An interesting summary of the historical background to this pending Supreme Court case (in which I'm Counsel of Record, and which the ACLU's Legal Director, David Cole, will be arguing on March 18), by the ACLU's Jennesa Calvo-Friedman:
More than 60 years ago the Supreme Court ruled that the First Amendment bars the government from coercing private entities to punish speech that the government disfavors. Just as the government can't directly punish or censor speech it disagrees with, it cannot do so indirectly by coercing private parties to do the same.
History underscores the importance of this free speech protection. Government officials have all too often enlisted private parties—from the White Citizens' Councils of the Jim Crow South to the blacklists of Communists in the McCarthy era—to punish those with whom they disagree. New York's efforts to punish the National Rifle Association, at issue before the Supreme Court in National Rifle Association v. Vullo, follow in the footsteps of those earlier censorship efforts.
The ACLU disagrees sharply with the NRA on many issues, yet we are representing the group in this case because of the First Amendment principles at stake. We argue that Maria Vullo, a New York state regulator, threatened to use her regulatory power over banks and insurance companies to coerce them into denying basic financial services to the NRA and, in Vullo's own words, "other gun promotion" groups. Vullo's threats were expressly based on her disagreement with the NRA's advocacy. And they worked. Several insurance companies and banks refused to work with the NRA out of fear of reprisals from New York regulators. The ACLU urges the Supreme Court to hold that coercing third parties to break ties with the NRA because of its advocacy violates the First Amendment….
I should stress again how pleased I am that the ACLU is representing the NRA here, precisely because the two disagree so sharply on gun rights questions. Indeed, on Second Amendment issues I generally agree with the NRA much more than the ACLU. But so what? The First Amendment is about protecting speech, even of those with whom you disagree. The ACLU's participating in the case sends that message loud and clear.
If you're interested in our substantive arguments, you can see them in the petitioner's brief, which is also signed by Alan Morrison, co-founder with Ralph Nader of the Public Citizen Litigation Group, as well as other ACLU lawyers (including Calvo-Friedman, the author of the article), plus the NRA's original lawyers at Brewer Attorneys & Counselors and me. And you can read the rest of the ACLU article for more historical examples of the government using threats to third parties to try to restrict speech.
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