HELENA – Montana Attorney General Austin Knudsen led a coalition of 23 attorneys general and the Arizona Legislature Tuesday in filing an amicus brief in support of the National Rifle Association’s case against a New York state official who trampled on the organization’s First Amendment right to free speech. The case has implications for any organization that engages in political speech or activity.
In the brief, Knudsen asks the United States Supreme Court to reverse a U.S. Circuit Court of Appeals for the Second Circuit ruling giving officials license to stifle their political opponents’ protected speech by financially crippling them. The Supreme Court decided to hear the case against Maria Vullo, the former superintendent of New York’s Department of Financial Services (DFS), after Attorney General Knudsen filed a brief in April asking the court to take up the case.
“Free speech is one of the greatest privileges we have as Americans. No organization should be financially impacted because of political disagreements with government officials,” Attorney General Knudsen said. “Using mafia-style tactics, anti-gun government officials in New York have trampled on that right by threatening companies for doing business with organizations that defend our right to keep and bear arms. No official should have that power – it’s a blatant violation of the First Amendment. The Supreme Court should make the right decision and overturn the lower court’s ruling.”
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 brief, the attorneys general ask the Supreme Court to protect Americans’ right to free speech from government officials.
In the six decades following the Supreme Court’s seminal decision in this area, Bantam Books, Inc. v. Sullivan, courts must consider the official’s regulatory authority and the specific language. In this case, the lower court dismissed the relevance of Vullo’s “direct regulatory authority over the target audience” and the likelihood that some “may have perceived [her] remarks as threatening.” The NRA was required to point to explicit threats to support its claim, but that “myopic focus on explicit threats departs from Bantam Books’ contextual approach and hands government officials a powerful tool to crack down on disfavored political speech.”
“Rather than overemphasizing explicit threats, this Court should reaffirm Bantam Books’ contextual inquiry, which focuses on the defendants’ actual or apparent regulatory authority over the targeted entity, the language used in the alleged threat, and whether the targeted entity reasonably perceived the statement as a threat,” the attorneys general wrote.
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, government officials will likely employ similar tactics to stifle disfavored speakers,” the attorneys general wrote. “As in Vullo, officials could target financial institutions that advocacy groups depend on to engage in robust political advocacy—whether related to school choice, abortion, religious liberty, or environmental issues… If this Court doesn’t shut down that path, ‘where would such official bullying end?’”
Attorneys general from Alabama, Alaska, Arkansas, Georgia, Idaho, Iowa, Kansas, Kentucky, Louisiana, Missouri, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia, and Wyoming also joined the brief.
Click here to read the brief.
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