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NRA v. Vullo: Supreme Court Aligns with NetChoice’s Arguments, Bars Direct & Indirect Speech Censorship

In a resounding victory for free speech, and consistent with NetChoice’s arguments, the Supreme Court today vacated the Second Circuit’s decision in National Rifle Association v. Vullo and reaffirmed that the government cannot coerce private parties to suppress viewpoints it disfavors. In other words, the First Amendment prohibits the government from doing indirectly what it cannot do directly. 

The Court’s unanimous opinion, authored by Justice Sotomayor, holds that the NRA plausibly alleged unconstitutional “jawboning.” In short, the NRA alleged that the former Superintendent of the New York Department of Financial Services, Maria Vullo, violated the First Amendment by threatening regulated entities with adverse consequences if they did not cut ties with the NRA and other gun-promotion advocacy groups. 

The Court made clear that while government officials are free to criticize particular views and vigorously enforce the law, they cannot wield their power to punish disfavored speech or politically unpopular speakers—either directly or through private intermediaries.

This decision mirrors arguments NetChoice advanced in an amicus brief filed along with CCIA, Chamber of Progress, and the Cato Institute in the related case Murthy v. Missouri. As we explained in our brief:

First, the government cannot bypass the First Amendment’s prohibition against laws compelling private speech by seeking to compel speech through informal and indirect means. The Court recently reaffirmed that “the government may not compel a person to speak its own preferred messages” or “force an individual to include other ideas with his own speech that he would prefer not to include.” 303 Creative v. Elenis, 600 U.S. 570, 586-87 (2023). But these protections would be meaningless if governments could compel private speech—or impede content moderation—by informal or indirect cajoling or coercion. A clear rule is needed to prevent such a loophole. 

Second, irrespective of whether petitioners are found to have unconstitutionally compelled social media services to censor respondents’ speech, the Court should make clear that those digital services themselves are not state actors and may not be held liable for the government’s actions. The First Amendment “prohibits only governmental abridgment of speech.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019).

Indeed, jawboning inflicts a First Amendment injury on the [private entities] by interfering with their rights to editorial discretion. Any rule that suggests litigants may seek recourse from the [private entities] would mean they get hit coming and going; such lawsuits, and potential liability, would compound the [private entities’] First Amendment injury. And such a rule would diminish focus on government officials whose conduct may have violated the First Amendment, which is where the focus belongs.

We urged the Court to follow the framework of Bantam Books v. Sullivan, not Blum v. Yaretsky, in analyzing jawboning First Amendment claims. The Supreme Court agreed. Bantam Books involved a similar fact pattern of government officials pressuring the distributors of certain publications to suppress speech they disfavored. The Court there held that this informal censorship scheme in Vullo violated the First Amendment, even though the officials themselves lacked formal power to directly censor the speech.

Blum, by contrast, addressed a different question: when does a private party’s conduct qualify as “state action” enough to trigger constitutional scrutiny? Some lower courts had wrongly fixated on Blum’s “substantial encouragement” test in coerced censorship cases. But as we argued, and the Court agreed, Blum is a poor fit for claims that the government has violated the First Amendment by jawboning a private intermediary to suppress speech. The proper test looks to the government’s own conduct, not the private party’s.

The Vullo decision reaffirms the critical First Amendment principle from Bantam Books that the government cannot “achieve the suppression” of disfavored speech through the “threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation.” This applies regardless of whether the government acts through direct regulation or informal jawboning of intermediaries.

The Vullo Court’s embrace of Bantam Books over Blum has important doctrinal implications. For a First Amendment coerced-censorship claim, a plaintiff need not show that the government’s pressure campaign succeeded in turning the targeted private entity into a state actor. The plaintiff need only plausibly allege government conduct that, in context, conveys a coercive threat, inducement, or encouragement to suppress disfavored speech. The ultimate question is whether the government abused its power to identify and punish a private party as a means to an unconstitutional end.

Justice Jackson’s concurrence underscores that unlawful coercion is a means to, but analytically distinct from, a First Amendment violation. Not all government jawboning automatically translates into unconstitutional injury. Courts must still assess how the coercive actions violate First Amendment rights. Where, as here, the coercion targets an entity’s association with a speaker, rather than the speaker’s expression itself, a retaliation framework focused on causation and motive may be more appropriate than a prior-restraint theory. Justice Jackson cautions that future litigants should carefully consider which First Amendment doctrine best fits the facts.

Justice Gorsuch’s concurrence also provides valuable insight. He joins the Court’s opinion in full but writes separately to stress that the multi-factor tests some lower courts have applied in coerced-censorship cases should not be treated as rigid requirements. As Justice Gorsuch explains, these “guideposts” may sometimes help determine if the government has crossed the line from persuasion to coercion, but context is key. The critical question is always whether, considering the full picture, the government’s conduct “could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff’s speech.” Courts must not lose the forest for the trees by mechanically checking boxes. Gorsuch’s admonition should help keep the doctrine properly focused on the totality of the government’s actions.

The decision also leaves room for the government to engage in non-coercive outreach to private entities about content-moderation policies and public safety. The Court acknowledges that “forcefully condemning views with which [officials] disagree” does not alone violate the First Amendment—a point NetChoice strongly agrees with. The government’s own speech—absent coercion—raises no constitutional concerns. But the Court recognizes that behind-closed-doors interactions can enable coercion that escapes public accountability. That’s why we still need robust political and judicial checks.

While acknowledging that not all government interactions with private entities about editorial decisions constitute coercion, the Court stressed that context matters. Here, Vullo allegedly leveraged her formidable regulatory and enforcement powers in meetings and official guidance documents to pressure financial institutions to blacklist the NRA, lest they face costly investigations and penalties for unrelated infractions. If true, these strong-arm tactics would plainly violate the First Amendment.

Importantly, the Court also indicated that the financial institutions themselves, as the targets of this governmental coercion, suffered a First Amendment injury through this interference with their editorial autonomy. This, too, tracks our argument in Murthy: Just as users (or customers like the NRA) suffer First Amendment violations, so too do the intermediary entities caught in the middle. 

The Court left no doubt that in such cases, the proper target for a First Amendment lawsuit is the offending government actor, not the intimidated intermediary. This will help ensure that government officials face accountability for unlawful censorship campaigns.

For those fighting in the trenches to defend free speech online, the Vullo decision provides crucial reinforcement that officials cannot launder censorship through “friendly persuasion” of tech companies and other intermediaries. With states like Florida and Texas passing so-called “anti-censorship” laws that actually require online services to disseminate government-favored viewpoints, it’s more critical than ever that courts shut down attempts to circumvent the First Amendment and compel private editorial decisions.

At NetChoice, we’re actively litigating against several such laws, including the cases currently pending at the Supreme Court, NetChoice & CCIA v. Moody and NetChoice & CCIA v. Paxton. The Vullo decision should send a strong signal in those cases, too. Government efforts to dictate editorial policies—whether through formal statutes or backroom pressure—are unconstitutional. Period.

Today’s decision is a validation of our ongoing efforts to protect free speech and prevent governmental overreach. We have long argued that the government must not be allowed to pressure digital services and websites into censoring speech, and the Vullo decision aligns with this view. This ruling will bolster our work in advocating for policies and legal standards that protect the rights of internet users to freely express their views without fear of governmental retribution.

The fight continues, but today, the First Amendment notched an important win.