.
The 2A is more important today than ever. Had this Nevada Clark County Judge been armed, this would have never escalated.
Bill Ackman posted to X (Twitter) with a devastating takedown of DEI ideology after Claudine Gay resigned as president of Harvard. He says the entire Harvard board of trustees needs to be replaced:
https://twitter.com/BillAckman/status/1742441534627184760
This is significant because, not only is Ackman a billionaire and erstwhile Harvard megadonor, he is also has a voice that reaches a considerable number of people through the media. This could be the beginning of the tide turning on DEI’s reign of terror. As Churchill said after fascism suffered its first meaningful setback in 1940: this is not the end, it is not even the beginning of the end, but it is, perhaps, the end of the beginning.
OldManFromKS,
I think this may be the same as his article on The Free Press, Bill Ackman: How to Fix Harvard
https://www.thefp.com/p/bill-ackman-how-to-fix-harvard
Oh, cool. Thanks Upstate I didn’t realize he had published it other than on X.
OldManFromKS,
It was a good read.
If you get a chance, Bari Weiss has a podcast along similar lines: A Congressional Hearing, A Resignation, and Why DEI Must End For Good
https://www.thefp.com/p/a-congressional-hearing-a-resignation-3a8
@oldmanfromkansas
Saw that too. We can certainly hope. As with the Professor’s post, the question is: does anyone care, as they happily elect these people in NY? It’s absurd, but ‘getting’ the NRA, who they have been conditioned to think of as a bogeyman or Lucifer if they even hear the utterance of the name would appear to be more important to most of a certain mindset (the same people that think all churchgoers are automatically white nationalists). Real fair-mindedness doesn’t exactly seem to exist in spades on today’s eastern seaboard. We can hope.
OT (but related to prior Turley article) – Disney is doubling down on woke with its new Star Wars movie. The director is on record as saying her job is to make sure men have an unpleasant experience after they pay to see a movie. She is apparently more interested in “social change” than in good entertainment. Why else would a movie maker want paying customers to have an unpleasant experience using the company’s product?
https://www.newsweek.com/sharmeen-obaid-chinoy-director-star-wars-disney-boycott-1857598
@oldmanfromkansas
She seems to be very confused about who the actual audience for these films is. Then again, woke and young, and confused, are synonymous in the 21st century. I do think we are getting to the point where enough people are fed up with woke temper tantrums bordering on psychopathy coming from ‘adults’ the movie will tank, possibly worse than recent Marvel films. Kennedy may very well go down in history as the woman (and I use the term loosely, as hers is actually the sense and behavior of a petulant child) who bankrupted Disney. These people are not well and should never have been put in positions of authority.
Disney, Anheuser Busch, Nike, Gillette. Apparently they have billions to burn on “social justice.” If they actually cared about human beings, that money could have been better spent.
@oldmanfromkansas
They certainly do. Begs certain questions, I suppose. Still, no one is eternally immune to what people are actually willing to pay for, be it with dollars or bartering chickens. This is something today’s coddled minds do not seem to understand: capitalism, which is not inherently cronyism, is a whole lot easier than raising and then carrying around chickens in the hope you might make a deal, and that is where a new round of Feudalism/Socialism would lead us (and trust me: these idiot kids do not have what it takes to run a farm. ‘CHAZ’ proved that beyond the shadow of a doubt, with their vegetable seeds underneath cardboard in a parking lot 🙄 Those of us who know better would own them, metaphorically speaking, in about two seconds). Trying to think of a movie that was funded that way. 😂 If you or anyone else can enlighten me, please do. 😂 Thanks for sharing this, OT, but good, and certainly more broadly applicable at present. Such is the preposterous absurdity of the modern left in America. Spoiled brats having their way, wussy adults too scared to hurt their feelings. It is tragically that simple in many ways and places.
James,
Well said.
I have called out more than a few times that civil war must be avoided at all costs.
However, such a calamity might be what our soft, squishy leftists need. They do not know real suffering. They have never had to actually struggle. They think working a 9 to 5 job is crushing. They not only want but expect a job that pays them $200k a year the day after graduating college. And their college experience is their experience.
Ah, no.
Perhaps giving them the war they are pushing for just might give them the attitude adjustment they need.
Unfortunately, such an event would also hurt millions who want nothing to do with the war leftists are pushing for.
As for chickens, they are pretty low maintenance, but $10 is a lot easier to carry than a live chicken. I got a few chickens that are laying outside the coop, like down by the wood shed. It froze and of course cracked.
Reading that, she sounds like an a@@hole.
You can have a good, strong female lead character without being a dick about it.
This is another case of when a company puts wokeism first and the end consumer, the customer, a distant third or forth. Sure, there will be woke movie critics who will praise it, but it will bomb at the box office as they will spend a lot of money that no one wants to watch.
@Upstate
Yes, she does. I have never understood why to hardcore feminists, embodying the worst of what you oppose is supposed to make things better rather than employing what you claim are your inherent strengths, but reason does not exist on the progressive left, nor does, it seems, basic humanity. If strengths are strengths, than presumably they would be better. 🤷🏻♂️ No, this is just more petulance from a generation that grew up in the most peaceful and prosperous time in human history looking for excuses as to why their parents never challenged them on anything whatsoever. We are engaged in a puerile psychodrama that could end the world because it has extended beyond the high chair into the private sector, and it’s really quite astonishing that it could be so simple, if one takes a step back. Best to continue the ridicule and let them know exactly how idiotic and indeed puerile and useless they are, this is a free country. Marginalization really is the key, IMO. Hardcore marginalization.
James,
“this is just more petulance from a generation that grew up in the most peaceful and prosperous time in human history looking for excuses as to why their parents never challenged them on anything whatsoever.”
That right there.
They are accustomed to having nearly everything just handed to them. They fail even at a minor struggle. And then blame everyone, everything for their failures, never accepting responsibility for either actions or in-actions.
They are the shallow part of humanity, not offering much in character, depth, strength, grit or self resilience.
Is it feasible to sue the 2nd circuit as a co-defendant in a conspiracy to suppress free speech, choosing some interpretation of sovereign immunity over the more important constitutional consideration of governmental interference in speech? Certainly it should be easy to show that this was an act of political bias, considering the clear subverversion of constitution?
The Second Circuit has a history of hostility to First Amendment rights for people they dislike. See the 20-year Bronx Household of Faith litigation, where CA2 was fine and dandy with a NYC policy that said non-profit groups could rent out city buildings on the weekends, but not if they believed in God. The church in that case did not get relief in the courts, they only got relief when Mayor Deblasio changed the city’s discriminatory policy.
I don’t really understand the difficulty here. We have the Bill of Rights. It is there to protect us from out government, why is that not clear to everyone – and those on the prog/left can’t comprehend this perhaps they are living in the wrong country and should seek asylum elsewhere.
Divisive leaders won’t tell you this, but Republicans and Democrats are fighting the same enemy:
“Unconstitutional Authoritarianism” – where some (not all) governing officials perceive themselves as having authority that exceeds the U.S. Constitution.
It doesn’t mean these officials are bad people or have bad intentions, but they perceive the “constitutional rule of law” as optional-when-convenient instead of a real “restraint” on unconstitutional authority. Authority no government government official has ever had.
Rarely do we see the ACLU on the same side as the NRA fighting “unconstitutional authoritarianism”. Wouldn’t it be nice to have leaders like this?
time to fight back….cut all federal funding to cities, states, colleges and non-profits where anyone gets $100k+ of Benefit. Also tax those non-profits
Currently Democrats FUND anti-American Groups.
Democrats are BACKED by Soros, China and GROUPS that HATE AMERICA
if you VOTE for a Democrat…YOU HATE AMERICA
sure…but Fascist Democrats have the POWER and USE IT!
These groups of “monitors” even went after RealClearPolitics, a great site that actually shows both sides with columns on each issue juxtaposed with a take from the opposite side.
I am a huge fan of Professor Turley, I read him every day and I agree with him 90% of the time, maybe even 95% of the time, but I disagree with his worry that this slippery slope will lead to liberal groups being targeted by conservatives in positions of power. Please show me where a conservative government agency tried to use censorship to shut down a liberal group.
Please don’t say Disneyworld because for this to be analogous the NRA in NY would have had to have been attacking the governor on an issue that has nothing to do with guns. Such as the NRA mounting an attack on Hochul or Adams on immigration issues.
Do not say “book banning” because removing a book from a kids library is not banning a book. When a pop singer can give out copies of a book said book is not “banned’.
Do not say Bid Light as I don’t remember any government agency being involved in that disaster.
The right just wants to be left alone, the left is a fascist group run by little girls from the suburbs. The right doesn’t call for Madow or Reid to be fired or boycotted into oblivion, we just don’t watch them. The left tried to boycott Fox a dozen times.
When someone tells you or by their actions they are totalitarians, like the Democrat party, believe them.
It’s pretty obvious that almost every effort to suppress free speech, thought and association comes from the totalitarian left. Over the years, an increasing number of Democrat politicians and of course the ever present government bureaucracy of civil servants push for more control over individual freedoms. For that reason alone, the Democrats should be the last party of membership for anyone who values the God given freedoms that every individual has a right to. Yes, the “liberal” radicals of the 60s who fought against “the man”, have indeed become “the man”, with suppression of freedoms not even imagined by those in authority in the 60s. Strange and dangerous times we live in.
“The Second Circuit declared that even if Vullo had “engaged in unconstitutionally threatening or coercive conduct,” she would be protected by qualified immunity.” Interesting decision by the 2nd court of appeals. In effect saying that a government agency and their minions are protected by qualified immunity for unconstitutional behavior. Hmm. I just reread my little booklet of the US Consitution and I can’t find the place in the Constitution that grants qualified immunity for unconstitutional actions. I had always been taught, and I believe rightly, that the Constitution exists to limit the government, not the people.
There must have been a very small dose of LSD in the coffee that morning when the 2nd Circuit hashed out that abomination because otherwise the Circuit Court was giving away our rights based on some claim to expediency and with no foundation that I can find.
I know that New York does not like the NRA and has done everything they can to destroy the group but the NRA still has the right to present it’s case. This seems to mirror New York’s attempt to dissolve the Trump corporation. It would seem in the Northeast that if the government or officials of the government don’t like you, you’re dead to them and have no rights. A dangerous mindset. Maybe that’s why Florida and Texas and the Southeast look so inviting to businesses.
If I had a business in New York I would think seriously about leaving the state. Who knows when your flourishing business might raise the ire of some governmental functionary that will try to destroy you and be protected by the government that is supposed to protect you. New York State government seems to have forgotten why they exist. I would expect these sort of actions in Russia, Mainland China. Are we going to start see CEO’s suddenly disappear for months to years on end or friends of the governor start to fall out of windows. That line is close to being crossed.
“If I had a business in New York I would think seriously about leaving the state. “
Hannity becomes latest Fox News host to move to, broadcast from Florida
“Tonight we are now broadcasting from my new home, the great, free state of Florida. Like so many Americans, I left New York for good, and I’m now in a state with, let’s see, warmer weather, law and order, better education, more freedom, a better quality of life and guess what? No state income tax,”
NYS is the enemy of freedom…we closed our office in NYC & when possible, we no longer patronize anything to do with New York.
Letita James . Enough said
Easy for you, but I live here!