Free Speech Arguments

Latest Episodes:

Episode 2: NRA v. Vullo Mar 18, 2024

Show notes

National Rifle Association of America v. Maria T. Vullo, argued before the Supreme Court of the United States on March 18, 2024

From the Petition for a Writ of Certiorari:

Bantam Books v. Sullivan held that a state commission with no formal regulatory power violated the First Amendment when it “deliberately set out to achieve the suppression of publications” through “informal sanctions,” including the “threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation.” Respondent here, wielding enormous regulatory power as the head of New York’s Department of Financial Services (“DFS”), applied similar pressure tactics—including backchannel threats, ominous guidance letters, and selective enforcement of regulatory infractions—to induce banks and insurance companies to avoid doing business with Petitioner, a gun rights advocacy group.

Respondent targeted Petitioner explicitly based on its Second Amendment advocacy, which DFS’s official regulatory guidance deemed a “reputational risk” to any financial institution serving the NRA. The Second Circuit held such conduct permissible as a matter of law, reasoning that “this age of enhanced corporate social responsibility” justifies regulatory concern about “general backlash” against a customer’s political speech.

Question Presented:

Does the First Amendment allow a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government's own hostility to the speaker's viewpoint or (b) a perceived "general backlash" against the speaker's advocacy?

Resources:

NRA v. Vullo docket
Institute for Free Speech blog by Barnaby Zall - “Does the First Amendment Allow a Government Official to Make Threats Like a Mob Boss?”

Time Stamps:

(00:00:00) ACLU Legal Director David Cole, on behalf of the NRA

(00:36:00) Ephraim McDowell, Assistant to the Solicitor General

(00:48:00) Neal Kumar Katyal, Counsel of Record for Maria Vullo

(01:12:00) Rebuttal by David Cole

The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. Learn more on our website: ⁠www.ifs.org

Episode 1: Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton Feb 26, 2024

Show notes

Argued before the Supreme Court of the United States on February 26, 2024.

The petition granted was "limited to Questions 1 and 2 presented by the Solicitor General in her brief for the United States as amicus curiae."

From the Brief for the United States as Amicus Curiae

These cases concern laws enacted by Florida and Texas to regulate major social-media platforms like Facebook, YouTube, and X (formerly known as Twitter). The relevant provisions of the laws differ in some respects, but both laws (1) restrict covered platforms’ ability to engage in content moderation by removing, editing, or arranging the user-generated content presented on their websites, and (2) require covered platforms to provide individualized explanations for certain forms of content moderation. The questions presented are:

Whether the laws’ content-moderation restrictions comply with the First Amendment.
Whether the laws’ individualized-explanation requirements comply with the First Amendment.

Resources:

Time Stamps:

(00:00:00) Moody v. NetChoice, LLC Begins

Henry Charles Whitaker, Counsel of Record, Florida Office of the Attorney General

(00:00:55) Paul D. Clement, Counsel of Record for NetChoice, LLC

(01:43:00) Elizabeth Prelogar, Solicitor General of the United States

(02:20:15) Henry Charles Whitaker Rebuttal

(02:23:00) NetChoice, LLC v. Paxton Begins
Paul D. Clement, Counsel of Record for NetChoice, LLC

(02:53:47) Elizabeth Prelogar, Solicitor General of the United States

(03:03:37) Aaron Lloyd Nielson, Counsel of Record, Office of the Texas Attorney General

(03:40:09) Paul D. Clement Rebuttal