12 Free Speech and Social Media

Government Pressure on Private Speakers, or “Jawboning”

Government attempts to censor or regulate private speech actors raise obvious First Amendment problems. Less obvious, but still potentially problematic, is when government actors attempt to use their authority – short of direct censorship – to pressure individuals or companies to withdraw their support or platforming of speakers the government disfavors. Such tactics are increasingly referred to as “jawboning” in the First Amendment context.

A quick example. The president of the United States is angered by a news report that casts them in a negative light. On social media, they threaten to regulate the company to prevent such “unfair” reports from occurring again. In response, the president’s FCC threatens investigations, as well as hints that a merger between the parent company of the news organization will no longer go through. Both of these actions would fit the jawboning definition.

As indirect pressure (or pressure on the entity that funds or platforms a speaker, rather than the speaker themself) can violate the First Amendment just as direct censorship would, such actions often (and increasingly, given the importance of social media platforms and their potential vulnerability to such pressure) lead to lawsuits. Jawboning is somewhat harder to prevent than direct censorship, for at least two reasons. First, the presence of multiple actors makes it harder to show the causal links between the government pressure and the impact on the speaker, often creating challenges to standing. For example, in Murthy v. Missouri (2024), several social media users had been deplatformed from Facebook et al. because of posts that contained misinformation about either COVID or the 2020 election (ones that allegedly violated the terms of service for these platforms). The users sued, arguing that the platforms had changed their posting rules in response to pressure from Biden administration officials concerned by the presence or amplification of such speech. The Court ruled that the plaintiffs lacked standing to sue, holding that they had not proven that the decision to ban them was caused by or traceable to government actors (arguing, for example, the timeframes between government requests for the platforms to do more about misinformation and the deplatforming decisions did not match up). Second, plaintiffs must show that the pressure on private actors amounted to some sort of coercion. As a speaker in its own right, the government has the right and authority to condemn the actions of private actors. Courts must decide, then, when such speech, usually combined with some sort of regulatory action or threat thereof, crosses over into coercion.

The most recent, on-point case regarding jawboning is 2024’s National Rifle Association v. Vullo, in which the state of New York had pressured insurance companies that worked with the NRA to cut ties with the organization following a 2017 school shooting. The Court unanimously held that such efforts were a violation of the First Amendment and provided a clearer framework for assessing when unconstitutional jawboning had occurred.

 National Rifle Association v. Vullo

602 US _ (2024)

Facts: After the 2017 school shooting in Parkland, Florida, the National Rifle Association (NRA) faced substantial backlash in many parts of the country. The New York State Department of Financial Services (DFS)  had been investigating NRA-endorsed insurance companies that were not in compliance with New York law. After the shooting, the head of DFS met with insurance executives whose companies had been doing business with the NRA. She made clear that the department would be more interested in targeting potential violators if they publicly cut ties with the NRA and/or aided the state’s efforts against gun groups. This meeting was followed by a press release and social media output from New York’s governor, who supported these actions.

Question: Did New York’s pressure on regulated banks and insurance companies to dissociate with the NRA violate the First Amendment?

Vote: Yes (9-0)

For the Court: Justice Sotomayor

Concurring opinion: Justice Gorsuch (omitted)

Concurring opinion: Justice Jackson (omitted)

JUSTICE SOTOMAYOR delivered the opinion of the Court.

Six decades ago, this Court held that a government entity’s “threat of invoking legal sanctions and other means of coercion” against a third party “to achieve the suppression” of disfavored speech violates the First Amendment. Bantam Books, Inc. v. Sullivan (1963). Today, the Court reaffirms what it said then: Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors. Petitioner National Rifle Association (NRA) plausibly alleges that respondent Maria Vullo did just that. As superintendent of the New York Department of Financial Services, Vullo allegedly pressured regulated entities to help her stifle the NRA’s pro-gun advocacy by threatening enforcement actions against those entities that refused to disassociate from the NRA and other gun-promotion advocacy groups. Those allegations, if true, state a First Amendment claim.

I

A

…

The New York Department of Financial Services (DFS) oversees insurance companies and financial services institutions doing business in the State. DFS can initiate investigations and civil enforcement actions against regulated entities, and can refer potential criminal violations to the State’s attorney general for prosecution. The DFS-regulated entities in this case are insurers that had business relationships with the NRA.

Since 2000, the NRA has offered a variety of insurance programs as a benefit to its members. The NRA contracted with affiliates of Lockton Companies, LLC(Lockton), to administer the various policies of these affinity insurance programs, which Chubb Limited (Chubb) and Lloyd’s of London (Lloyd’s) would then underwrite…

In September 2017, a gun-control advocacy group contacted the New York County District Attorney’s office to tip them off to “compliance infirmities in Carry Guard.” That office then passed on the allegations to DFS. The next month, then-Superintendent of DFS Vullo began investigating Carry Guard, focusing on Chubb and Lockton. The investigation revealed at least two kinds of violations of New York law: that CarryGuard insured intentional criminal acts, and the NRA promoted CarryGuard without an insurance producer license…

In the midst of the investigation, tragedy struck Parkland, Florida. On February 14, 2018, a gunman opened fire at Marjory Stoneman Douglas High School, murdering 17 students and staff members. Following the shooting, the NRA and other gun-advocacy groups experienced “intense backlash” across the country. Major business institutions, including DFS-regulated entities, spoke out against the NRA, and some even cut ties with the organization… On February 25, 2018, Lockton’s chairman “placed a distraught telephone call to the NRA,” in which he privately shared that Lockton would sever all ties with the NRA to avoid “‘losing [its] license’ to do business in New York.” Lockton publicly announced its decision the next day. Following Lockton’s decision, the NRA’s corporate insurance carrier also severed ties with the organization and refused to renew coverage at any price. The NRA contends that Lockton and the corporate insurance carrier took these steps not because of the Parkland shooting but because they feared “reprisa[l]” from Vullo.

Around that time, Vullo also began to meet with executives at the insurance companies doing business with the NRA. On February 27, Vullo met with senior executives at Lloyd’s. There, speaking on behalf of DFS and then-Governor Andrew Cuomo, Vullo “presented [their] views on gun control and their desire to leverage their powers to combat the availability of firearms, including specifically by weakening the NRA.” She also “discussed an array of technical regulatory infractions plaguing the affinity-insurance marketplace” in New York. Vullo told the Lloyd’s executives “that DFS was less interested in pursuing the[se] infractions” unrelated to any NRA business “so long as Lloyd’s ceased providing insurance to gun groups, especially the NRA.” (alleging that Vullo made it clear to Lloyd’s that it “could avoid liability for infractions relating to other, similarly situated insurance policies, so long as it aided DFS’s campaign against gun groups”). Vullo and Lloyd’s struck a deal: Lloyd’s “would instruct its syndicates to cease underwriting firearm-related policies and would scale back its NRA-related business,” and “in exchange, DFS would focus its forthcoming affinity-insurance enforcement action solely on those syndicates which served the NRA, and ignore other syndicates writing similar policies.”

…

…  Vullo and Governor Cuomo issued a joint press release … The press release included a quote from Vullo  “‘urg[ing] all insurance companies and banks doing business in New York’ ” to join those “ ‘that have already discontinued their arrangements with the NRA.’” The press release cited Chubb’s decision to stop underwriting Carry Guard as an example to emulate. The next day, Cuomo tweeted: “‘The NRA is an extremist organization. I urge companies in New York State to revisit any ties they have to the NRA and consider their reputations, and responsibility to the public.’”

…

B

The NRA sued Cuomo, Vullo, and DFS. The only claims before the Court today are those against Vullo—namely, claims that Vullo violated the First Amendment by coercing DFS-regulated parties to punish or suppress “the NRA’s pro-Second Amendment viewpoint” and “core political speech.” The complaint asserts both censorship and retaliation First Amendment claims, which the parties and lower courts have analyzed together. Vullo moved to dismiss, arguing that the alleged conduct did not constitute impermissible coercion …

This Court granted certiorari on only the first question presented whether the complaint states a First Amendment claim against Vullo.

II

As discussed below, Vullo was free to criticize the NRA and pursue the conceded violations of New York insurance law. She could not wield her power, however, to threaten enforcement actions against DFS-regulated entities in order to punish or suppress the NRA’s gun-promotion advocacy. Because the complaint plausibly alleges that Vullo did just that, the Court holds that the NRA stated a First Amendment violation.

A

At the heart of the First Amendment’s Free Speech Clause is the recognition that viewpoint discrimination is uniquely harmful to a free and democratic society. The Clause prohibits government entities and actors from “abridging the freedom of speech.” When government officials are “engaging in their own expressive conduct,” though, “the Free Speech Clause has no application.” The government can “‘say what it wishes’” and “select the views that it wants to express.” That makes sense; the government could barely function otherwise. “When a government entity embarks on a course of action, it necessarily takes a particular viewpoint and rejects others,” and thus does not need to “maintain viewpoint-neutrality when its officers and employees speak about that venture.”

A government official can share her views freely and criticize particular beliefs, and she can do so forcefully in the hopes of persuading others to follow her lead. In doing so, she can rely on the merits and force of her ideas, the strength of her convictions, and her ability to inspire others. What she cannot do, however, is use the power of the State to punish or suppress disfavored expression.

In Bantam Books, this Court explored the distinction between permissible attempts to persuade and impermissible attempts to coerce. There, a state commission used its power to investigate and recommend criminal prosecution to censor publications that, in its view, were “‘objectionable’” because they threatened “youthful morals.” The commission sent official notices to a distributor for blacklisted publications that highlighted the commission’s “duty to recommend to the Attorney General” violations of the State’s obscenity laws. The notices also informed the distributor that the lists of blacklisted publications “were circulated to local police departments,” and that the distributor’s cooperation in removing the publications from the shelves would “‘eliminate the necessity’” of any referral for prosecution. A local police officer also conducted follow-up visits to ensure compliance. In response, the distributor took “steps to stop further circulation of copies of the listed publications” out of fear of facing “‘a court action.’”

The publishers of the blacklisted publications sued the commission, alleging that this scheme of informal censorship violated their First Amendment rights. The commission responded that “it d[id] not regulate or suppress obscenity but simply exhort[ed] booksellers and advise[d] them of their legal rights.” This Court sided with the publishers, holding that the commission violated their free-speech rights by coercing the distributor …

The Court explained that the First Amendment prohibits government officials from relying on the “threat of invoking legal sanctions and other means of coercion . . . to achieve the suppression” of disfavored speech. Although the commission lacked the “power to apply formal legal sanctions,” the distributor “reasonably understood” the commission to threaten adverse action, and thus the distributor’s “compliance with the [c]ommission’s directives was not voluntary.” To reach this conclusion, the Court considered things like: the commission’s coordination with law enforcement and its authority to refer matters for prosecution; the notices themselves, which were “phrased virtually as orders” containing “thinly veiled threats to institute criminal proceedings” if the distributor did not come around; and the distributor’s reaction to the notices and follow-up visits…

Ultimately, Bantam Books stands for the principle that a government official cannot do indirectly what she is barred from doing directly: A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf…

B

… Accepting the well-pleaded factual allegations in the complaint as true, the NRA plausibly alleged that Vullo violated the First Amendment by coercing DFS-regulated entities into disassociating with the NRA in order to punish or suppress the NRA’s gun-promotion advocacy.

Consider first Vullo’s authority, which serves as a backdrop to the NRA’s allegations of coercion. The power that a government official wields, while certainly not dispositive, is relevant to the objective inquiry of whether a reasonable person would perceive the official’s communication as coercive. Generally speaking, the greater and more direct the government official’s authority, the less likely a person will feel free to disregard a directive from the official. For example, imagine a local affinity group in New York that receives a strongly worded letter. One would reasonably expect that organization to react differently if the letter came from, say, the U. S. Attorney for the Southern District of New York than if it came from an out-of-state school board.

As DFS superintendent, Vullo had direct regulatory and enforcement authority over all insurance companies and financial service institutions doing business in New York. Just like the commission in Bantam Books, Vullo could initiate investigations and refer cases for prosecution. Indeed, she could do much more than that. Vullo also had the power to notice civil charges and, as this case shows, enter into consent decrees that impose significant monetary penalties…

… Vullo allegedly said she would be “less interested in pursuing the[se] infractions . . . so long as Lloyd’s ceased providing insurance to gun groups, especially the NRA.” Vullo therefore wanted Lloyd’s to disassociate from all gun groups, although there was no indication that such groups had unlawful insurance policies similar to the NRA’s. Vullo also told the Lloyd’s executives she would “focus” her enforcement actions “solely” on the syndicates with ties to the NRA, “and ignore other syndicates writing similar policies.” The message was therefore loud and clear: Lloyd’s “could avoid liability for [unrelated] infractions” if it “aided DFS’s campaign against gun groups” by terminating its business relationships with them.

As alleged, Vullo’s communications with Lloyd’s can be reasonably understood as a threat or an inducement. Either of those can be coercive…

C

… this Court cannot simply credit Vullo’s assertion that “pursuing conceded violations of the law,” is an “‘obvious alternative explanation’” for her actions that defeats the plausibility of any coercive threat raising First Amendment concerns. Of course, discovery in this case might show that the allegations of coercion are false, or that certain actions should be understood differently in light of newly disclosed evidence. At this stage, though, the Court must assume the well-pleaded factual allegations in the complaint are true.

Moreover, the conceded illegality of the NRA-endorsed insurance programs does not insulate Vullo from First Amendment scrutiny under the Bantam Books framework. Indeed, the commission in that case targeted the distribution and display of material that, in its view, violated the State’s obscenity laws. Nothing in that case turned on the distributor’s compliance with state law. On the contrary, Bantam Books held that the commission violated the First Amendment by invoking legal sanctions to suppress disfavored publications, some of which may or may not contain protected speech (i.e., non-obscene material). Here, too, although Vullo can pursue violations of state insurance law, she cannot do so in order to punish or suppress the NRA’s protected expression. So, the contention that the NRA and the insurers violated New York law does not excuse Vullo from allegedly employing coercive threats to stifle gun-promotion advocacy.

Vullo next argues that this case does not involve unconstitutional coercion because her challenged actions in fact targeted business practices and relationships, which qualify as “non-expressive activity.” The argument is misplaced. That Vullo “regulate[d]” business activities stemming from the NRA’s “relationships with insurers and banks,” does not change the allegations that her actions were aimed at punishing or suppressing speech… One can reasonably infer from the complaint that Vullo coerced DFS-regulated entities to cut their ties with the NRA in order to stifle the NRA’s gun-promotion advocacy and advance her views on gun control…

Lastly, Vullo falls back on the argument that a ruling in the NRA’s favor would interfere with the government’s ability to function properly. She claims that the NRA’s position, if accepted, would stifle government speech and hamper legitimate enforcement efforts. This argument falls flat for the simple reason that it requires the Court to accept Vullo’s limited reading of the complaint. The Court does not break new ground in deciding this case…

III

The NRA’s allegations, if true, highlight the constitutional concerns with the kind of intermediary strategy that Vullo purportedly adopted to target the NRA’s advocacy. Such a strategy allows government officials to “expand their regulatory jurisdiction to suppress the speech of organizations that they have no direct control over.” …

Nothing in this case gives advocacy groups like the NRA a “right to absolute immunity from [government] investigation,” or a “right to disregard [state or federal] laws.” Similarly, nothing here prevents government officials from forcefully condemning views with which they disagree. For those permissible actions, the Constitution “relies first and foremost on the ballot box, not on rules against viewpoint discrimination, to check the government when it speaks.” Yet where, as here, a government official makes coercive threats in a private meeting behind closed doors, 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…