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

Supreme Court briefJan 16, 2024

Ask Donna

What actually matters in this document.

Text

No. 22-842

In the Supreme Court of the United States

THE NATIONAL RIFLE ASSOCIATION OF AMERICA,

Petitioner,

MARIA T. VULLO, BOTH INDIVIDUALLY AND IN HER

FORMER OFFICIAL CAPACITY,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

BRIEF OF AMICI CURIAE NATIONAL

ASSOCIATION FOR GUN RIGHTS & NATIONAL

FOUNDATION FOR GUN RIGHTS IN SUPPORT

OF PETITIONER

DAVID A. WARRINGTON

JOSIAH CONTARINO

Counsel of Record

ANTHONY J. FUSARO, JR.

GARY M. LAWKOWSKI

DHILLON LAW GROUP

INC.

50 Park Pl.

2121 Eisenhower Ave.

Suite 1105

Suite 608

Newark, NJ 07102

Alexandria, VA 22314

(917) 423-7221

(703) 574-1206

jcontarino@

dwarrington@

dhillonlaw.com

afusaro@

glawkowski@

dhillonlaw.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Table of Contents.......................................................... i

Table of Authorities .....................................................ii

Interest of Amici Curiae ............................................. 1

Summary of the Argument ......................................... 3

Argument ..................................................................... 4

Respondents Have a Well-Established

Right to Freedom of Association ...................... 4

II.

The Background and Origin of the

Government Speech Doctrine ........................... 7

III. The Government Speech Doctrine

Cannot Be Employed to Discriminate

Against Disfavored Protected

Associations. .................................................... 15

(i)

(ii)

TABLE OF AUTHORITIES

Cases

Bd. of Regents of U. of Wisconsin System v.

Southworth,

529 U.S. 217 (2000) ................................................ 10

Boy Scouts of Am. v. Dale,

530 U.S. 640 (2000) .................................................. 7

Johanns v. Livestock Mktg. Ass'n,

544 U.S. 550 (2005) ................................................ 10

Keller v. State Bar of California,

496 U.S. 1 (1990) ................................................ 8, 13

Matal v. Tam,

582 U.S. 218 (2017) ........ 8, 11, 12, 14, 16, 21, 22, 23

NAACP v. Alabama ex rel. Patterson,

357 U.S. 449 (1958) .............................................. 4, 5

NAACP v. Button,

371 U.S. 415 (1963) ........................................ 5, 6, 18

National Rifle Association of America v. Vullo,

49 F.4th 700 (2d Cir. 2022), cert. granted in

part,

144 S. Ct. 375 (2023) .................................. 12, 19, 20

Pleasant Grove City, Utah v. Summum,

555 U.S. 460 (2009) .................... 9, 10, 12, 13, 14, 18

Roberts v. U.S. Jaycees,

468 U.S. 609 (1984) .................................................. 6

Rosenberger v. Rector and Visitors of U. of

Virginia,

515 U.S. 819 (1995) ................................................ 23

Rumsfeld v. F. for Acad. & Institutional Rts., Inc.,

547 U.S. 47 (2006) ................................................ 6, 7

(iii)

Rust v. Sullivan,

500 U.S. 173 (1991) ............................................ 8, 16

Shurtleff v. City of Boston, Massachusetts,

596 U.S. 243 (2022) .............................. 11, 17, 21, 22

Walker v. Texas Div., Sons of Confederate

Veterans, Inc.,

576 U.S. 200 (2015) .......................................... 10, 11

Constitutional Provisions

U.S. Const. amend I .................................................... 4

Secondary Materials

Daniel J. Hemel, Lisa Larrimore Ouellette, Public

Perceptions of Government Speech, 2017 Sup.

Ct. Rev. 33 (2017) ................................................... 8

Elena Kagan, Private Speech, Public Purpose:

The Role of Governmental Motive in First

Amendment Doctrine, 63 U. Chi. L. Rev. 413

(1996) .................................................................... 19

Erwin Chemerinsky, Free Speech Dead Zones,

2022 U. Ill. L. Rev. 1695 (2022) ............................. 8

Helen Norton, The Equal Protection Implications

of Government’s Hateful Speech, 54 Wm. &

Mary L. Rev. 159 (2012) ....................................... 15

Joseph Blocher, Viewpoint Neutrality and

Government Speech, 52 B.C. L. Rev. 695

(2011) .................................................................... 17

Michael Kang & Dr. Jacob Eisler, Rethinking the

Government Speech Doctrine, Post-Trump,

2022 U. Ill. L. Rev. 1943 (2022) ............................. 8

In the Supreme Court of the United States

No. 22-842

THE NATIONAL RIFLE ASSOCIATION OF AMERICA,

Petitioner,

MARIA T. VULLO, BOTH INDIVIDUALLY AND IN HER

FORMER OFFICIAL CAPACITY,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

BRIEF OF AMICI CURIAE NATIONAL ASSOCIATION

FOR GUN RIGHTS & NATIONAL FOUNDATION FOR

GUN RIGHTS IN SUPPORT OF PETITIONER

INTEREST OF AMICI CURIAE 1

Amicus Curiae National Association for Gun

Rights, Inc. (“NAGR”) is a non-profit social welfare

organization exempt from income tax operating under

IRC § 501(c)(4). NAGR was established to inform the

1 Pursuant to Rule 37.6, no counsel for a party authored this

brief in whole or in part, and no person other than amici curiae,

its members, or its counsel made a monetary contribution to this

brief’s preparation or submission.

(1)

public on matters related to the Second Amendment,

including publicizing the related voting records and

public positions of elected officials. NAGR encourages

and assists Americans in public participation and

communications with elected officials and policy

makers to promote and protect the right to keep and

bear arms through the legislative and public policy

process.

Amicus Curiae National Foundation for Gun

Rights, Inc. (“NFGR”) is a non-profit organization

exempt from income tax under IRC 501(c)(3). NFGR

is the legal wing of the NAGR and exists to defend the

Second Amendment in the court system.

SUMMARY OF THE ARGUMENT

The First Amendment protects the free speech

and associational rights of the American people from

encroachment by the government. It does not allow

state actors to use threats to pressure private citizens

into treating disfavored groups as persona non grata.

In framing this case, the Second Circuit looked

to the government speech doctrine. The government

speech doctrine emerged as a way to distinguish

between when the government was speaking as a

participant in the marketplace of ideas and when

speech with some government nexus was properly

attributable to private parties. As such, it is properly

viewed as a way to sort out who is speaking. It does

not alter the fundamental principles of what they may

say or give license to the government to tread upon the

association rights of individuals and entities. The

government is big enough to look out for itself and does

not need a “free speech right” to protect its own

interests, nor is one created by the government speech

doctrine.

The Court should take this opportunity to

clarify that the government speech doctrine does not

create a separate set of “free speech rights” to be

balanced against those of private speakers. Instead,

the Court should adopt a two-part test to assess

government speech claims that focuses on whether the

speech in question is a purposeful communication on

behalf of the government and whether the speech

targets private actors for hostile treatment based on

the views they express.

When viewed through this lens, it is apparent

that Respondent transgressed clearly established

First Amendment lines. Respondent’s “speech” is

little more than a thinly veiled threat to wield

government authority against insurance provides if

they do not adopt Respondent’s preferred policy

outcomes, effectively telling insurance providers

“that’s a nice business you’ve got there, it would be a

real shame if something happened to it.” This is

properly understood as an infringement upon the

associational rights of Petitioner and those wishing to

do business with the Petition that violates the First

Amendment.

ARGUMENT

Respondents Have a Well-Established

Right to Freedom of Association

Second Amendment rights—and advocating for

those rights—are not second-class rights. Respondent

may disagree with the Second Amendment and the

scope of the rights it protects, but that disagreement

does not place those rights beyond the protection of the

Constitution.

It is well established that the Constitution

ensures individuals—like the Petitioners’ members—

have the right to associate with others to advance

common beliefs and ideas. NAACP v. Alabama ex rel.

Patterson, 357 U.S. 449, 460 (1958); U.S. Const.

amend I.

When state action curtails that freedom to

associate, it is “subject to the closest scrutiny.” Id. at

460–61. This is so even when the state action

“abridge[s] . . . such rights . . . uninten[tionally],” or

when it “appear[s] to be totally unrelated to protected

liberties.” Id. at 461.

Such was the case in Patterson, in which the

Court found unconstitutional a state court order

compelling the NAACP to disclose its member list to

the Alabama Attorney General. Id. at 452–53, 462–63.

The Court reasoned that compelled disclosure of the

member list would hurt the NAACP’s ability to pursue

collective advocacy, by inducing members to leave the

NAACP and dissuading others from joining it. Id. at

462–63. This was an indirect attack on the NAACP’s

First Amendment rights.

In another case involving the NAACP, the

Court held unconstitutional a Virginia statute

regulating solicitation in the legal industry, because

the statute infringed on the NAACP’s freedoms of

expression and association under the First and

Fourteenth Amendments. NAACP v. Button, 371 U.S.

415, 428–29 (1963). Specifically, the Court stated that,

in addition to “abstract discussion,” the First

Amendment “protects vigorous advocacy, certainly of

lawful ends, against governmental intrusion”—

vigorous advocacy that the Court considered a “form

of political expression.” Id. at 429 (citations omitted).

“[O]rderly group activity,” including from “minority,

dissident groups,” is constitutionally protected. Id. at

430, 431 (citation and internal quotation marks

omitted).

This “Court has recognized a right to associate

for the purpose of engaging in those activities

protected by the First Amendment.” Roberts v. U.S.

Jaycees, 468 U.S. 609, 618 (1984). Activities such as

“speech, assembly, petition for the redress of

grievances, and the exercise of religion.” Ibid. Freedom

to associate for these purposes is “an indispensable

means of preserving other individual liberties.” Ibid.

And the “First Amendment’s protection extends

beyond the right to speak.” Rumsfeld v. F. for Acad. &

Institutional Rts., Inc., 547 U.S. 47, 68 (2006). It

extends to those who associate “for the purpose of

speaking, which [the Court has] termed a ‘right of

expressive association.’” Id. (quoting Boy Scouts of

Am. v. Dale, 530 U.S. 640, 644 (2000)). This extension

is necessary because speech is often more effective

when it’s combined “with the voices of others.” Id.

Like many freedoms, expressive association “is

not absolute.” Boy Scouts of Am., 530 U.S at 648. But

state action that infringes upon it can be sustained

only if it “serve[s] compelling state interests,

unrelated to the suppression of ideas, that cannot be

achieved through means significantly less restrictive

of associational freedoms.” Id. (citation and internal

quotation marks omitted).

II.

The Background and Origin of the

Government Speech Doctrine.

The Origin of the Government

Speech Doctrine.

The government speech doctrine first emerged

in the early 1990s as a mere recognition that, “[s]o long

as it bases its actions on legitimate goals, [the]

government may speak despite citizen disagreement

with the content of its message.” Keller v. State Bar of

California, 496 U.S. 1, 10 (1990) (citation and internal

quotation marks omitted). When this Court initially

developed the government speech doctrine, its

application was guided by three straightforward

rationales. First, given the “countless advocates

outside of the government seeking to influence its

policy, it would be ironic if those charged with making

governmental decisions were not free to speak for

themselves.” Keller, 496 U.S. at 12.

Second, from a functionalist perspective, when

the government does speak for itself, it cannot be

expected to simultaneously advocate against itself.

See Matal v. Tam, 582 U.S. 218, 234–35 (2017)

(explaining that when the government produced

posters promoting activities that supported the

Second World War, “the First Amendment did not

demand that the Government balance the message of

these posters by producing and distributing posters

encouraging Americans to refrain from engaging in

these activities”); Rust v. Sullivan, 500 U.S. 173, 194

(1991) (“When Congress established a National

Endowment for Democracy to encourage other

countries to adopt democratic principles, it was not

constitutionally required to fund a program to

encourage competing lines of political philosophy such

as communism and fascism.” (citation omitted)).

Third, as a logical extension of the first two

rationales, this Court reasoned that the government

must be free to disassociate itself from viewpoints that

it does not wish to endorse. 2 See Pleasant Grove City,

Utah v. Summum, 555 U.S. 460, 471 (2009) (“It

certainly is not common for property owners to open

up their property for the installation of permanent

monuments that convey a message with which they do

not wish to be associated.”).

Applying these three principles in Johanns, this

Court held, for the first time, 3 that the “[g]overnment’s

own speech . . . is exempt from First Amendment

scrutiny.” 4 Johanns v. Livestock Mktg. Ass'n, 544 U.S.

550, 553 (2005); Summum, 555 U.S. at 470 (“The Free

Speech Clause restricts government regulation of

private speech; it does not regulate government

speech.”). In the absence of First Amendment

scrutiny, this Court has said that democratic

accountability and other Constitutional provisions,

such as the establishment clause, operate as

restraints on the government speech doctrine. See

Summum, 555 U.S. at 468–69 (citing Bd. of Regents of

2 See Daniel J. Hemel, Lisa Larrimore Ouellette, Public

Perceptions of Government Speech, 2017 Sup. Ct. Rev. 33, 41–

42 (2017).

Rethinking the Government

Speech Doctrine, Post-Trump, 2022 U. Ill. L. Rev. 1943 (2022).

4 Erwin Chemerinsky, Free Speech Dead Zones, 2022 U. Ill. L.

3 Michael Kang & Dr. Jacob Eisler,

Rev. 1695, 1704 (2022).

U. of Wisconsin System v. Southworth, 529 U.S. 217,

235 (2000)).

In Walker v. Texas Div., Sons of Confederate

Veterans, Inc., 576 U.S. 200 (2015), this Court built

upon its holding in Johanns and set forth three factors

to guide the government speech doctrine analysis:

[1] the history of the expression at issue;

[2] the public’s likely perception as to who (the

government or a private person) is speaking; and

[3] the extent to which the government has

actively shaped or controlled the expression.”

Shurtleff v. City of Boston, Massachusetts, 596

U.S. 243, 252 (2022) (citing Walker, 576 U.S. at 252).

The Government Speech Doctrine

is Centered on Distinguishing

“Government Speech” from

“Private Speech.”

For each of the cases discussed above that

defined the contours of the government speech

doctrine, the facts concerned a private individual or

entity who sought to use government channels as a

medium to publicly express the message of their

choosing. See Shurtleff, 596 U.S. at 248 (organization

sought to fly their Christian flag in front of city hall);

Matal, 582 U.S. at 223 (band sought to trademark a

derogatory band name with the Patent and

Trademark Office); Walker, 576 U.S. at 203–04

(organization sought to create a state license plate

design featuring the Confederate flag); Summum, 555

U.S. at 464 (organization sought to erect a monument

in a city party).

None of these cases, however, involved the

specific application of the government speech doctrine

currently before the Court. Here, the issue is not

whether the speech at issue is better characterized as

private speech or government speech; rather, the issue

is whether the government may use its speech to

coerce private businesses to disassociate with political

advocacy groups that the government disfavors. See

National Rifle Association of America v. Vullo, 49

F.4th 700, 714–19 (2d Cir. 2022), cert. granted in

part, 144 S. Ct. 375 (2023).

The Government Speech Doctrine

has Been a Consistent Source of

Concern.

Throughout this Court’s jurisprudence on the

government speech doctrine, Justices have expressed

trepidation regarding the validity of its application in

certain contexts and its potential to permit otherwise

unconstitutional viewpoint discrimination. See

generally Matal, 582 U.S. at 247–54 (Kennedy, J.,

concurring in part and concurring in the judgment);

Summum, 555 U.S. at 481–82 (Stevens, J.,

concurring), 484–85 (Breyer, J., concurring), 485–87

(Souter, J., concurring in the judgment); Keller, 496

U.S. at 10 (Rehnquist, C.J., referring to the “so-called

‘government speech’ doctrine.”).

In his Summum concurrence, Justice Stevens

expressed that the Court’s prior “decisions relying on

the recently minted government speech doctrine to

uphold government action have been few and, in my

view, of doubtful merit.” Summum, 555 U.S. at 481

(Stevens, J., concurring). Justice Stevens further

explained that, while he did not intend “to indicate

agreement with our earlier decisions,” he joined in the

Court’s opinion because, “[u]nlike other decisions

relying on the government speech doctrine, our

decision in this case excuses no retaliation for, or

coercion of, private speech.” Id.

And Justice Stevens was not alone in his

skepticism. Not only did Justice Ginsberg join in his

concurrence, but Justices Breyer and Souter issued

separate concurrences that echoed similar concerns.

See Summum, 555 U.S. at 484–85 (Breyer, J.,

concurring), 485–87 (Souter, J., concurring in the

judgment). Justice Breyer’s concurrence clarified that

he joined the Court’s opinion “on the understanding

that the ‘government speech doctrine is a rule of

thumb, not a rigid category.” Id. at 484 (Breyer, J.,

concurring) (emphasis added). He further advised that

when resolving First Amendment cases, the Court

“must

sometimes

look

beyond

initial

categorization. And, in doing so, it helps to ask

whether a government action burdens speech

disproportionately in light of the action’s tendency to

further a legitimate government objective.” Id. As a

further note of caution, Justice Souter emphasized

that “[b]ecause the government speech doctrine, as

Justice S[tevens] notes . . . , is ‘recently minted,’ it

would do well for us to go slow in setting its bounds,

which will affect existing doctrine in ways not yet

explored.” Id. at 485–87 (Souter, J., concurring in the

judgment).

In recent years, this Court has continued to

refine the role of the government speech doctrine in

First Amendment law. Eight years after Summum

was decided, in Matal v. Tam, Justice Kennedy felt it

necessary to write separately in order to “explain[] in

greater detail why the First Amendment’s protections

against viewpoint discrimination” applied to the

trademark at issue, and to “submit[] further that the

viewpoint

discrimination

rationale

renders

unnecessary any extended treatment of other

questions of law raised by the parties.” Matal, 582 U.S.

at 247 (Kennedy, J., concurring in part and concurring

in the judgment). In Justice Kennedy’s view,

The danger of viewpoint discrimination

is that the government is attempting to

remove certain ideas or perspectives

from a broader debate. That danger is all

the greater if the ideas or perspectives

are ones a particular audience might

think offensive, at least at first hearing.

An initial reaction may prompt further

reflection, leading to a more reasoned,

more tolerant position.

...

It is telling that the Court’s precedents

have recognized just one narrow

situation

which

viewpoint

discrimination is permissible: where the

government itself is speaking or

recruiting others to communicate a

message on its behalf. The exception is

necessary to allow the government to

stake out positions and pursue policies.

But it is also narrow, to prevent the

government from claiming that every

government program is exempt from the

First Amendment.

...

A law that can be directed against speech

found offensive to some portion of the

public

can

turned

against

minority and dissenting views to the

detriment of all. The First Amendment

does not entrust that power to the

government’s benevolence. Instead, our

reliance must be on the substantial

safeguards of free and open discussion in

a democratic society.

Id. at 250, 253–54 (internal citations omitted).

More recently, in Shurtleff, Justice Alito also

expressed concern that the current body of

government speech precedent, taken to its logical

extreme, might permit viewpoint discrimination:

[T]he doctrine is based on the notion that

governmental communication . . . do[es]

not normally “restrict the activities of …

persons acting as private individuals.”

[quoting Rust, 500 U.S. at 198–99; other

citations omitted.] So government speech

in the literal sense is not exempt from

First Amendment attack if it uses a

means that restricts private expression

in a way that “abridges” the freedom of

speech, as is the case with compelled

speech. Were it otherwise, virtually

every government action that regulates

private speech would, paradoxically,

qualify

government

speech

unregulated by the First Amendment.

Naked censorship of a speaker based on

viewpoint, for example, might well

constitute “expression” in the thin sense

that it conveys the government's

disapproval of the speaker's message.

But plainly that kind of action cannot fall

beyond the reach of the First

Amendment.

596 U.S. at 269 (Alito, J., concurring in the judgment)

(emphasis added). With this in mind, Justice Alito

proposed the following rule:

[T]o establish that expression constitutes

government speech exempt from First

Amendment attack, the government

must satisfy two conditions. First, it

must show that the challenged activity

constitutes government speech in the

literal sense—purposeful communication

of a governmentally determined message

by a person acting within the scope of a

power to speak for the government.

Second, the government must establish it

did not rely on a means that abridges the

speech of persons acting in a private

capacity. It is only then that “the Free

Speech Clause has no application.”

Id. at 269–70 (emphasis added).

The Government Speech Doctrine

Cannot Be Employed to

Discriminate Against Disfavored

Protected Associations.

In Summon, the Court predicted the democratic

process would ensure government speech did not

swallow the First Amendment. 555 U.S. at 468–69

(highlighting that the government is accountable to

the voters for its speech). But in joining the opinion,

both Justice Stevens (with whom Justice Ginsburg

joined) and Justice Breyer expressed their concern

that the government speech doctrine might excuse

“retaliation for, or coercion of, private speech.” Id. at

481 (Stevens, J., concurring); see also id. 484 (Breyer,

J., concurring) (in the context of analyzing

“government speech,” suggesting that “it helps to ask

whether a government action burdens speech

disproportionately in light of the action’s tendency to

further a legitimate government objective”).

If the democratic process is all that stands in

the way of the government’s steamrolling First

Amendment speech through its own speech, then

there is no assurance that speech from “minority,

dissident groups” will enjoy First Amendment

protection. See Button, 371 U.S. at 429; see also Helen

Norton, The Equal Protection Implications of

Government’s Hateful Speech, 54 Wm. & Mary L. Rev.

159, 170 (2012) (explaining that government speech

“often targets unpopular minorities in situations when

ordinary political accountability measures provide no

meaningful remedy”).

Consider, for instance, some of the potential

ramifications of the Second Circuit’s opinion in this

case. See Vullo, 49 F.4th at 714–19. Imagine that

Massachusetts wished to target the speech of pro-life

healthcare organizations for political reasons. Rather

than pass a regulation restricting their speech, which

would be unconstitutional on its face, the

Massachusetts Department of Public Health could

simply meet with healthcare providers and insurers,

convey its concern for the potential “reputational

harm” risked by their continued association with prolife groups, and imply that such support could lead to

unfavorable regulatory scrutiny and a loss of state

contracts. Would the insurance companies and

healthcare providers—who presumably would rather

protect their bottom-line and avoid adverse regulatory

consequences than take a political stand on abortion—

reasonably be expected to decline such a request by

the state? After all, it is not their speech being

restricted.

Or suppose that California state officials

privately met with executives of major corporations

and conveyed their displeasure over the corporations’

donations to groups advocating for immigration

reform, hinting that their continued support for such

organizations could harm the corporations’ standing

with state agencies and negatively affect their public

image. Would one reasonably expect a corporation

such as the Walt Disney Company to risk adverse

regulatory consequences to protect the speech of an

organization advocating for immigration reform?

Each of these scenarios, like the case sub judice,

presents viewpoint discrimination by other means.

And the Second Circuit’s test of whether the

government speech “attempts to convince [or]

attempts to coerce,” Vullo, 49 F.4th at 715, has proven

unable to protect the First Amendment rights of

minority groups.

The hypothetical situations above reveal a

perplexing paradox that emerges from this Court’s

precedent developing the government speech doctrine:

“To satisfy traditional First Amendment tests, the

government must show that it is not discriminating

against a viewpoint. And yet if the government shows

that it is condemning or supporting a viewpoint, it

may be able to invoke the government speech defense

and thereby avoid constitutional scrutiny all

together.” 5 Consequently, in such situations, a rigid

application of the government speech doctrine

threatens to “reward[] what the rest of the First

Amendment forbids: viewpoint discrimination against

private speech.” 6

This Court need not look further than its own

decisions to craft a rule that preserves viewpoint

neutrality while maintaining government speech in

certain contexts. As previously stated, a blending of

Justice Kennedy’s concurrence in Matal, 582 U.S. at

5 Joseph Blocher, Viewpoint Neutrality and Government

Speech, 52 B.C. L. Rev. 695, 695 (2011) (emphasis original).

6 Id.

248 (Kennedy, J., concurring in part and concurring in

the judgment), and Justice Alito’s concurrence in

Shurtleff, 596 U.S. at 269–70 (Alito, J., concurring in

the judgment), provides a rule that both preserves this

Court’s commitment to viewpoint neutrality and

allows the government an ample degree of latitude to

speak as is necessary to accomplish their policy goals.

Specifically, this rule would explicitly recognize

that when the government is speaking directly, 7 the

government speech doctrine is available as a defense

to a claim of viewpoint discrimination. To establish

such a defense, the government must show:

(1) “that the challenged activity

constitutes government discrimination

the

literal

sense—purposeful

communication of a governmentally

determined message by a person acting

within the scope of power to speak for the

government;” and

(2) that its speech did not target the

speech of persons acting in a private

capacity “for disfavor based on the views

expressed.”

See Shurtleff, 596 U.S. at 269–70; Matel, 582 U.S. at

248 (Kennedy, J., concurring in part and concurring in

the judgment).

7 As opposed to the Summum and Bryant line of cases, where

the government is speaking indirectly by providing a channel for

private speech.

Were such a rule applied to the facts of this

case, the analysis would be straightforward.

Respondent’s speech almost certainly would satisfy

prong one of the government speech defense, as her

speech reflects a “purposeful communication of a

governmentally determined message by a person

acting within the scope of power to speak for the

government.” See Shurtleff, 596 U.S. at 269–70. But

based on Respondent’s extensive and unapologetic

targeting of the NRA because she disagrees with its

message, her speech would almost certainly fail prong

two. See Shurtleff, 596 U.S. at 269–70; Matel, 582 U.S.

at 248. Thus, the government speech defense would be

unavailable, and the NRA’s First Amendment claim

would be evaluated under this Court’s traditional

viewpoint discrimination analysis. See generally

Rosenberger v. Rector and Visitors of U. of Virginia,

515 U.S. 819, 828–30 (1995). 8

8 This analysis would also provide a stage to consider the

unstated but apparent motive underlying the government’s

action before ruling that it is unconstrained by the First

Amendment. See Elena Kagan, Private Speech, Public Purpose:

The Role of Governmental Motive in First Amendment Doctrine,

63 U. Chi. L. Rev. 413, 416 (1996).

CONCLUSION

For the foregoing reasons, the Court should

revise its test for government speech that abridges

speech protected by the First Amendment, and should

reverse the Second Circuit’s decision below.

Respectfully submitted,

DAVID A. WARRINGTON

Counsel of Record

GARY M. LAWKOWSKI

DHILLON LAW GROUP

INC.

2121 Eisenhower Ave.

Suite 608

Alexandria, VA 22314

(703) 574-1206

dwarrington@

dhillonlaw.com

glawkowski@

dhillonlaw.com

January 2024

JOSIAH CONTARINO

ANTHONY J. FUSARO, JR.

DHILLON LAW GROUP

INC.

50 Park Pl.

Suite 1105

Newark, NJ 07102

(917) 423-7221

jcontarino@

dhillonlaw.com

afusaro@

dhillonlaw.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.