Amicus Curiae Brief — National Rifle Association of America, Petitioner v. Maria T. Vullo

i

No. 22-842

In the

Supreme Court of the United States

NATIONAL RIFLE ASSOCIATION OF AMERICA,

Petitioner,

v.

MARIA T. VULLO,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF OF AMICUS CURIAE

CLAREMONT INSTITUTE’S CENTER FOR

CONSTITUTIONAL JURISPRUDENCE IN

SUPPORT OF PETITIONER

JOHN C. EASTMAN

ANTHONY T. CASO

Counsel of Record

Constitutional Counsel Group

1628 N. Main St. #289

Salinas, CA 93906

(916) 601-1916

atcaso@ccg1776.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES....................................... ii

INTEREST OF AMICUS CURIAE.............................1

SUMMARY OF ARGUMENT .....................................1

ARGUMENT ...............................................................4

I. Robust Protection of Free Speech Is

Essential to a Functioning Republic. ............... 4

II. Government Is Free to Add its Voice to a

Matter of Public Concern But is Not Free

to Silence the Voice of Others. ....................... 11

III.Use of Regulatory Power to Discriminate

Against Speakers and their Messages

Violates the First Amendment. ...................... 13

CONCLUSION ..................................................... 15

ii

TABLE OF AUTHORITIES

Cases

303 Creative LLC v. Elenis,

143 S.Ct. 2298 (2023)...............................................1

Am. Trucking Ass’ns v. City of Los Angeles,

569 U.S. 641 (2013)................................................ 14

Americans for Prosperity Foundation v. Bonta,

141 S.Ct. 2373 (2021)...............................................1

Citizens United v. FEC,

558 U.S. 310 (2010)................................................ 13

Colorado Republican Fed. Campaign

Comm. v. FEC,

578 U.S. 604 (1996)................................................ 12

Consol. Edison Co. of New York v. Pub. Services

Comm’n of New York,

447 U.S. 530 (1980)................................................ 12

Garrison v. State of Louisiana,

379 U.S. 64 (1964).................................................. 12

Kennedy v. Warren,

66 F.4th 1199 (9th Cir. 2023) ....................................3

McDonald v. City of Chicago,

561 U.S. 742 (2010)..................................................1

McIntyre v. Ohio Elections Comm’n,

514 U.S. 334 (1995)................................................ 10

Missouri v. Biden,

2023 WL 4335270 (2023) (cert granted, Murthy v.

Missouri, No. 23-411) ..............................................3

NAACP v. Button,

371 U.S. 415 (1963)................................................ 11

iii

National Institute of Family and Life Advocates v.

Becerra,

138 S.Ct. 2361 (2018)...............................................1

New York Times Co. v. Sullivan,

376 U.S. 254 (1964)..................................................9

Police Dep’t of City of Chicago v. Mosley,

408 U.S. 92 (1972).................................................. 11

Red Lion Broadcasting Co. v. FCC,

395 U.S. 367 (1969)................................................ 12

Sackett v. EPA,

566 U.S. 120 (2012)................................................ 13

Shelton v. Tucker,

364 U.S. 479 (1960)................................................ 11

Simon & Schuster, Inc. v. Members of New York

State Crime Victims Bd.,

502 U.S. 105 (1991)................................................ 12

Talley v. California,

362 U.S. 60 (1960).................................................. 12

Thornhill v. Alabama,

310 U.S. 88 (1940)....................................................6

West Virginia Board of Education v. Barnette,

319 U.S. 624 (1943).............................................. 2, 4

Other Authorities

Agrippa XII, Massachusetts Gazette, reprinted in 5

THE DOCUMENTARY HISTORY OF THE RATIFICATION

OF THE CONSTITUTION, Massachusetts No. 2 (John

P. Kaminski, et al. eds. 2009)..................................8

Cahn, Edmond, The Firstness of the First

Amendment, 65 Yale L.J. 464 (1956) .................. 4, 9

iv

Candidus II, Independent Chronicle, reprinted in 5

THE DOCUMENTARY HISTORY OF THE RATIFICATION

OF THE CONSTITUTION, Massachusetts No. 2 (John

P. Kaminski, et al. eds. 2009)..................................8

Cooley, Thomas, THE GENERAL PRINCIPLES OF

CONSTITUTIONAL LAW, (Little, Brown, & Co. 1880) 5

CREATING THE BILL OF RIGHTS (Helen Veit, et al. eds.

1991) .........................................................................9

Declaration of Rights and Other Amendments, North

Carolina Ratifying Convention (Aug. 1, 1788),

reprinted in 5 THE FOUNDERS’ CONSTITUTION

(Philip B. Kurland & Ralph Lerner eds., 1987) ......8

Franklin, Benjamin, On Freedom of Speech and the

Press, Pennsylvania Gazette, November 17, 1737

(reprinted in 2 THE LIFE AND WRITINGS OF

BENJAMIN FRANKLIN (McCarty & Davis 1840) .......4

George Mason’s Objections, Massachusetts Centinel,

reprinted in 14 THE DOCUMENTARY HISTORY OF THE

RATIFICATION OF THE CONSTITUTION,

Commentaries on the Constitution No. 2 (John P.

Kaminski, et al. eds. 2009) ......................................7

History of Congress, February, 1799 ..........................9

Journal of the Continental Congress, 1904 ed., vol. I 6

Kaminski, John P., CITIZEN PAINE (Madison House

2002) .........................................................................5

Letter of George Lee Turberville to Arthur Lee,

reprinted in 8 THE DOCUMENTARY HISTORY OF THE

RATIFICATION OF THE CONSTITUTION, Virginia No. 1

(John P. Kaminski, et al. eds. 2009) .......................8

Letter of Thomas Jefferson to James Madison,

reprinted in 8 THE DOCUMENTARY HISTORY OF THE

v

RATIFICATION OF THE CONSTITUTION, Virginia No. 1

(John P. Kaminski, et al. eds. 2009) .......................8

Madison, James, On Property, Mar. 29, 1792 ........ 4, 6

Needles, Edward, AN HISTORICAL MEMOIR OF THE

PENNSYLVANIA SOCIETY FOR PROMOTING THE

ABOLITION OF SLAVERY (Merrihew and Thompson

1848) .........................................................................7

New York Ratification of Constitution (July 26,

1788), reprinted in 5 The Founders’ Constitution

(Philip B. Kurland & Ralph Lerner, eds. 1987) ......8

Richardson, Katelynn, Stanford Admin Eggs

Students On As They Shout Down, Heckle Federal

Judge During Talk, Daily Caller News

Foundation, March 10, 2023 ...................................3

Shapero, Julia, Former NYT columnist Bari Weiss

releases ‘Twitter Files Part Two’, The Hill,

December 8, 2022.....................................................2

The Dissent of the Minority of the Convention,

reprinted in 2 THE DOCUMENTARY HISTORY OF THE

RATIFICATION OF THE CONSTITUTION, Pennsylvania

(John P. Kaminski, et al. eds. 2009) .......................8

The Liberator, vol. 1, issue 1, January 1, 1831 (image

available at http://fair-use.org/theliberator/1831/01/01/the-liberator-01-01.pdf) .........7

Thorpe, Francis N., THE FEDERAL AND STATE

CONSTITUTIONS (William S Hein 1993) ...................6

Virginia Ratification Debates reprinted in 10 THE

DOCUMENTARY HISTORY OF THE RATIFICATION OF

THE CONSTITUTION, Virginia No. 3 (John P.

Kaminski, et al. eds. 2009) ......................................8

vi

Wulfsohn, Joseph A., Twitter Files Part 6 reveals

FBI’s ties to tech giant: “As if it were a subsidiary”,

Fox News, December 16, 2022 ................................2

1

INTEREST OF AMICUS CURIAE1

The Center for Constitutional Jurisprudence is the

public interest law arm of the Claremont Institute,

whose stated mission is to restore the principles of the

American founding to their rightful and preeminent

authority in our national life, including the principle

that the people freedom of speech is critical to a functioning republic. The Center has previously appeared

before this Court as amicus curiae and counsel in several cases addressing these issues, 303 Creative LLC

v. Elenis, 143 S.Ct. 2298 (2023); Americans for Prosperity Foundation v. Bonta, 141 S.Ct. 2373 (2021); and

National Institute of Family and Life Advocates v.

Becerra, 138 S.Ct. 2361 (2018).

SUMMARY OF ARGUMENT

This Court has acknowledged that the right to

keep and bear arms is among “those fundamental

rights necessary to our system of ordered liberty.”

McDonald v. City of Chicago, 561 U.S. 742, 778 (plurality), 822-50 (Thomas, J., concurring in part and

concurring in the judgment) (2010). This is a conclusion with which respondent in this case strongly disagrees. Thus, she decided to use her government position to pursue her personal policy goals to silence a

Second Amendment advocacy organization. Unable to

attack the organization directly (since it was outside

of her regulatory purview), she exercised the raw

power of a regulator to threaten regulated industries

1 In accordance with Rule 37.6, counsel affirms that no counsel

for any party authored this brief in whole or in part and that no

person or entity other than amicus made a monetary contribution to fund the preparation and submission of this brief.

2

with costly proceedings and fines if they did not stop

doing business with the petitioner.

In West Virginia Board of Education v. Barnette,

319 U.S. 624, 642 (1943), this Court described as a

“fixed star in our constitutional constellation” the precept that “no official, high or petty, can prescribe what

shall be orthodox … in … matters of opinion. This

term, the Court will hear several cases, in addition to

this case, to determine whether that star has been

eclipsed by state power to silence critics (Netchoice v.

Paxton, No. 22-555; Moody v. Netchoice, No. 22-277;

Murthy v. Missouri, No. 23-411).

Government officials pressure social media outlets

to suppress ideas and even truthful information that

runs counter to the government-backed narrative.

Reporters Matt Taibbi, Michael Shellenberger, and

Bari Weiss, who were given access to the “Twitter

Files,” have written about how government officials

pressured Twitter to suppress unwanted viewpoints

and even deplatform some speakers. See, e.g., Julia

Shapero, Former NYT columnist Bari Weiss releases

‘Twitter Files Part Two’, The Hill, December 8, 20222;

Joseph A. Wulfsohn, Twitter Files Part 6 reveals FBI’s

ties to tech giant: “As if it were a subsidiary”, Fox

News, December 16, 20223. United States Senator

Elizabeth Warren used her office to pressure Amazon

to suppress a book backed by current presidential candidate Robert Kenney, Jr. that was critical of govern-

2 https://thehill.com/policy/technology/3768087-former-nyt-col-

umnist-bari-weiss-releases-twitter-files-part-two/ (last visited

August 22, 2023).

3 https://www.foxnews.com/media/twitter-files-part-6-revealsfbis-ties-tech-giant (last visited August 22, 2023).

3

ment policies concerning Covid-19. Kennedy v. Warren, 66 F.4th 1199, 1204 (9th Cir. 2023). The current

administration continues to work with Facebook to

suppress unwanted points of view. Missouri v. Biden,

2023 WL 4335270 at *2 (WD LA 2023) (cert granted,

Murthy v. Missouri, No. 23-411). Apparently, those in

power believe that they have the authority to decree

what shall be orthodox opinion and what information

can and cannot be shared.

Speakers at college campuses, and even law

schools, are regularly shouted down by protestors who

want to prevent the speakers from sharing their ideas.

In one recent episode, Fifth Circuit Judge Kyle Duncan was prevented by protestors from speaking at a

prominent law school. An official from the law school

intervened on behalf of the protestors! Katelynn Richardson, Stanford Admin Eggs Students On As They

Shout Down, Heckle Federal Judge During Talk,

Daily Caller News Foundation, March 10, 2023.4

The First Amendment was intended to protect

speech that challenged the listener – speech intended

to change the listener’s mind. It cannot tolerate attempts at censorship.

This case is not about whether the government, or

even an individual bureaucrat, has the legal authority

to advocate for elimination of a fundamental constitutional right. It is instead about whether the government can use its regulatory powers to dissuade other

private businesses from working with organizations

that advocate in favor of the Constitution.

4 https://dailycaller.com/2023/03/10/federal-judge-censured-dei-

dean-law-students-stanford/ (last visited August 22, 2023).

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ARGUMENT

I.

Robust Protection of Free Speech Is Essential to a Functioning Republic.

The First Amendment preserves the natural

right to liberty of conscience—that right to one’s own

opinions, and to share those opinions with others to

sway them to your point of view. James Madison, On

Property, Mar. 29, 1792 (Papers 14:266-68) (“A man

has a property in his opinions and the free communication of them.”). Without this right, the people lose

their status as sovereign and officials in power “can

prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” West Virginia Board of Education v. Barnette, 319 U.S. at 642.

The founding generation rejected the idea that

government officials should have the power to silence

opposing viewpoints. They recognized that freedom to

communicate opinions is a fundamental pillar of a free

government that, when “taken away, the constitution

of a free society is dissolved.” Benjamin Franklin, On

Freedom of Speech and the Press, Pennsylvania Gazette, November 17, 1737 (reprinted in 2 THE LIFE AND

WRITINGS OF BENJAMIN FRANKLIN (McCarty & Davis

1840) at 431).

Thomas Paine argued that “thinking, speaking,

forming and giving opinions” are among the natural

rights held by people. Edmond Cahn, The Firstness of

the First Amendment, 65 Yale L.J. 464, 472 (1956).

Congress and the states agreed. The First Amendment does not “grant” freedom of speech. The text

speaks about a right that already exists and prohibits

Congress from enacting laws that might abridge that

5

freedom. U.S. Const. Amend. I. That prohibition extends to state and local governments. Gitlow v. New

York, 268 U.S. 652, 666 (1925). As Thomas Cooley

noted, the First Amendment’s guaranty of free speech

“undertakes to give no rights, but it recognizes the

rights mentioned as something known, understood,

and existing.” Thomas Cooley, THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW, (Little, Brown, & Co.

1880) at 272.

A sample of the speech activity at the time of the

founding helps define the breadth of the freedom of

speech recognized in the First Amendment. Thomas

Paine, of course, is the most famous example of the

pamphleteers during the time leading up to the revolution. His pamphlet Common Sense urged his fellow

citizens to take direct action against the Crown. John

P. Kaminski, CITIZEN PAINE (Madison House 2002) at

7.

Such speech was not protected under British rule.

Paine thus chose to publish Common Sense anonymously in its first printing. See id. Paine’s work was

influential. Another of Paine’s pamphlets, Crisis

(“These are the times that try men’s souls”), from The

American Crisis series, was read aloud to the troops

to inspire them as they prepared to attack Trenton.

Id. at 11. That influence, however, is what made

Paine’s work dangerous to the British and was why

they were anxious to stop his pamphleteering.

With these and other restrictions on speech fresh

in their memories, the framers set out to draft their

first state constitutions even in the midst of the war.

These constitution writers were careful to set out express protections for speech.

6

The impulse to protect the right of the people to

share their opinions with each other was nearly universal in the colonies. In 1776, North Carolina and

Virginia both issued Declarations of Rights protecting

freedom of the press. Francis N. Thorpe, 5 THE FEDERAL AND STATE CONSTITUTIONS (William S Hein

1993) at 2788 (North Carolina) (hereafter Thorpe); 7

Thorpe at 3814 (Virginia). Both documents identified

this freedom as one of the “great bulwarks of liberty.”

Maryland’s Constitution of 1776, Georgia’s constitution of 1777, and South Carolina’s constitution of 1778

all protected liberty of the press. 3 Thorpe at 1690

(Maryland); 2 Thorpe at 785 (Georgia); 6 Thorpe at

3257 (South Carolina). Vermont’s constitution of 1777

protected the people’s right to freedom of speech, writing, and publishing. 6 Thorpe at 3741. As other states

wrote their constitutions, they too included protections for what Madison called “property in [our] opinions and the free communication of them.” James

Madison, On Property, supra.

An example of the importance of these rights to

the founding generation is in the letter that the Continental Congress sent to the “Inhabitants of Quebec”

in 1774. That letter listed freedom of the press as one

of the five great freedoms because it facilitated “ready

communication of thoughts between subjects.” Journal of the Continental Congress, 1904 ed., vol. I, pp.

104, 108 quoted in Thornhill v. Alabama, 310 U.S. 88,

102 (1940).

The revolution against the Crown was not the

only topic of controversy that generated pamphlets in

this period. Abolition of slavery was a topic that divided the nation in the late 1700’s and that would

7

send the nation into civil war in the 1800’s. The Pennsylvania Abolition Society, formed in 1775, was one

organization that advocated its views to others. Edward Needles, AN HISTORICAL MEMOIR OF THE PENNSYLVANIA SOCIETY FOR PROMOTING THE ABOLITION OF

SLAVERY (Merrihew and Thompson 1848) at 14. The

Society and other abolitionists during this period engaged in legal actions, published books against slavery, circulated petitions, and distributed pamphlets.

See id. at 17-18. The focus of their efforts was to convince their fellow citizens of the inherent evils of slavery. In their own way, the abolitionists were an early

example of a right to life organization, promoting the

view that we are equal in the eyes of our Creator and

entitled to life and liberty.

The arguments offered by the abolitionists were

designed to capture the attention of their fellow citizens. In the words of William Garrison, in his antislavery newspaper, “The Liberator”, “I do not wish to

think, or speak, or write, with moderation … I am in

earnest – I will not equivocate – I will not excuse – I

will not retreat a single inch – AND I WILL BE

HEARD.” The Liberator, vol. 1, issue 1, January 1,

1831 (image available at http://fair-use.org/the-liberator/1831/01/01/the-liberator-01-01.pdf).

Notwithstanding the controversial nature of

speech activity in the latter half of the 18th Century,

the founders were steadfast in their commitment to

protect speech rights. The failure to include a free

speech guaranty in the new Constitution was one of

the omissions that led many to argue against ratification. E.g., George Mason’s Objections, Massachusetts

Centinel, reprinted in 14 The Documentary History of

the Ratification of the Constitution at 149-50; Letter

8

of George Lee Turberville to Arthur Lee, reprinted in 8

The Documentary History of the Ratification of the

Constitution at 128; Letter of Thomas Jefferson to

James Madison, reprinted in 8 The Documentary History of the Ratification of the Constitution at 250-51;

Candidus II, Independent Chronicle, reprinted in 5

The Documentary History of the Ratification of the

Constitution at 498; Agrippa XII, Massachusetts Gazette, reprinted in 5 The Documentary History of the

Ratification of the Constitution at 722.

A number of state ratifying conventions proposed

amendments to the new Constitution to cure this

omission. Virginia proposed a declaration of rights

that included a right of the people “to freedom of

speech, and of writing and publishing their sentiments.” Virginia Ratification Debates reprinted in 10

The Documentary History of the Ratification of the

Constitution at 1553. North Carolina proposed a similar amendment. Declaration of Rights and Other

Amendments, North Carolina Ratifying Convention

(Aug. 1, 1788), reprinted in 5 The Founders’ Constitution at 18. New York’s convention proposed amendment to secure the rights of assembly, petition, and

freedom of the press. New York Ratification of Constitution, 26 July 1788, Elliot 1:327--31, reprinted in 5

The Founders’ Constitution, supra at 12. The Pennsylvania convention produced a minority report putting forth proposed amendments including a declaration that the people had “a right to freedom of speech.”

The Dissent of the Minority of the Convention, reprinted in 2 The Documentary History of the Ratification of the Constitution.

Madison ultimately promised to propose a Bill of

Rights in the first Congress. CREATING THE BILL OF

9

RIGHTS (Helen Veit, et al. eds. 1991) at xii. Although

Madison argued that a Bill of Rights provision protecting speech rights would not itself stop Congress

from violating those rights, Jefferson reminded him

that such a guaranty in the Constitution provided the

judiciary the power it needed to enforce the freedom.

Madison repeated this rationale as he rose to present

the proposed amendments to the House of Representatives. The Firstness of the First Amendment, supra,

at 467-68.

Congress quickly tested this limit on its power

with the enactment of the Sedition Act. The question

for the new country was whether the free speech and

press guarantees only protected against prior restraint, as was the case in England, or whether they

guaranteed the type of liberty envisioned by Madison

and others who argued for a freedom to share ideas

with fellow citizens.

In the Sedition Act of 1798 Congress outlawed

publication of “false, scandalous, and malicious writings against the Government, with intent to stir up

sedition.” The supporters of the law argued that it

was needed to carry out “the power vested by the Constitution in the Government.” History of Congress,

February 1799 at 2988. Opponents rejected that justification as one not countenanced by the First

Amendment. In an earlier debate over the nature of

constitutional power, Madison noted “‘If we advert to

the nature of Republican Government, we shall find

that the censorial power is in the people over the Government, and not in the Government over the people.’

4 ANNALS OF CONGRESS, p. 934 (1794).” New York

Times Co. v. Sullivan, 376 U.S. 254, 275 (1964).

10

The Virginia Resolutions of 1798 also condemned

the act as the exercise of “‘a power not delegated by

the Constitution, but, on the contrary, expressly and

positively forbidden by one of the amendments

thereto.’” Id. at 274. The particular evil in the Sedition Act, according to the Virginia General Assembly,

was that it was “‘levelled [sic] against the right of

freely examining public characters and measures, and

of free communication among the people thereon.’” Id.

The Sedition Act expired by its own terms in 1801

and the new Congress refused to extend or reenact the

prohibitions. For his part, Jefferson pardoned those

convicted and fines were reimbursed by an act of Congress based on Congress’ view that the Sedition Act

was unconstitutional. Id. at 276.

This Court in New York Times Co., noted that

“[a]lthough the Sedition Act was never tested in this

Court, the attack upon its validity has carried the day

in the court of history.” Id. More important than the

“court of history,” is the apparent political judgment

at the time that the enactment was inconsistent with

the Constitution. Where one Congress attempted to

insulate itself from criticism, the subsequent Congress immediately recognized that attempt as contrary to the First Amendment. Congress and the

President did not merely allow the law to lapse—they

took affirmative action to undo its effects through repayment of fines and pardons. This is the clearest indication we have of that the people intended the First

Amendment’s speech and press clauses to be much

broader than a simple bar on prior restraints. See

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 360

(1995) (Thomas, J. concurring) (evidence of original

11

understanding of the Constitution can be found in the

“practices and beliefs held by the Founders”).

The First Amendment prohibits government

from attempting to silence citizens, especially on matters of controversy. The people of the new nation understood the scope of controversial matters on which

people would share their opinions. They nonetheless

insisted on including a prohibition on “abridging freedom of speech” in their new Constitution.

In this case, respondent used her regulatory

power over third parties to isolate and punish the National Rifle Association. Respondent took this action

because she disagreed with the fundamental right

protected by the Second Amendment and hoped to silence the primary advocate for that right. But this

Court has held: “Above all else, the First Amendment

means that government has no power to restrict expression because of its message, its ideas, its subject

matter, or its content.” Police Dep’t of City of Chicago

v. Mosley, 408 U.S. 92, 95 (1972).

II.

Government Is Free to Add its Voice to a

Matter of Public Concern But is Not Free to

Silence the Voice of Others.

As important as Freedom of Speech is to political

freedom, it is also quite vulnerable to attempts by

state and federal regulators to suppress that speech.

See NAACP v. Button, 371 U.S. 415, 433 (1963). For

that reason, this Court has recognized the need to provide “breathing space” for this vital freedom. Id.

Thus, the Court has been wary of schemes that could

“chill” freedom of speech and association. Shelton v.

Tucker, 364 U.S. 479, 487 (1960). For instance, the

12

Court has protected anonymous speech, in part to protect against government reprisal. See Talley v. California, 362 U.S. 60, 65 (1960).

This Court has also ruled that government may

not exclude viewpoints it opposes from the marketplace of ideas. The First Amendment places discrimination based on viewpoint “beyond the power of the

government.” Simon & Schuster, Inc. v. Members of

New York State Crime Victims Bd., 502 U.S. 105, 116

(1991). The search for political truth excludes the idea

that government can dictate what ideas are permissible. Consol. Edison Co. of New York v. Pub. Services

Comm’n of New York, 447 U.S. 530, 537-38 (1980).

Only by prohibiting viewpoint discrimination can

there be “an uninhibited marketplace of ideas.” Red

Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390

(1969). It is in this way that the First Amendment

protects the search for “political truth” and self-government. Id., see Garrison v. State of Louisiana, 379

U.S. 64, 74-75 (1964), see also Colorado Republican

Fed. Campaign Comm. v. FEC, 578 U.S. 604, 629

(1996) (Kenndy, J., concurring in the judgment).

In this case, Vullo has targeted one particular

viewpoint (the fundamental right to keep and bear

arms), and one particular speaker (the NRA). Undoubtedly, the NRA was targeted because of its success in advocating for the Second Amendment - the

viewpoint that Vullo finds objectionable. But rather

than engaging in debate in the marketplace of ideas,

respondent has chosen to attempt to shut down the

debate. Using the state’s regulatory power, respondent here sought to frighten regulated entities from doing business with the NRA. Vullo’s response to speech

13

she opposed was to punish that speech by threatening

others who engaged in business with the NRA.

Vullo’s actions were plainly based on viewpoint

discrimination.

III.

Use of Regulatory Power to Discriminate

Against Speakers and their Messages Violates the First Amendment.

Vullo used her regulatory power against third parties. She had no regulatory jurisdiction over the NRA.

Yet her actions were clearly aimed at the NRA – seeking to have regulated entities cease doing business

with the NRA. Her actions were motivated by her disagreement with the NRA’s defense of the fundamental

individual liberty recognized in the Second Amendment to the Constitution.

There can be no legitimate government purpose in

pressuring third parties to stop doing business with

an advocate simply because the government opposes

the advocate’s message. Even mere speech by a regulator that regulated entities ought not to transact

business with the NRA cannot be tolerated.

Regulatory agencies wield tremendous power to coerce actions by regulated entities. Complex regulatory schemes coupled with the power of criminal enforcement or imposition of civil penalties, are, as a

practical matter, likely to convince regulated entities

to fall in line with the political will of the regulator in

charge. See Citizens United v. FEC, 558 U.S. 310, 355

(2010), see also Sackett v. EPA, 566 U.S. 120, 130-31

(2012) (“there is no reason to think that the Clean Water Act was uniquely designed to enable the strongarming of regulated entities into ‘voluntary compliance.’”); Am. Trucking Ass’ns v. City of Los Angeles,

14

569 U.S. 641, 650-51 (2013) (use of a contract was

“part and parcel of a governmental program wielding

coercive power over private parties”). In reality, these

threats against third parties are no different than direct censorship of the speaker.

Once the government identifies speakers and viewpoints it opposes, regulated entities will naturally

take notice. When the regulator issues statements

“advising” regulated entities to avoid doing business

with the government-opposed speaker, those entities

are wise to consider that advice to be a threat to their

own livelihoods. Government action of this sort is inimical to the values protected by the First Amendment.

15

CONCLUSION

Government action that seeks to silence or punish

viewpoints and speakers must be judged under strict

scrutiny. The respondent in this action sought to suppress and punish speech based on the viewpoint of the

speaker. This violates the First Amendment.

January 2024

Respectfully submitted,

JOHN C. EASTMAN

ANTHONY T. CASO

Counsel of Record

Constitutional Counsel Group

1628 N. Main St. #289

Salinas, CA 93906

(916) 601-1916

atcaso@ccg1776.com

Counsel for Amicus Curiae