Jawboning Free Speech: State Coercion Finds Limits at Supreme Court

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[00:00:00] Joe Selvaggi: This is Hubwonk. I’m Joe Selvaggi. Welcome to Hubwonk, a podcast of Pioneer Institute, a think tank in Boston. While government officials are at liberty to criticize speech and speakers with which they disagree, to what degree are they permitted to use the power of their office to try to shut that speech down?

[00:00:19] This question lies at the core of the recently decided Supreme Court case, National Rifle Association v. Maria Vullo, which asked the nation’s highest court to determine whether the former superintendent of the New York Department of Financial Services, Ms. Vullo, was guilty. Use the threat of regulatory enforcement to induce affiliated insurance firms to end their relationship with the NRA.

[00:00:41] Ms. Vullo’s defense granted that while the threat of regulation solely for the purpose of silencing speech is unconstitutional, her actions to discourage the provision of insurance products to the NRA fell within her department’s regulatory purview. But the court found the NRA’s First Amendment claim more persuasive, in no small part owing to numerous examples of explicit statements, both public and private, by New York’s political leadership to intentionally target the NRA for the content of its speech.

[00:01:09] The court, in the 9-0 decision written by Justice Sotomayor, found that New York had indeed used its power as regulator to silence speech it did not favor. Americans’ this case tell us about the Constitution’s power to protect Americans free speech rights against the power of the state? And how might this unanimous decision to side with the NRA against a state government challenge the public’s perception of a court hopelessly divided along ideological lines?

[00:01:38] My guest today is Tommy Berry. legal fellow in the Cato Institute’s Robert A. Levy Center for Constitutional Studies, and editor in chief of the Cato Supreme Court Review. Mr. Berry will share with us the facts and arguments in the NRA v. Vullo case and discuss the implications of this unanimous decision on the limits of government officials to silent speech with which they disagree.

[00:01:59] We will also examine the way in which this majority decision reflects on the court as an institution. And its ability to rely on principles over partisanship. When I return, I’ll be joined by legal fellow, Tommy Berry. Okay, we’re back. This is Hubwonk. I’m Joe Selvaggi, and I’m now pleased to be joined by listener favorite, constitutional scholar from Cato Institute, Tommy Berry. Welcome back to Hubwonk, Tommy.

[00:02:25] Thomas Berry: Thank you for having me. Always glad to be here.

[00:02:27] Joe Selvaggi: Well, I wanted to have you on the show to discuss a recent decision handed down by the Supreme Court in the case of the NRA, National Rifle Association, versus Vullo. I wanted to talk about this case for several reasons. One is, of course, I want our listeners to understand where our highest court stands with regard to the government’s right to perhaps silence or diminish, speech among us Americans.

[00:02:51] I also want to talk about it in the context of many of the free speech cases that are floating around in the, on the docket and, see how this case either fits in or foreshadows future decisions about how the court sees the government’s prerogative to silence us all. So let’s start at the beginning with the particular, this Vullo case, NRA v. Vullo. and, we’ll start at the highest level. I’ll just give background for our listeners. We’ve got the NRA operating in the state of New York. We’ve got a top regulator, regulating finance and insurance. getting involved and, the NRA doesn’t, like, let’s say, what’s going on and files a lawsuit. So why don’t you give our listeners a sense of what this case is all about?

[00:03:31] Thomas Berry: Sure. So, this stems from a very powerful New York agency called the Department of Financial Services. Essentially, this agency has a significant authority to determine who is allowed to be in the insurance business in New York State and, other related businesses related to finance, financial services, banking, that, that type of thing and it enforces, this agency enforces the various New York state laws, saying what type of practices are legal and permissible for insurance companies, and potentially finding and enforcing, regulations or violations of those laws that could, put an insurance company out of business, at least in New York State and, potentially the whole country based on the consequences of that, given the importance of New York State to the entire nation’s, business community and in this situation, the National Rifle Association had for many years had relationships with various insurance companies where they would sponsor Insurance products for NRA members related to gun ownership. So, these would be, essentially, programs that would allow a gun owner to have insurance to cover potential damages, from accidents or other incidents related to their gun ownership.

[00:04:46] And what the NRA Director of DFS, Ms. Vullo, who is named party, the name defendant in this case, did, or at least what the NRA alleges she did, is that she, met with and sent several communications, both public and private, to, the insurance companies that were doing business with the NRA, and especially Lloyd’s of London, which was the parent, to all of these smaller insurance. And ensuring all of them and essentially said, look, if you don’t cut your ties with the NRA, we’re going to punish you for every infraction we can find.

[00:05:21] Joe Selvaggi: So, this is an interesting case. We’re going to get into the nitty gritty of the merit of the NRA’s argument and the defense. This is all predicated, we know from precedent, that it’s not okay for the government to use its power to essentially silence speech. The precedent here is more than six decades old, as it was mentioned in the arguments and in the decision. It’s a Bantam Books case. Describe in broad terms how this one sort of case stands out as protection of individual organizations against Let’s say government power, government coercion. How, what’s the law of the land up to this point?

[00:05:57] Thomas Berry: Sure. So, the black letter easy first amendment case is when the government uses its hard power to suppress speech, when the government explicitly punishes people for speaking. or speaking or spreading, selling a book or something like that. Bantam Books is an interesting case about what about government soft power, where there’s no explicit use of government force, but there’s enough implied government threat to achieve the same outcome.

[00:06:24] So in Bantam Books, Rhode Island had an agency That was enforcing, it was, essentially it was trying to prevent obscenity from getting in the hands of minors, but it didn’t have a lot of hard power. So, it couldn’t actually, because it would be unconstitutional, it couldn’t actually ban books unless they met the high bar, high constitutional bar of obscenity, which is essentially just hardcore pornography.

[00:06:47] So instead of banning these books, what this agency would do is it would go to bookstores, look for books it didn’t like, it didn’t think were worth spreading in those bookstores, and then send them a letter on official government letterhead saying, we have found these various books here. That, in our view, are contrary to, the mission of our agency, potentially violations of such and such law.

[00:07:12] We appreciate and advance your cooperation in no longer selling these books and the mission. Book publishers essentially took a claim to the Supreme Court saying, look, in effect, what you’re doing has exactly the same outcome as if you had just gone to the bookstores and explicitly said, we are fining you for every time you sell these books, because anyone who gets a letter like this is not going to risk the danger of getting on the bad side of the government, given all of the power that government can potentially bring to bear. And the Supreme Court agreed. The Supreme Court said, no. Look, if a communication crosses the line to where a reasonable recipient would see it as a threat of uniquely governmental coercion, that violates the First Amendment just as much as if they had explicitly fined or jailed you, for doing the thing that they were telling you not to do.

[00:08:05] Joe Selvaggi: This sounds like, the movies where you see the mafia saying, do what we say or something bad might happen to that very nice company you have there. I’m curious though, clearly in the case of the NRA v. Vullo, the government isn’t actually bringing its power to bear against the NRA directly. It’s doing it through a third party. These insurance companies that the NRA rely on for their work, does that matter? again, if there’s an intermediary, whether the government is actually applying directly to NRA, it’s power or not.

[00:08:35] Thomas Berry: It does matter. It does create a twist and I think makes it slightly different from Bantam Books. So there was an intermediary in Bantam Books as well. There was bookstores. And the bookstores were not actually the named parties in Bantam Books. It was, as the name implies, Bantam Books was a publisher. So, in some ways it was similar in that the publishers were saying the pressure you’re putting on the bookstores is causing them not to sell the books we publish you and therefore you’re stifling our own expression you’re stopping us from, distributing the books that we would otherwise be free to distribute.

[00:09:09] But the intermediary here as you say is different and a little more abstracted away from speech because these insurance companies are not helping the NRA spread its message. They’re not like couriers or publishers or sellers of the NRA’s speech or pamphlets or, conventions. They’re just helping in the background the NRA continue to function, as, as a company and do the activities it wants to do.

[00:09:39] So I think, a second, First Amendment doctrine comes into play here and is in the mix, which is called First Amendment retaliation, which is where you have a scenario where a law ostensibly unrelated to speech is on the books, but the government is only enforcing it against people who happen to also be speaking in a way that the government doesn’t like.

[00:10:00] And that can be a First Amendment violation, that selective use of a law to essentially punish people for the speech that they’re engaging in. So, I think here you have both coercion, you have both abandoned books, pressure on an intermediary. And then the specific mechanism by which that pressure was suppressing speech was related to retaliation, in the sense that, because the NRA was saying things the government didn’t like, it was now losing access to the insurers it wanted to do business with because of this, coercive communication, coercive pressure on the insurers.

[00:10:37] Joe Selvaggi: I had not known this. I think I knew it, but I got reacquainted with the word jawboning. Can you, is that a legal term? And for our listeners, just explain it, in just plain English. What does this term mean when used in this kind of a First Amendment case?

[00:10:52] Thomas Berry: So, this is a very, literary, this comes from an era perhaps when, somewhat more obscure biblical references were more common in, in mainstream American political life.

[00:11:01] I think it was born in the 1970s. it comes from a biblical passage that says the famous Samson, the strong man, killed a thousand, men with the jawbone of a donkey. And so, the analogy is that jawboning. is using a soft power, using a tool that seems potentially non-threatening, slighter, not obviously powerful, using a small tool to have a big effect.

[00:11:29] So instead of the hard power of a threatened jail sentence or a threatened fine, it’s the soft power of the letter, the, It’s a harshly worded letter on official government letterhead. So that’s where the term job owning came from. It’s an analogy to that seemingly innocuous tool that can have a very big effect because of who’s wielding it, in this case, the government.

[00:11:54] Joe Selvaggi: So, this brings me to my next question, which is, there seems to be a clear line between persuasion and coercion. Now we’ve got a regulatory agency that regulates insurance companies. If she gets up there and says to the insurance companies, look, it’s maybe, bad for your look, bad for your firm, bad for your reputation that you are insuring the NRA, they promote guns, bad things happen with guns, it would be really good for you, Mr. Insurance Company, if you stopped Aligning yourself or supporting or working with the NRA, if that is all the regulator did was merely to remind or point out the reputational risk of affiliating with the NRA, would that be legal? And where, again, if I’m assuming the answer is yes, where does that, let’s say, informational statement by a regulator cross from persuasion, which is, please don’t work with the NRA, to coercion, which is, If you do this, you’re in big trouble. Where’s that line?

[00:12:52] Thomas Berry: That’s the rub. That’s the hardest part of these cases. And that’s what it’s going to come down to. Whether that line was crossed is what’s going to determine the outcome of any potential job owning case, job owning claim. The Supreme Court mentioned several factors that you would look at in the communications.

[00:13:09] not necessarily exclusive factors, but at least ones Get you on the right track. So, they said, you look at the word choice and tone. You look at how much regulatory authority this person speaking actually have? Could they put you out of business? Could they enforce a law that cuts off your ability to function?

[00:13:28] Whether the speech was perceived as a threat. So how did the listeners react? Did they immediately cower in fear, or did they just take it under advisement, but act as if they reasonably could ignore it? and then. did the speech explicitly refer to adverse consequences? So those are not exclusive, but those will often get you most of the way towards, drawing that line between coercion and mere persuasion.

[00:13:52] One just rough rule of thumb that a lot of courts look at is, would anyone, has, in fact, anyone who received similar letters or similar communications ignored them? Said, I appreciate your advice, but we’re going to stay the course. So if, in this situation, Vullo had sent her letters to five or six different insurance companies, and maybe half decided not to, NRA, but half stuck with it, and then nothing happened, that would be a much harder case for the other three to, make for coercion because three ignored it and nothing bad happened. In this situation, allegedly the facts as we take them now where we read them with in the best light of the petitioners is that every single company that received these letters pretty very quickly stopped doing business with the NRA and reacted as if they really did not have a choice.

[00:14:43] So while that’s not a hundred percent categorical, nothing is. That’s very strong evidence, that these people who knew well how much power Vullo had, and how she communicated with people she was about to bring the hammer down, they all immediately took action.

[00:14:59] Joe Selvaggi: But, well, how, okay, but let me push back. I’m going to play devil’s advocate and say, okay, I’m a regulator. I don’t like guns. I don’t like the NRA. I hate them, right? I’ve said it in public. That could I, I don’t like guns. And I send this letter to the, the, to the insurance companies where, you know, how can you threat, prove a threat of action if you merely, I’m a regulator who doesn’t like guns.

[00:15:22] please don’t work with gun companies. how, where is the actual threat? Is there a smoking gun that says, quid poke quo, or, if you don’t do the, if then you know, this is the hammer that’s going to come down on you.

[00:15:34] Thomas Berry: In this case, they alleged that there was a smoking gun, both in private communications and even in public communications that Ms.Vullo, publicly announced. So according to the NRA, Vullo brought in a variety of insurance law violations, to the attention of Lloyds and essentially said, “I will, if and only if you disassociate from the NRA, we’re going to sue.” Let these slide. And they also allege, sometimes in private communications, so we don’t know that these are true yet, these would come out potentially in discovery later on down the line, that she was going to, she explicitly said, I’m only focused on violations by people doing business with the NRA.

[00:16:12] I’m going to ignore her. other insurance companies that have the same kind of potential violation. And so, one thing to stress is that these may well have been real violations. Part of the prob what retaliation claims recognize is that in a world of overregulation, show me the man and I’ll find you the crime.

[00:16:31] This might have been some sort of ticky tack, failure to comply with a minor issue that every insurer has in New York State. If she’s only bringing it to the attention of the people doing business with the NRA, that’s, and explicitly telling them, I’m going to keep pushing this until you cut ties with the NRA, that’s a pretty explicit, if then scenario where the, they know exactly what they have to do, to avoid potential enforcement.

[00:16:58] Joe Selvaggi: This seems a familiar trick with the government, make everything a little bit illegal and apply the law only to those parties you don’t favor. But let’s, let me again play devil’s advocate and in listening to Ms. Vula’s defense, what they are alleging is that they’re, insurance regulators, what they were regulating is illegal insurance being provided by the NRA to these, to the NRA by these firms.

[00:17:21] In other words, they’re saying, look, we’re not selectively targeting NRA. They’re violating laws that were tasked with enforcing. So, you can’t tell us that we’re jawboning the NRA. We’re just doing our job.

[00:17:35] Thomas Berry: Yeah. And I think the posture of this case, the procedural posture really matters here.

[00:17:40] So one, one thing for readers to, to keep in mind, that’s not always obvious, especially for non-lawyers is that at various stages of a case, judges have to make different presumptions. And even though we’re all the way up at the Supreme Court, we’re at the very beginning of this case, procedurally, we haven’t yet had, Fact finding, what’s called discovery, where you look for evidence and the other party, you ask them to provide you with documents and things like that, we haven’t even reached that stage yet.

[00:18:07] The Second Circuit, the court below the Supreme Court, said even if everything the NRA said were true, they still would not have articulated a First Amendment claim. So, what the Supreme Court did, and one of the reasons this case was unanimous, was it said right at the top, we’re assuming that everything that the NRA has pled is true, including the selective enforcement.

[00:18:30] And if that is in fact the case, then we’re They’ve made a plausible First Amendment claim that would violate the First Amendment. That’s different. What has not yet happened is a fact finder saying, yes, it is indeed true based on all of the evidence that may well happen down the line. So, a lot of the NRA’s pushback, I think, was really just at the wrong stage of this case.

[00:18:51] That, that might be plausible. That might be their best defense later on in this case, to argue the facts, but it didn’t work at this, to rebut against a dismissal before evidence has been taken, because for that, you have to meet the high bar of saying, even if everything the NRA alleges were true, we still would not have violated the First Amendment.

[00:19:12] Joe Selvaggi: So, again, in listening to Ms. Vullo’s defense, their claim is, what the NRA has done is said, Look, we get it, you don’t like us, you’re selectively enforcing this, or you’re not, you’re enforcing, whatever regulation you want, but ultimately, if the court finds with Ms. Vullo that merely alleging an infringement of First Amendment rights, gets the regulator off your back.

[00:19:35] In other words, all I have to say is this has the effect of violating my First Amendment rights. It may be valid, you may be doing your job, but you know what, it’s diminishing my right to speak. wouldn’t this be a blanket defense for anybody who didn’t like some sort of regulation that said, okay, if you enforce this, I’m going to make a claim of First Amendment violation here, because I don’t like the regulation. What would you say to that?

[00:19:57] Thomas Berry: I don’t think people should be too concerned, because selectivity is absolutely crucial. That’s absolutely necessary here. So, if Ms. Vullo, if the allegations were that she, diligently was looking for every little ticky tack, violation on the books, and was even handedly bringing it to the attention of every insurer in New York who had violated whatever rule she, she found, without discriminating based on the, Whether they’re on the left or the right, pro-gun, anti-gun, whatever, none of them would then have a First Amendment claim.

[00:20:29] So this is a situation where, under enforcement, the government, using its power selectively can actually be worse than using it more broadly. So, if it had, if, in other words, if Ms. Willow had sent letters to every NRA, insurer, exactly as she did, But also sent letters to every non NRA insurer, they would not have a First Amendment claim because then there’s no connection between the violation, the threat, the coercion, and the, and the advocacy they’re engaging in.

[00:21:00] And that’s actually the exact point that Justice Jackson made in a solo concurrence, where she said, yes, there’s coercion here, but that’s not the end of the analysis. You have to show there’s coercion and then ask, okay, If indeed there was coercion, if indeed we treat this just as if she had brought the hammer down and actually punished them, you then ask the second question of would that violate the First Amendment and why? And in this case the why is because of the selectivity that’s putting a thumb on the scale and saying you can get out of enforcement by no longer being pro-gun.

[00:21:34] Joe Selvaggi: So, okay, that explains it. So, let’s say, okay, now we have to, allow the suit to go forward, but per this decision, Ms. Vullo is standing, and she’s no longer the superintendent of this regulatory agency, but I guess she stands there as a defendant could the government, I’m going to introduce a complex concept, we don’t have to go too deep on it, but, qualified immunity is it’s a broad term that says, okay, I’m a government official, I’m doing my job. You can’t really prosecute me for mistakes or what I’ve done because I’m doing my job.

[00:22:04] I have to be able to do my job. I can’t be worried about lawsuits every day of every week for everyone I’ve made unhappy. Might Ms. Vullo be able to deflect all of this with just saying, you can’t sue me, I’m the government.

[00:22:17] Thomas Berry: She might. She raised qualified immunity in the Second Circuit, and the Second Circuit did find that she would have qualified immunity even if she violated the First Amendment.

[00:22:27] The Supreme Court explicitly left that question open. They said, we’re going to leave that for the Second Circuit to reevaluate. Now that we’ve given them the proper test and said this would be a First Amendment claim, in that situation, you might rethink what you said about qualified immunity.

[00:22:42] The key for qualified immunity is, was the law clearly established that this was a violation? In other words, was there already either a Supreme Court precedent or a Second Circuit precedent saying that doing this activity, doing what she did, would violate the First Amendment rights. There are a lot of fights overqualified immunity, and the hardest part is how specific do you get, and judges are inconsistent about this.

[00:23:07] So some judges will say, oh, yes, we had a case about, tasing someone for no reason on a Wednesday, but this police officer tased someone for no reason on a Tuesday, so that was not clearly established. We’ve never had a case like that before. you can distinguish. prior precedents, as much as you like, depending on how thinly you slice the facts.

[00:23:27] So a more sympathetic judge to Ms. Vullo would say, we’ve never had a case about, job owning, gun advocacy, or at least job owning an advocacy organization through select, alleged selective enforcement of insurance, regulations. a judge More inclined, less inclined to give agencies the benefit of the doubt would say no, we had broad precedents like Bantam Books and some job owning cases at the Second Circuit that set out this test of like the multi factors, that would cause something to cross the line to coercion, and a reasonable, government official wouldn’t know that what they did would.

[00:24:03] Failed that test. What they did cross the line to coercion and selective enforcement. So that’s going to be the fight going forward, is even if this violated the First Amendment, would a reasonable person in Ms. Volo’s case, who knew all of the prior First Amendment precedents, known that it was, she was violating the First Amendment?

[00:24:22] Joe Selvaggi: That’s interesting. I also want to bring up, this is I guess an inside baseball that I’ve, from studying this as often as I do, I’ve come to understand a little better. This case is between a, the NRA, which is a private sort of, affinity group, advocacy group, and the state of New York, its regulators, The federal government stepped in, in the solicitor general role. They, the solicitor general represents the interests of the United States government. They joined with the NRA, which I find extraordinary, defending the NRA in this particular case. Can you explain the significance of the SG, our government, federal government, joining the NRA against one of the 50 states?

[00:25:00] Is this significant or just, it speaks to the power of the NRA’s case?

[00:25:05] Thomas Berry: It is significant. It’s always significant when the Solicitor General, when the federal government steps in, opposed to state governments. I think it’s great and it’s showing the Solicitor General’s office at its best, which is that its purpose, it has essentially two purposes to defend the federal government.

[00:25:22] It will always defend the federal government when it thinks there’s a colorable claim, unless, when it thinks, the federal government’s actions are defensible, but it will also, in cases not involving the federal government, just give the court its honest views, or at least it should, on the correct application of the law and that includes defending individual rights when states are doing things against it. one might think it’s particularly risky here, because there is another job owning case still pending at the Supreme Court that alleges that the federal government, engaged in job owning related to social media, which the federal government and the Solicitor General have vigorously defended against and attempted to rebut that claim that they engaged in job owning, one might think that They were attracted to this case because they think it shows, the distinction.

[00:26:10] Maybe they thought strategically that emphasizing all the reasons why this crossed the line will just further emphasize to the court why in the other case the federal government maybe did not cross the line, that you did not have the same indicia of threats or the same behavior by the recipients of saying yes to every single claim.

[00:26:30] So there may have been some sort of, strategic attempt to. help guide the court along to a rule that would strike down what Vullo did, but uphold what the federal government did. But I think just more broadly, it’s about defending individual citizens rights, which is a core part of the mission statement for the federal government.

[00:26:50] Joe Selvaggi: But it may well be they want to distinguish between good jawboning and bad jawboning, whether the jawboning they do is good and the jawboning that New York State did is bad. So again, I don’t want to bury the lead. I think I mentioned, perhaps maybe in my intro, but this case has been decided. It was, I guess late May or early June, it was decided 9-0 unanimous, which is, I want to talk about the significance of a 9-0 decision and how Let’s say what that tells us about the court and the author of the decision was, let’s say, not one you would imagine, being a, an, a vocal supporter of the NRA.

[00:27:22] It was Justice Sotomayor. This is someone who, recently told a crowd at Harvard that after, many of the conservative decisions come down, she goes into her office and cries. She wrote the defense, or essentially the decision supporting the NRA in this case. I find that extraordinary. I thought it was a well written, as far as I can tell, well written decision. What does this say about, the strength of the NRA’s argument? And also, all the talk about delegitimizing the court and how it’s all hopelessly divided along ideological lines. Given the unity of this decision, what does this tell us about, the court in general?

[00:27:55] Thomas Berry: Yeah, I think it’s great that it was unanimous and that it was by Justice Sotomayor.

[00:27:59] There’s this, increasingly common cynicism that you can tell who’s going to vote for which party just based on the party name, that who’s on which side of the V. So anytime you have, the NRA on one side and a Democratic state administration on the other side, the six Republican appointees will automatically side with the NRA and the three Democratic appointees will automatically side with New York State, and this just shows that’s simply not true, that there are legal principles that apply equally to advocacy organizations, regardless of their ideology.

[00:28:32] The legal question here would have been exactly the same if you had flipped it to a pro-abortion advocacy group doing business, and Texas had tried to enforce, insurance laws against them. Nothing would be different in terms of the First Amendment question, in this case, and I think that if you had exactly the same facts, that would have come out 9-0 as well.

[00:28:54] And you also, I should mention, had the ACLU. I think it was very great for them that they came in and defended the NRA based on the principle, because as with all First Amendment issues, as. Groups like FIRE and ACLU and we at Cato always emphasize, you can’t pick and choose which speakers you want to defend based on whether you agree with them, because that’s the path to principles that help everyone being eroded and eventually everyone losing First Amendment security. So I think it was, and perhaps the Chief, so the Chief Justice, when it’s unanimous, assigns the opinion, and perhaps the Chief Justice had that in the back of his mind when he decided that Justice Sotomayor would be writing it, that it would be good to, reemphasize for the country that the authorship and the vote count does not depend on the identity of who’s on which side of the V.

[00:29:43] Joe Selvaggi: Yeah, that’s important. Again, I, maybe it’s trite to say the First Amendment, free speech, is not a partisan policy document. It’s, it stands for everyone, all of us. That’s our defense against, frankly, tyranny. But I’m thrilled that it came out as it did. Let’s dial back and say, where does now, NRA, yeah, you can continue with the suit, right? It gets, I think the right turn is remanded back down to the Second Circuit. What’s going to happen to the case now?

[00:30:12] Thomas Berry: It’s an interesting question. Probably the next question is the qualified immunity, because there’s a certain order to which questions you address and at which stage in litigation.

[00:30:23] And qualified immunity is another of those questions that you address before you get into the fact finding, which is what lawyers call discovery. And that’s for the purpose of not drawing it out. The justification for that is that if you’re entitled to qualified immunity as a government defendant, you shouldn’t be put through the arduous procedure of complying with, discovery, which comes with both time and monetary cost. So probably the next, the next question that will be put to the Second Circuit is, okay, they have stated a First Amendment claim. Has this claim been clearly established? And it will be fascinating to see, do they stick with their, original opinion, which said, There would be qualified immunity, even if this is a First Amendment violation, or now that the Supreme Court has corrected them, corrected their misapprehension and said this would in fact state a claim for a First Amendment question, do they now rethink what they said about qualified immunity as well?

[00:31:17] Joe Selvaggi: Interesting. you alluded to the fact that there are still other cases now pending, in front of the court, ones that, address, First Amendment issues. I’m thinking specifically of the, there’s two Net Choice, so again, talking about people on the opposite side now, the V is tilted in the other way, Net Choice cases, and then the Murthy case. Briefly, I know our, we don’t have time to outline the facts in these cases, but how does the, let’s say, this, a decision inform or informs predict the likely outcome of those if at all.

[00:31:44] Thomas Berry: Yeah, it’s fascinating. So, the most on point is Murphy vs. Missouri. This is where a group of social media users essentially allege that a lot of federal officials, including the Surgeon General of Vivek Murphy, put pressure on social media companies like Twitter at the time and Facebook saying, comply with us.

[00:32:04] You better take down all these posts that are allegedly misinformation or propaganda or the like. I think personally that it’s a closer call factually, partially because the social media companies didn’t comply with every single request. They are complied with many of them, but they seem to act as if they had the courage, or they had the free will to not comply with every single one. And also the oral argument was just a lot rockier road. So we’ve had This case argued on the same day, as Murphy v. Missouri, back to back, and the judges seemed a lot more sympathetic to the NRA’s claim than to the users, and the state of Louisiana, whose Solicitor General argued Murphy v. Missouri to their claim just because it seems like this was more just on the lines of, making requests. and in fact, there were two justices on the court, Kavanaugh and Kagan, who had worked in the White House, and they both said it was common for us to call reporters and make requests, and it would be bizarre to draw a line that says you can no longer do that because it’s inherently coercive.

[00:33:07] So I think, it’s important that the principle has been set down here, that job owning is. bad. It violates the First Amendment if you cross the line of coercion. If Murthy comes out differently, it will just be because they thought the facts, the application of that principle to the facts, comes out in a different way. And then the Net Choice cases are about Florida and Texas laws that try to compel social media companies to allegedly be non-biased or nonpartisan Act as if they were government forums that, that aren’t allowed to moderate on the basis of viewpoint. those again, hard to say how they’ll come out.

[00:33:42] The oral argument was all over the map, but one of the claims is that they were, these laws were motivated in part to punish social media companies for their alleged misconduct. Editorial tilt. So, Ron DeSantis, when he signed the law in Florida, which is one of the two at issue, said this is going to show these big tech companies that they can’t impose their liberal bias on priority and social media users anymore, something to that effect.

[00:34:06] And so if you can show that the entire law was infected with a retaliatory purpose, then you potentially have a jawboning like claim or a retaliation like claim. So, I think that’s probably less likely to be decisive than other issues in the case, but it is at least interesting that they’ve, so wholeheartedly endorsed this retaliation, jawboning, theory type of claim here in this case so soon before we’re getting the net choice cases.

[00:34:33] Joe Selvaggi: And again, you’re waiting on Tenderhooks to see when those come down. We’re recording on 6/17 on Monday, that likely, it has to, we’re running out of time, right? The court seems like it’s been a little bit slow, and I haven’t been following it for as long as you have, but it just seems like, everything’s backed up to the end, like someone trying to finish 25 term papers in a weekend. Is this unusual?

[00:34:56] Thomas Berry: It is. The statistics of the last three terms, and I don’t think it’s a coincidence that it’s the last three. I think there’s a lot of evidence that it slowed after the leak of the Dobbs opinion. And the court has even said, justices have said they have new procedures in place that are much more restrictive in terms of security, who can see opinions and things like that.

[00:35:17] So I don’t think people are taking work home on the weekends anymore by just printing it out like they probably used to. And I think they’re probably following a lot more restrictive both technological and even hard copy, security measures than they used to. So that may not be the only reason, but I think that’s a pretty clear, right after that happened, every term since, they have been significantly slower, in getting opinions out and significantly more, backloaded. So I think, it’s likely that there’s some built in kind of, inefficiency now with these new security measures. And the other reason is just. We’ve had a lot of blockbusters the last three terms. they’re setting precedents here that are going to decide for the next hundred years things like, does Chevron deference continue to exist? Can states interfere with websites editorial decisions? presidential immunity, for goodness sakes, for criminal prosecution. that’s almost flown under the radar. There are so many big cases. So I don’t think you can blame them for, as you say, bringing all of these term papers to the last possible minute.

[00:36:21] Joe Selvaggi: Well, that’s, I hope we’ve, we’ve covered a lot of ground on our discussion today. We’re almost out of time. I think we’ve perhaps piqued our listeners interest or whet their appetite to learn more. I want to assure them they don’t have to rely merely on my podcast, but rather on, in many cases, on your writing and the good work of Cato and, the Supreme Court Review and all the brilliant scholars you have there. Where can our listeners read more, learn more about all the issues at hand, that we’ve discussed here today?

[00:36:46] Thomas Berry: Sure. So, you can go to my page if you’d like to see any blog posts or recaps. For all the big cases, I’m going to be writing recaps and potentially op eds as well. So, I’m at Cato.org/people/Thomas-Barry.

[00:37:00] As you, thank you for plugging the Cato Supreme Court review that comes out every year on Constitution Day, which is September 17th. So, you can read it. It’ll be right up online that day or the next day. And you can watch our conference that day. And you’ll see recaps of all of these cases. So. Our authors write at an incredibly fast pace.

[00:37:18] They basically just spend, the month of July writing, recaps of these opinions that have not yet come out and analysis, and then I spend the month of August, without any sleep editing all of these articles, and then you can hold it in your hand on September 17th. So, I’d encourage listeners who are interested in these fun, fun wonky cases, to look out for that. And even if you’re not in DC, you can watch our conference, live streaming on the Cato website on September 17th.

[00:37:43] Joe Selvaggi: That’s as well. I’ve learned to absolutely love all of this. It’s like looking into the rule book or the, of our country, the very essence of how things, work. So thank you very much for your valuable time today, Tommy. I think we covered a lot, and you did a great job. I really appreciate your time.

[00:37:58] Thomas Berry: Always happy to. Thank you.

[00:38:01] Joe Selvaggi: This has been another episode of HubWonk. If you enjoyed today’s show, there are several ways to support HubWonk and Pioneer Institute. It would be easier for you and better for us. If you subscribe to Hub Won on your iTunes pod catcher, it would make it easier for others to find us if you offer a five-star rating or a favorable review. Of course, we’re grateful if you share HubWonk with friends. If you have ideas or comments or suggestions for me about future episode topics, you’re certainly welcome to email me at Hubwonk@pioneerinstitute.org. Please join me next week for a new episode of Hubwonk.

Joe Selvaggi talks with Cato Institute legal scholar Thomas Berry about the effects of the 9-0 Supreme Court decision in NRA v. Vullo on states’ ability to use regulation to target disfavored free speech.


Thomas Berry is a research fellow in the Cato Institute’s Robert A. Levy Center for Constitutional Studies and managing editor of the Cato Supreme Court Review. Before joining Cato, he was an attorney at Pacific Legal Foundation and clerked for Judge E. Grady Jolly of the U.S. Court of Appeals for the Fifth Circuit.