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

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 FOR THE STATE OF MONTANA,

22 OTHER STATES, AND THE ARIZONA

STATE LEGISLATURE AS AMICI CURIAE IN

SUPPORT OF PETITIONER AND REVERSAL

_____________

AUSTIN KNUDSEN

Attorney General

PETER M. TORSTENSEN, JR.

Deputy Solicitor General

Counsel of Record

CHRISTIAN B. CORRIGAN

Solicitor General

MONTANA DEPARTMENT

OF JUSTICE

215 N. Sanders Street

Helena, MT 59601

peter.torstensen@mt.gov

(406) 444-2026

Counsel for Amicus Curiae State of Montana

(Additional Signatories listed on signature page)

i

TABLE OF CONTENTS

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

INTEREST OF AMICI CURIAE ............................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT .............................................................. 2

ARGUMENT .............................................................. 5

I.

Bantam Books’ contextual approach for in-formal censorship claims requires courts to

distinguish between permissible persuasion

and impermissible coercion. ................................ 5

A. Bantam Books forbids government actors

from using implicit threats and other coercive practices to stifle protected speech. ....... 6

B. Until recently, lower courts evaluated informal censorship claims using Bantam

Books’ context-specific analysis..................... 8

C. Recently, federal courts—including here—

have departed from Bantam Books’ context-specific inquiry, essentially requiring

explicit threats. ............................................ 17

II. Vullo’s and VDARE’s expansion of the government speech doctrine risks eroding First

Amendment safeguards for political speech. .... 27

CONCLUSION ......................................................... 33

ADDITIONAL SIGNATORIES ................................ 36

ii

TABLE OF AUTHORITIES

Cases

Am. Fam. Ass’n, Inc. v. City & Cnty. of S.F.,

277 F.3d 1114 (9th Cir. 2002) ................... 11, 12, 15

Backpage.com, LLC v. Dart,

807 F.3d 229 (7th Cir. 2015)

.................................... 5, 9, 10, 13, 14, 23, 27, 34, 35

Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963)

.............................. 2, 3, 5-8, 13-18, 20, 23, 24, 25, 28

Blankenship v. Manchin,

471 F.3d 523 (4th Cir. 2006) ................................. 10

Blum v. Yaretsky,

457 U.S. 991 (1982) ....................................... 3, 4, 18

Bond v. Floyd,

385 U.S. 116 (1966) ............................................... 16

Carlin Commc'ns, Inc. v. Mountain States Tel. &

Tel. Co., 827 F.2d 1291 (9th Cir. 1987) ................. 13

Clark v. Cmty. for Creative Non-Violence,

468 U.S. 288 (1984) ............................................... 30

Columbia Broad. System v. Democratic Nat'l

Comm., 412 U.S. 94 (1973) .................................... 29

iii

District of Columbia v. Wesby,

583 U.S. 48 (2018) ........................................... 29, 30

Garcetti v. Ceballos,

547 U.S. 410 (2006) ............................................... 30

Garcia v. City of Trenton,

348 F.3d 726 (8th Cir. 2003) ................................. 10

Garrison v. Louisiana,

379 U.S. 64 (1964) ................................................... 1

Hammerhead Enters. v. Brezenoff,

707 F.2d 33 (2d Cir. 1983) ................... 10, 11, 15, 21

Iancu v. Brunetti,

139 S. Ct. 2294 (2019) ....................................... 1, 28

Johanns v. Livestock Mktg. Ass'n,

544 U.S. 550 (2005) ......................................... 29, 30

Kennedy v. Warren,

66 F.4th 1199 (9th Cir. 2023) .................... 24, 26, 27

LSO, Ltd. v. Stroh,

205 F.3d 1146 (9th Cir. 2006) ......................... 14, 15

Matal v. Tam,

137 S. Ct. 1744 (2017) ........................... 4, 27, 28, 29

iv

Missouri v. Biden,

83 F.4th 350 (5th Cir. 2023) ............................ 24, 25

Murthy v. Missouri, No. 23-411 (U.S. Oct. 20,

2023)................................................................... 1, 24

NLRB v. Gissel Packing, Co.,

395 U.S. 575 (1969) ........................... 2, 3, 22, 23, 27

Norwood v. Harrison,

413 U.S. 455 (1973) ............................................... 15

O’Handley v. Weber,

62 F.4th 1145 (9th Cir. 2023) ................................ 32

Okwedy v. Molinari,

333 F.3d 339 (2d Cir. 2003) ............... 8, 9, 13, 14, 15

Palko v. Connecticut,

302 U.S. 319 (1937) ................................................. 1

Penthouse Int'l, Ltd. v. Meese,

939 F.2d 1011 (D.C. Cir. 1991).. 2, 12, 13, 16, 22, 23

Pleasant Grove City v. Summum,

555 U.S. 460 (2009) ............................. 28, 29, 30, 33

Rattner v. Netburn,

930 F.2d 204 (2d Cir. 1991) ................................. 8, 9

R.C. Maxwell Co. v. Borough of New Hope,

735 F.2d 85 (3d Cir. 1984) ................... 11, 15, 22, 23

v

Rosenberger v. Rector & Visitors of the Univ. of

Va., 515 U.S. 819 (1995) ........................................ 28

Rust v. Sullivan,

500 U.S. 173 (1991) ............................................... 28

Shurtleff v. City of Boston,

142 S. Ct. 1583 (2022) ........... 1, 4, 28, 29, 30, 31, 33

Thornhill v. Alabama,

310 U.S. 88 (1940) ................................................. 33

VDARE Found. v. City of Colo. Springs,

11 F.4th 1151 (10th Cir. 2021)

....................................... 15, 17-20, 23, 27, 28, 31, 34

Walker v. Texas Div., Sons of Confederate

Veterans, Inc., 576 U.S. 200 (2015) ........... 28, 29, 30

Constitution and Statutes

U.S. Const. amend. I ................................................. 29

Other Authorities

Br. of Amicus Curiae ACLU in Support of Pl.’s

Opp. to Def.’s Mot. to Dismiss, Nat’l Rifle Ass’n

v. Cuomo, No. 18-cv-0566, ECF No. 49-1

(N.D.N.Y. Aug. 24, 2018) ................................... 4, 33

Will Duffield, Jawboning Against Speech, CATO

POL’Y ANALYSIS, no. 934, Sept. 12, 2022 ......... 15, 34

vi

Jennifer Jones & Mayze Teitler, Missouri v. Biden:

An Opportunity to Clarify Messy First Amendment

Doctrine, KNIGHT FIRST AMEND. INST. (Sept. 27,

2023), https://perma.cc/8PTF-3HRK ......................... 16

Letter from Sean D. Reyes, Att’y Gen. Utah &

Ken Paxton, Att’y Gen. Texas, to Gary Retelny,

President & CEO, Institutional S’holder Servs.,

Inc., & Kevin Cameron, Exec. Chairman, Glass,

Lewis & Co., (Jan. 23, 2023),

https://perma.cc/3N7A-ALV6 ................................ 16

Letter from Karl Racine, Att’y Gen. D.C. to Ann

Lesser, Vice President – Lab., Emp., and

Elections, Am. Arb. Ass’n (Nov. 12, 2019),

https://perma.cc/39L2-394P ............................ 16, 17

INTEREST OF AMICI CURIAE 1

Freedom of speech is “the matrix, the indispensable condition, of nearly every other form of freedom.”

Palko v. Connecticut, 302 U.S. 319, 327 (1937); see also

Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964)

(“[S]peech concerning public affairs is more than selfexpression; it is the essence of self-government.”). But

that freedom is “under attack.” Iancu v. Brunetti,

139 S. Ct. 2294, 2302-03 (2019) (Alito, J., concurring).

Even a cursory review of this Court’s docket—which

includes a case addressing a related First Amendment

state action issue arising when federal officials pressure social media platforms to suppress disfavored

speech 2—shows that free speech concerns are top of

mind. Beyond this Court’s docket, examples abound

of the waning influence of our historically robust commitment to free-speech values, including episodes of

students across the country shouting down and disrupting events with controversial speakers.

When attacks on that freedom come in the form of

government expression that abridges or regulates private speech, federal courts must police the lines

between genuine government speech and “surreptitious[] regulation of private speech.” Shurtleff v. City

of Boston, 142 S. Ct. 1583, 1595-96 (2022) (Alito, J.,

concurring in the judgment) (citation and quotation

marks omitted). And carefully drawing that line is vital for state officials, who may still advise regulated

1 No counsel for any party authored this brief, in whole or in part.

No person or entity other than amici contributed monetarily to

its preparation or submission.

2 See Murthy v. Missouri, No. 23-411 (U.S. Oct. 20, 2023).

2

parties of their obligation to comply with applicable

laws and even forcefully criticize those parties’ views

and policy positions without violating the First

Amendment. See Bantam Books, Inc. v. Sullivan,

372 U.S. 58, 71-72 (1963); Penthouse Int’l, Ltd. v.

Meese, 939 F.2d 1011, 1015 (D.C. Cir. 1991).

To ensure that a vibrant and robust right of free

private expression remains “ringed about with adequate bulwarks,” see Bantam Books, 372 U.S. at 66,

the States of Montana, Alabama, Alaska, Arkansas,

Georgia, Idaho, Iowa, Kansas, Kentucky, Louisiana,

Missouri, Nebraska, New Hampshire, North Dakota,

Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia, Wyoming, and

the Arizona State Legislature file this amicus brief in

support of petitioner.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case concerns troubling allegations of governmental abuse of power. As plausibly alleged, Maria

Vullo, the head of New York’s Department of Financial

Services (“DFS”), a state agency tasked with sweeping

regulatory authority over financial institutions, leveraged her official authority to stifle the NRA’s

constitutionally protected political speech.

Even

though Vullo’s politically motivated campaign involved press releases, official regulatory guidance, and

ongoing investigations that targeted financial institutions doing business with the NRA, she steered clear

of any explicit threats in these communications—at

least to the “disinterested ear.” NLRB v. Gissel

3

Packing, Co., 395 U.S. 575, 619 (1969). But behind

closed doors, Vullo threatened several insurance executives with increased regulatory scrutiny if they

continued providing services to the NRA. Pet’r.Br.712. And the financial institutions picked up the notso-subtle hint: drop the NRA or else. See Pet’r.Br.3637, 42. After Bantam Books, these “informal sanctions” cannot evade First Amendment scrutiny. See

372 U.S. at 66-67. Yet the Second Circuit’s decision

did just that: sidestepping Bantam Books’ clear instruction and enabling state officials to target and

crackdown on their political opponents’ protected

speech.

Bantam Books rejected a myopic focus on whether

officials expressly threaten adverse consequences, instead focusing on whether officials’ statements and

conduct cross the line between permissible persuasion

and impermissible coercion. To do that, courts consider all relevant context, including the official’s

actual (or apparent) regulatory authority, the specific

language in the official’s statements, and whether the

targeted individuals or entities reasonably perceive

the statements as threats. Faithful application of

Bantam Books’ context-based inquiry yields a clear result here: Vullo’s politically motivated campaign

against the NRA crossed the line from persuasion to

impermissible coercion. 3

3 Besides coercion, government officials also become responsible

for private conduct when they cross the line from mere persuasion to “significant encouragement.” See Blum v. Yaretsky,

4

Despite this Court’s clear warning to “exercise

great caution before extending [the] governmentspeech precedents,” the Second Circuit charged ahead

and demonstrated that doctrine’s “susceptib[ility] to

dangerous misuse.” Matal v. Tam, 137 S. Ct. 1744,

1758 (2017). Rather than safeguarding private expression against government regulation, the decision

below subtly shifts the emphasis to safeguarding government expression, opening the door for governments

to use the “government-speech doctrine … as a cover

for censorship.” Shurtleff, 142 S. Ct. at 1595 (Alito, J.,

concurring in the judgment). In its wake, recent federal court decisions have pushed that door wide open.

The Second Circuit’s decision gives government officials license to financially cripple their political

opponents, or otherwise stifle their protected speech—

whether those rivals advocate for environmental protections, school choice, abortion rights, religious

liberty, or anything else. As the ACLU observed, the

decision gives “[p]ublic officials … a readymade playbook for abusing their regulatory power to harm

disfavored advocacy groups without triggering judicial

scrutiny.” 4 This Court should reverse.

457 U.S. 991, 1004 (1982). Whether or not Vullo crossed that

line, she certainly crossed the line from persuasion to coercion.

4 Br. of Amicus Curiae ACLU in Support of Pl.’s Opp. to Def.’s

Mot. to Dismiss, Nat’l Rifle Ass’n v. Cuomo, No. 18-cv-0566, ECF

No. 49-1 (N.D.N.Y. Aug. 24, 2018) (“ACLU.Br.”), at 4.

5

ARGUMENT

I. Bantam Books’ contextual approach for informal censorship claims requires courts to

distinguish between permissible persuasion

and impermissible coercion.

Sixty years ago, this Court held that a state commission, without formal authority to “regulate or

suppress obscenity,” violated the First Amendment

when it sought to “suppress[] … publications deemed

‘objectionable’” through “informal sanctions,” such as

the “threat of invoking legal sanctions and other

means of coercion, persuasion, and intimidation.”

Bantam Books, 372 U.S. at 66-67. Since then, federal

courts evaluate informal censorship claims by distinguishing between “attempts to convince” and

“attempts to coerce.” Backpage.com, LLC v. Dart,

807 F.3d 229, 230 (7th Cir. 2015). To draw those distinctions, courts weigh the defendants’ actual or

apparent regulatory authority over the targeted entity, the language used in the alleged threat, and

whether the targeted entity reasonably perceived the

statement as a threat. See id. at 230-32; see also infra

Sect.I.B.

But the Second Circuit’s decision below flipped this

contextual approach on its head, focusing on whether

Vullo’s statements explicitly threatened adverse regulatory consequences. See Appendix, Pet. for Writ of

Certiorari (“App.”), at 28-29, Nat’l Rifle Ass’n of Am. v.

Vullo, No. 842 (U.S. Feb, 7, 2023) (Vullo’s remarks

weren’t threatening because they “were written in an

evenhanded, non-threatening tone,” “employed words

6

intended to persuade rather than intimidate,” and

“did not refer to any pending investigations or possible

regulatory action”). Yet the court dismissed the relevance of Vullo’s “direct regulatory authority over the

target audience” and the likelihood that some “may

have perceived [her] remarks as threatening.” See

App.29. In effect, the court required NRA to point to

explicit threats to support its claim. And that myopic

focus on explicit threats departs from Bantam Books’

contextual approach and hands government officials a

powerful tool to crack down on disfavored political

speech.

A. Bantam Books forbids government actors

from using implicit threats and other coercive practices to stifle protected speech.

In Bantam Books, four New York publishers and a

wholesale distributor raised a First Amendment challenge to a state commission’s practice of investigating

and declaring certain publications “objectionable for

sale.” 372 U.S. at 61. As part of its practice, the commission issued notices to distributors on official

letterhead, flagging certain publications as “objectionable”; thanking the distributor for his “cooperation”;

noting its obligation to refer “purveyors of obscenity”

for prosecution; and advising the distributor that a list

of objectionable publications had been circulated to local police departments. Id. at 61-63 & n.5. After

receiving the commission’s notices, local police officers

often visited the distributor to see what actions he had

taken. Id. at 63. And the distributor complied to

“avoid becoming involved in a ‘court proceeding’ with

7

a ‘duly authorized organization,” ceasing further circulation of the listed publications and refusing to fill

new orders. Id.

Even though the commission had no authority to

“regulate or suppress obscenity” and it never expressly

threatened to institute criminal proceedings against

the distributor, this Court held that the commission’s

practices violated the First Amendment. See id. at 6568. It “look[ed] through forms to the substance” and

concluded that the commission’s use of informal methods to suppress the “publications [it] deemed

‘objectionable’”—i.e., “threat[s],” “coercion,” “intimidation”—violated the First Amendment. Id. at 66-67.

Nor did the lack of explicit threats, or the distributor’s

“free[dom]” to ignore the commission’s notices, render

the distributor’s compliance with the commission’s directives voluntary. Id. at 68. That is, because

“[p]eople do not lightly disregard public officers’

thinly-veiled threats to institute criminal proceedings,” “[i]t would be naïve to credit the State’s

assertion that these blacklists are in the nature of

mere legal advice.” See id. at 68-69.

Yet the Court was careful to distinguish between

“scheme[s] of state censorship” and “private consultation between law enforcement officers and

distributors” designed to advise the distributors of

their obligation to comply with applicable laws. See

id. at 71-72 (“[private] consultation … genuinely undertaken with the purpose of aiding [a target entity]

to comply with [the] laws and avoid prosecution … [does] not [impair] the full enjoyment of First

8

Amendment freedoms”). Government officials need

not “renounce all informal contacts with persons suspected of violating [the] law[],” see id., but they must

avoid the temptation to use “instruments of regulation” divorced from the procedural safeguards of

applicable law, see id. at 69-70. Even so, government

officials must be able to alert regulated parties, publicly or privately, about potential violations of the law.

B. Until recently, lower courts evaluated informal censorship claims using Bantam

Books’ context-specific analysis.

Federal courts evaluating whether government officials have employed coercive means to stifle

protected expression “look through forms to the substance,” and focus on whether, in context, the official’s

words and conduct can be reasonably interpreted to

threaten adverse consequences. See id. at 67.

1. For example, in Okwedy v. Molinari, a public official sent a letter to a private entity, asking it to

remove a controversial message from one of its billboards. 333 F.3d 339, 341-42 (2d Cir. 2003). But in

that letter, the official invoked his formal title, hinted

that the entity “derive[d] substantial economic benefits from [other billboards]” in the area, and asked the

entity to contact his “legal counsel and Chair of my

Anti-Bias Task Force.” Id. Based on that letter, the

Second Circuit found that the target entity could have

reasonably believed that the official “intended to use

his official power to retaliate against it if it did not respond positively to his entreaties.” Id. at 344; see also

Rattner v. Netburn, 930 F.2d 204, 209-10 (2d Cir.

9

1991) (letter to target entity reasonably viewed as

“veiled threat of boycott or reprisal” and target entity

perceived it as such). It didn’t matter that the official

“lacked direct regulatory control over the billboards.”

Okwedy, 333 F.3d at 344. Instead, the question was

whether the defendant “threaten[ed] to employ coercive state power to stifle protected speech,” whether

through “direct regulatory or decisionmaking authority” or “in some less-direct form.” Id.

Likewise, in Backpage.com, the Sheriff sent a letter

to Visa and Mastercard demanding that they cease

processing payments for ads on Backpage because

some of those “ads might be for illegal sex-related

products or services.” 807 F.3d at 230. That letter—

sent on official letterhead—included an ominous reference to the federal money laundering statute,

suggesting that the credit card companies could be

subject to prosecution if they didn’t comply. Id. at 231,

234. Despite the Sheriff’s lack of formal authority to

regulate the credit card companies, the Seventh Circuit found that the Sheriff’s misuse of official

authority to “attempt to intimidate” and “threaten[]”

those companies violated the First Amendment. See

id. at 236-37. Because the Sheriff’s letter requested a

“cease and desist,” invoked the companies’ legal obligations to cooperate with law enforcement, and

required ongoing contact with the companies, the

court found that the Sheriff’s actions reasonably implied that the companies would face some government

sanction if they didn’t comply. See id. at 236. And

large companies like Visa and Mastercard face significant incentives to cave to such threats, especially

10

given the limited value of individual clients and the

potential for significant liability or negative press if

they refuse to comply. See id.

Similarly, in Blankenship v. Manchin, a coal executive publicly opposed a state constitutional

amendment supported by the state governor.

471 F.3d 523, 525-26 (4th Cir. 2006). The governor responded, in a newspaper article, that “tougher

scrutiny of [the executive’s] business affairs” was “justified.” Id. A few days after the measure failed, the

threat of added regulatory scrutiny materialized. Id.

at 526-27. In considering whether the governor’s remarks were “threatening, coercive, or intimidating,”

the Fourth Circuit examined the “full context” of his

remarks, including the increased regulatory scrutiny.

Id. at 528-30 (citation omitted). Given that context,

the court found that the governor’s remarks could reasonably be seen as “activat[ing] the ‘punitive

machinery of the government’ against” a political opponent, and thus “a threat of increased regulatory

scrutiny.” See id. at 529-30 (quoting Garcia v. City of

Trenton, 348 F.3d 726, 727-28 (8th Cir. 2003)).

2. Even when federal courts rejected informal censorship claims, they evaluated government officials’

statements in context. For example, in Hammerhead

Enters. v. Brezenoff, a New York government official

responsible for administering the provision of welfare

benefits sent a letter to several department stores urging them not to carry a board game ridiculing the socalled “welfare bureaucracy.” 707 F.2d 33, 34, 36-37

& n.2 (2d Cir. 1983). The Second Circuit held that the

11

official’s letter did not cross the line from persuasion

to coercion because it referred to no adverse consequences (at all) for noncompliance, the official had no

authority to impose sanctions on the department

stores, and no department store was even influenced

by the letter. See id. at 39-40.

Likewise, in R.C. Maxwell Co. v. Borough of New

Hope, a city council urged the owner of a billboard site

to cancel its existing leases and remove the billboards.

735 F.2d 85, 86-87 & n.2 (3d Cir. 1984). The lessee

sued, claiming that the city council’s “exerti[on of] its

sovereign power, coerced [the owner] to order the billboards removed,” in violation of its First Amendment

rights. Id. at 87. The Third Circuit held that the city

council’s statements and conduct did “not rise to the

level of state-coerced action.” See id. at 88-89. Critical

to its analysis was the city council’s lack of regulatory

authority or conduct suggesting adverse consequences

would follow noncompliance. See id. And the recipient

of the alleged threats denied feeling “coerced or intimidated,” but claimed that his decision was made to

“secure the good graces of the [city council].” Id. (actions taken “to create a receptive climate for future

[business] plans do[] not rise to the level of state-coerced action”). The city council’s letters, “devoid as

they were of any enforceable threats, amounted to

nothing more than a collective expression of the local

community’s distaste for the billboards.” Id. at 89.

Similarly, in Am. Fam. Ass’n, Inc. v. City & Cnty.

of S.F., the city adopted a resolution criticizing plaintiff’s advertising campaign and urging local television

12

stations not to air those messages. 277 F.3d 1114,

1119-20 (9th Cir. 2002). Apart from criticizing plaintiff’s speech and urging television stations not to air it,

“there was no sanction or threat of sanction” if the television stations “[ignored the] request and aired the

advertisements.” Id. at 1125. Nor was there evidence

that local television stations perceived the resolution

as a threat. See id. Because “public officials may criticize practices that they would have no constitutional

ability to regulate, so long as there is no actual or

threatened imposition of government power or sanction,” the Ninth Circuit rejected plaintiff’s First

Amendment claim. Id. at 1124-25.

And in Penthouse Int’l, Ltd. v. Meese, a commission

tasked with studying the societal effects of pornography—without direct legal or regulatory authority—

sent a letter giving companies accused of distributing

pornography the opportunity to respond to those allegations before the commission drafted the final report

and identified distributors. 939 F.2d 1011, 1012-13

(D.C. Cir. 1991). Recognizing that the commission

may have come “close to implying more authority than

it had or explicitly claimed,” the D.C. Circuit considered the commission’s statements and conduct in

context and found no “threat[] to use the coercive

power of the state against the recipients of the letter.”

Id. at 1015. The Court also rejected the argument that

the letter was an implicit threat to blacklist distributors because, at most, the commission threatened

potential embarrassment. See id. at 1016 (expressing

doubt that without a threatened sanction “the

13

government’s criticism or effort to embarrass the distributor threatens anyone’s First Amendment

rights.”).

3. Neither direct regulatory authority nor explicit

threats are necessary to state an informal censorship

claim. But to be sure, the presence of either (or both)

makes the inquiry easier. Even so, the question for

courts is whether a government official’s statements

and conduct reasonably suggest that a target entity’s

failure to comply with his or her requests will be met

with some form of coercive state power. After all, the

commission in Bantam Books, the public official in

Okwedy, and the Sheriff in Backpage.com all lacked

direct regulatory authority over their targets, but the

courts still found that each implicitly threatened their

targets with the use of some coercive state power. See

Bantam Books, 372 U.S. at 68-69; Okwedy, 333 F.3d

at 344; Backpage.com, 807 F.3d at 233, 236. If the lack

of direct regulatory authority didn’t preclude finding a

First Amendment violation in those cases, the existence of such authority only makes it easier to find one.

The same goes for explicit threats. There’s little

doubt that courts will find impermissible coercion

when an official refers to adverse consequences—like

an “or else” statement—for failure to comply. See, e.g.,

Carlin Commc’ns, Inc. v. Mountain States Tel. & Tel.

Co., 827 F.2d 1291, 1295 (9th Cir. 1987) (prosecutor

“exercised coercive power” by threatening telecommunications company with prosecution if it failed to

terminate communication company’s service). But

courts need not ignore government officials’ “thinly-

14

veiled threats” that noncompliance will be met with

some government sanction or official harassment.

Bantam Books, 372 U.S. at 68-69; see also Okwedy,

333 F.3d at 344; Backpage.com, 807 F.3d at 236-37.

Backpage.com highlights another relevant concern

with government officials threatening speech intermediaries. Given the limited value of an individual client

to a targeted entity’s bottom line—like Visa and Mastercard—the potential for significant liability or

negative press for retaining that client often pushes

speech intermediaries to cave to official’s threats,

when the disfavored speakers themselves have much

more incentive to resist. See 807 F.3d at 236 (arguing

that Visa and Mastercard may have “knuckle[d] under

to a sheriff” because “Backpage’s adult ads must have

been a small fraction of their overall revenue”). And

many, if not most, informal censorship cases involve

government officials targeting, not the disfavored

speaker, but the “necessary conduit” to the protected

speech. See LSO, Ltd. v. Stroh, 205 F.3d 1146, 1153

15

(9th Cir. 2006). 5 “Jawboning” 6 is no doubt tempting to

government officials: it enables them to “suppress disfavored

speech

by

dissuading

speech

intermediaries … from carrying it” without the need

for legislation, “essentially evad[ing] the First Amendment’s restrictions on government censorship.” 7 But

government officials may not implement a “scheme of

informal censorship” through speech intermediaries,

any more than they may directly censor speech they

oppose. See Bantam Books, 372 U.S. at 69 n.9, 71; see

also Norwood v. Harrison, 413 U.S. 455, 465 (1973)

(“‘[A] state may not induce, encourage or promote private persons to accomplish what it is constitutionally

forbidden to accomplish.’”).

Even with these concerns about government jawboning, “government officials need not renounce all

5 See also, e.g., Bantam Books, 372 U.S. at 61-63 & n.5 (targeted

distributor, not publishers); Okwedy, 333 F.3d at 341-42 (targeted billboard owner, not plaintiffs who designed controversial

message); Hammerhead, 707 F.2d at 36-37 & nn.1-2 (targeted department stores, not board game creator); R.C. Maxwell, 735 F.2d

at 86-87 & n.2 (targeted billboard owner, not lessee); American

Family, 277 F.3d at 1119-20 (targeted television stations, not

plaintiffs who created controversial ads); VDARE, 11 F.4th at

1157 (targeted resort hosting an event for a controversial group,

but not the group itself); App.3-4 (Vullo targeted financial institutions servicing disfavored group, but not the group itself).

6 Will Duffield, Jawboning Against Speech, CATO POL’Y ANALYSIS, no. 934, Sept. 12, 2022, at 2 (defining jawboning as “the use

of official speech to compel private action”).

7 See id. at 2, 5.

16

informal contacts with intermediaries.” 8 Bantam

Books clarified that “consultation genuinely undertaken with the purpose of aiding” an intermediary

does not flout First Amendment protections. 372 U.S.

at 71-72. Government officials remain free to express

their views and to forcefully criticize other speakers

and policy positions. Bond v. Floyd, 385 U.S. 116, 13536 (1966) (“The manifest function of the First Amendment in a representative government requires that

[government officials] be given the widest latitude to

express their views on issues of policy.”); see also, e.g.,

Penthouse, 939 F.2d at 1015 (government officials are

“free to speak out to criticize practices, even in a condemnatory fashion, that they might not have the

statutory or even constitutional authority to regulate”

(emphasis added)). And government officials do not violate the First Amendment simply because they warn

regulated parties that they will prosecute—even vigorously so—conduct in violation of the laws they have

lawful authority to enforce. 9

8 Jennifer Jones & Mayze Teitler, Missouri v. Biden: An Oppor-

tunity to Clarify Messy First Amendment Doctrine, KNIGHT FIRST

AMEND. INST. (Sept. 27, 2023), https://perma.cc/8PTF-3HRK.

9 State attorneys general often advise regulated entities, in public

letters, that certain practices and conduct may violate state or

federal law and encourage those entities to comply with those applicable laws. See, e.g., Letter from Sean D. Reyes, Att’y Gen.

Utah & Ken Paxton, Att’y Gen. Texas, to Gary Retelny, President

& CEO, Institutional S’holder Servs., Inc., & Kevin Cameron,

Exec. Chairman, Glass, Lewis & Co., (Jan. 23, 2023) (advising

entities of their obligations under federal and state laws governing proxy advisors), https://perma.cc/3N7A-ALV6; Letter from

Karl Racine, Att’y Gen. D.C. to Ann Lesser, Vice President – Lab.,

17

C. Recently, federal courts—including here—

have departed from Bantam Books’ context-specific inquiry, essentially requiring

explicit threats.

Over the past few years, two federal circuits have

departed from Bantam Books’ context-specific inquiry.

In their wake, other courts have subtly shifted the inquiry’s emphasis to things like “word choice,” “tone,”

and specific references to adverse consequences. The

result: enterprising political officials can jawbone

speech intermediaries with impunity so long as they

avoid making explicit threats.

1. In a split decision, the Tenth Circuit stepped out

of line first. See VDARE Found. v. City of Colo.

Springs, 11 F.4th 1151 (10th Cir. 2021). VDARE involved a political advocacy group that maintained

controversial views on U.S. immigration policy and reserved a resort in Colorado Springs for a future

conference. See id. at 1156. A few months after

VDARE reserved the resort, in August 2017, violence

erupted at a political rally in Charlottesville, Virginia.

Id. at 1157. Two days later, Colorado Springs’ mayor

issued a statement urging “local businesses to be attentive to the types of events they accept and the

groups they invite to our great city,” and he said that

Emp., and Elections, Am. Arb. Ass’n (Nov. 12, 2019) (advising entity of its obligations under state consumer protection and

disclosure laws), https://perma.cc/39L2-394P. This practice falls

squarely within Bantam Books' exception for “consultation genuinely undertaken with the purpose of aiding” a target entity’s

compliance with the law. See 372 U.S. at 71-72.

18

the city “will not provide any support or resources to

this event.” 10 Id. (emphasis added). The mayor didn’t

specify which event, but the next day, the resort announced that it would not host the conference and it

cancelled its contract with VDARE. Id. VDARE sued,

arguing that the mayor’s statement, considered in context, constituted a “‘threat’ or ‘warning’ to ‘local

businesses’ not to contract with VDARE,” and thus violated its First Amendment rights. See id. at 1057-60

(cleaned up). 11

10 The mayor issued the following statement:

The City of Colorado Springs does not have the authority

to restrict freedom of speech, nor to direct private businesses like the Cheyenne Mountain Resort as to which

events they may host. That said, I would encourage local

businesses to be attentive to the types of events they accept and the groups that they invite to our great city.

The City of Colorado Springs will not provide any support

or resources to this event, and does not condone hate

speech in any fashion. The City remains steadfast in its

commitment to the enforcement of Colorado law, which

protects all individuals regardless of race, religion, color,

ancestry, national origin, physical or mental disability, or

sexual orientation to be secure and protected from fear,

intimidation, harassment and physical harm.

VDARE, 11 F.4th at 1157.

11 VDARE relied on Blum v. Yaretsky, 457 U.S. 991 (1982), to find

that the mayor’s statement didn’t constitute state action. See

11 F.4th at 1160-61, 1164-68. In doing so, it considered whether

the mayor’s statement threated to use the state’s coercive power,

see id. at 1164-68—in effect, the same analysis required under

Bantam Books. See 372 U.S. at 66-69.

19

Rather than analyze the entire context of the

mayor’s statement to determine whether it constituted an implicit threat, the VDARE majority

painstakingly analyzed each sentence of that statement in isolation. See id. at 1164-68. But even if the

majority ostensibly considered the surrounding context, it labored to construe VDARE’s allegations in the

mayor’s favor. See id. And the majority’s finding that

the statement was not a “thinly veiled threat” anchored its conclusions that there was no state action

and that VDARE failed to allege a viable First Amendment claim. See id. at 1164-68, 1170-75.

The majority rejected VDARE’s claims because it

found the statement wasn’t “significantly encouraging

or coercive.” Id. at 1167. But to get there, the majority

played ostrich, reading each sentence in isolation and

ignoring the natural import of the mayor’s words. In

doing so, the majority found that mayor’s statement

included no plausible threats because he simply referenced the limits of his authority, never specifically

mentioned VDARE or any distaste for its speech, and

merely referenced Colorado law. See id. at 1164-66.

The majority thought the third sentence, which said

that the City “will not provide any support or resources to this event and does not condone hate speech

in any fashion,” was a closer call. See id. at 1166. But

it found that the natural import of the resort’s cancellation—considering the Charlottesville context—was

that the resort could have cancelled its contract with

VDARE, not because of the mayor’s statement, but “after observing news coverage of th[e] Charlottesville

event.” See id. (emphasis added).

20

The majority, however, buried its head in the sand

regarding key aspects of the mayor’s statement: (i) he

singled out the resort; (ii) in the next sentence, he referred to withholding resources from “this event” and

referenced hate speech; and (iii) he invoked Colorado

law protecting against “fear, intimidation, harassment and physical harm.” See id. at 1164-66. What

other “event” at the resort involving possible “hate

speech” was the mayor’s statement referring to if not

to VDARE’s event?

Judge Hartz dissented, arguing that the most (if

not the only) reasonable construction of the mayor’s

statement that the city “will not provide any resources

to this event” was that no police or fire resources

would be provided for VDARE’s event at the resort.

Id. at 1175-76 (Hartz, J., dissenting). In his view,

VDARE plausibly alleged “[a] government effort to

punish or deter disfavored speech” because, in context,

the mayor’s announcement that he was withholding

police services from the event was “an open invitation

to those inclined to violence.” Id. at 1176-77 (citing

Bantam Books, 372 U.S. at 61-63); see also id. at 1177

(arguing that it was “more plausible that the Charlottesville violence enhanced the coercive force” of the

mayor’s statement “by highlighting the danger to the

Resort from the denial of police protection”).

2. In this case, the Second Circuit joined the Tenth

Circuit in departing from Bantam Books’ contextual

inquiry. See App.3-5. The NRA alleged, in part, that

the powerful head of New York’s DFS leveraged her

21

regulatory authority to pressure financial institutions

to cut ties with the NRA. App.3-15.

Over several months, Vullo pledged to use her regulatory power to combat the availability of firearms,

and she investigated technical violations of insurance

firms providing services to the NRA, threatened financial institutions behind closed doors to cease providing

services for NRA-endorsed affinity-insurance programs, and issued formal guidance and a press release

calling on financial institutions to sever their ties with

the NRA. App.3-15. Feeling the heat, many of these

institutions complied and severed ties with the NRA.

App.3-4.

The Second Circuit considered whether Vullo’s

statements in the private meetings, guidance letters,

press release, and consent decrees were “implied

threats to employ coercive state power to stifle protected speech.”

App.22 (quoting Hammerhead,

707 F.2d at 39). So far, so good. But when flagging

the factors courts consider in this inquiry—like word

choice and tone, regulatory authority, perception of a

threat—it characterized “whether the speech refers to

adverse consequences” as the most important factor,

effectively requiring the NRA to show an explicit

threat. See App.24-25.

Like VDARE, Vullo applied a diluted version of

Bantam Books’ contextual inquiry, separately evaluating Vullo’s statements in the press release, formal

guidance, Lloyd’s meeting, and consent decrees. See

App.26-34. First, it held that the press release and

guidance documents were not threatening—even

22

though the court conceded they could be perceived as

such—because they didn’t “refer to any pending investigations or possible regulatory action” (just the

“reputational risks” of doing business with the NRA),

and they “were written in an evenhanded, nonthreatening tone and employed words intended to persuade

rather than intimidate.” See App.28-31. But by phrasing its warning as one of “reputational risk,” DFS

communicated to regulated institutions that business

relationships with the NRA were off limits.

Pet’r.Br.42-45; see Gissel Packing, 395 U.S. at 619

(regulated entities “pick up intended implications … more readily dismissed by a disinterested

ear”).

Second, looking to the meetings and consent decrees, the court found that Vullo’s alleged statement

in the Lloyd’s meeting—that she was more interested

in Lloyd’s ending its business relationship with the

NRA than in pursuing its technical infractions—was

made more (not less) reasonable by the investigation

into affinity insurance violations. See App.31-34; but

see Cert.Pet.22 (applying selective regulatory scrutiny

to the NRA, a political adversary, made Vullo’s speech

more coercive).

Not only did the Second Circuit improperly parse

Vullo’s statements to conclude that they were “evenhanded” and used “words intended to persuade rather

than intimidate,” see App.29, but it disregarded the

vast regulatory authority at Vullo’s disposal. R.C.

Maxwell and Penthouse both rejected informal censorship claims in part because of the lack of direct

23

regulatory authority. See, e.g., R.C. Maxwell, 735 F.2d

at 88 (“The quantum of governmental authority

brought to bear against [the target entity] was far less

than that faced by Rhode Island’s booksellers [in Bantam Books].”); Penthouse, 939 F.2d at 1015

(commission had no “prosecutorial power nor authority to censor publications”). But unlike Bantam Books,

Okwedy, and Backpage.com—which found plausible

allegations of informal threats based on indirect power

the officials allegedly threatened to wield—Vullo possessed direct regulatory authority over the entities she

allegedly threatened with regulatory scrutiny.

The line between persuasion and coercion necessarily depends on context, and one contextual cue is

whether government officials have regulatory authority over the entities or individuals they target. By

turning a blind eye to Vullo’s vast regulatory authority

and formalistically relying on her “evenhanded” word

choice and tone, Vullo cast aside its obligation to look

to the substance and blessed government officials’ talismanic invocation of certain words and phrases that

would be perceived as threats by interested parties but

“more readily dismissed by a disinterested ear.” See

Gissel Packing, 395 U.S. at 619.

Both Vullo and VDARE diluted Bantam Books’

contextual inquiry and recast it as a formalistic inquiry into whether government officials “formally”

banned a speaker from expressing his or her views.

See App.28-30; VDARE, 11 F.4th at 1167, 1172. In so

doing, the Second and Tenth Circuits elevated form

over function, precisely what Bantam Books

24

instructed courts not to do. See 372 U.S. at 67 (courts

must “look through forms to the substance”).

3. In recent months, both the Fifth and Ninth Circuits have applied Vullo’s analytical framework for

informal censorship claims, including its emphasis on

“whether the speech refers to adverse consequences.”

See Missouri v. Biden, 83 F.4th 350, 378 (5th Cir.

2023), cert. granted sub nom. Murthy v. Missouri, No.

23-411 (U.S. Oct. 20, 2023); Kennedy v. Warren,

66 F.4th 1199, 1211 (9th Cir. 2023). But the Fifth and

Ninth Circuits’ reliance on the so-called “most important[]” factor in Missouri and Kennedy,

respectively, posed no real concern in those cases. Yet

if that emphasis is uncritically applied elsewhere, it

risks handing government officials tools to mask their

efforts to crackdown on disfavored political speech.

On one hand, in Missouri, the Fifth Circuit catalogued an extensive list of “urgent, uncompromising

demands” from White House and Surgeon General officials to different social media platforms to remove

posts and user accounts. See 83 F.4th at 381-82.

When the platforms failed to comply, the official responded with express and implicit threats of

retaliation, including “the prospect of legal reforms

and enforcement actions.” While the court believed

this evidence “alone may be enough for us to find coercion,” it worked through Vullo’s four-factor inquiry for

completeness. Id. at 382. In considering “perhaps

[the] most important factor,” see id. at 385 (citing

App.25)—whether the official refers to adverse consequences for failure to comply—the court had little

25

difficulty finding that the officials’ messages were coercive because they “made express threats,” “leaned

into the inherent authority of the President’s office,

and responded to noncompliance with threats of “regulatory changes and increased enforcement actions.”

See id. at 385-87.

Turning to the FBI officials, Missouri found the

FBI’s communications coercive in significant part because “the FBI’s requests came with the backing of

clear authority over the platforms”—thus, the FBI’s

“takedown requests” could reasonably be viewed as coercive. See id. at 388. Even though the FBI

communications did not plainly reference adverse consequences, its inherent authority “intimate[d] that

some form of punishment [would] follow compliance.”

Id. While ostensibly applying Vullo’s four-factor test,

Missouri’s analysis tracks Bantam Books’ contextual

inquiry. And unlike Vullo, which largely ignored the

significant regulatory authority at Vullo’s disposal, see

App.28-30, Missouri recognized that such authority

should bear heavily in analyzing whether an official’s

statements are coercive, see 83 F.4th at 388-89. So

Missouri’s use of Vullo’s four-factor test, while potentially concerning in closer cases, provides little

opportunity for lower courts to work any mischief. 12

12 Indeed, if applied correctly (as in Missouri), there is little day-

light between Vullo’s four-factor test and Bantam Books’

contextual inquiry. Problems arise (as in Vullo) when courts

treat the lack of explicit adverse consequences as dispositive rather than one factor among many.

26

On the other hand, in Kennedy, the facts supporting coercive express or implied threats were much

weaker. Senator Warren sent a letter to Amazon’s

CEO raising concerns that it promoted books containing false information about COVID and vaccines. See

66 F.4th at 1204. In that letter, she suggested that

Amazon’s algorithms promoted those books, which she

suggested was “an unethical, unacceptable, and potentially unlawful course of action.” Id. And she

concluded the letter by asking Amazon to review its

algorithms, provide a public report detailing the extent to which those algorithms direct consumers to

misinformation, and a plan to modify them. See id. at

1205. She issued a press release on her website the

next day, attaching the letter. Id. Working through

Vullo’s four-factor test, Kennedy observed that Warren’s letter, which included some “strong rhetoric,”

was merely an attempt to persuade Amazon to change

its policies. See id. at 1207-10 Not only that, but as a

single legislator removed from the “levers of power,”

she neither had the authority to sanction Amazon, nor

was there any evidence that Amazon perceived her letter as a threat. See id. at 1210-11. Looking to the

letter and Senator Warren’s conduct, Kennedy found

no evidence of an express threat or any “unspoken ‘or

else.’” See id. at 1211-12. The best plaintiffs could offer was “that Amazon could reasonably have

construed the letter as implying that Senator Warren

could refer Amazon for criminal prosecution as an accomplice to homicide”—a construction the district

court and Ninth Circuit rightly dismissed as the product of “vivid imagination.” Id. at 1212. On these facts,

27

Kennedy’s application of Vullo’s four-factor test largely

mirrored Bantam Books’ contextual inquiry. But in

cases like Vullo and VDARE, where official threats are

more subtle, overemphasizing whether an official’s

statements expressly refer to adverse consequences

gives government officials more opportunities to mask

efforts to stifle protected speech.

And emphasizing the need for express—or strongly

implied—references to adverse consequences leaves

disfavored speakers’ free speech rights in limbo. Both

Vullo and VDARE showed that government officials

can easily package clear threats in “evenhanded” language that targeted entities pick up but which seems

anodyne to the “disinterested ear.” Gissel Packing,

395 U.S. at 619; see also App.28-31; VDARE, 11 F.4th

1164-68.

Rather than overemphasizing explicit

threats, this Court should reaffirm Bantam Books’

contextual inquiry, which focuses on the defendants’

actual or apparent regulatory authority over the targeted entity, the language used in the alleged threat,

and whether the targeted entity reasonably perceived

the statement as a threat. Backpage.com, 807 F.3d

230-32.

II. Vullo’s and VDARE’s expansion of the government speech doctrine risks eroding First

Amendment safeguards for political speech.

Both Vullo and VDARE endorse a subtle expansion

of the government speech doctrine that threatens to

erode vital First Amendment protections for private

political speech. See Matal, 137 S. Ct. at 1758 (explaining that the doctrine “is susceptible to dangerous

28

misuse” and calling for “great caution before extending [this Court’s] government-speech precedents”); see

also Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 232 (2015) (Alito, J.,

dissenting) (majority’s extension of the government

speech doctrine to Texas’ specialty license plate program took “a large and painful bite out of the First

Amendment”). As it is, the government speech doctrine operates as an exception to the general rule that

government officials may not discriminate against

speech based on its content or message. See Iancu,

139 S. Ct. at 2299 (citing Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 828 (1995)).

Shifting away from Bantam Books’ context-based

inquiry for informal censorship claims—which considers whether, in context, a government official is

regulating private expression, see 372 U.S. at 66-67—

Vullo and VDARE conceive of the government speech

doctrine as a collision of “[t]wo sets of free speech

rights … : those of private individuals and entities and

those of government officials.”

See App.22-23;

VDARE, 11 F.4th at 1156, 1168. But the “government-speech doctrine is not based on the view—which

[this Court] ha[s] neither accepted nor rejected—that

governmental entities have First Amendment rights.”

Shurtleff, 142 S. Ct. at 1599 (Alito, J., concurring in

the judgment). Instead, it’s based on the commonsense notion that government communications do

not ordinarily “restrict the activities of … persons acting as private individuals.” Id. (quoting Rust v.

Sullivan, 500 U.S. 173, 198-99 (1991)). It’s no doubt

true that the government is “exempt from First

29

Amendment scrutiny” when it “speak[s] for itself”—

“[i]ndeed, it is not easy to imagine how government

could function if it lacked this freedom.” Pleasant

Grove City v. Summum, 555 U.S. 460, 467-68 (2009)

(citations and quotation marks omitted). The government may select its own views, see id., and promote its

own programs and policies, see Walker, 576 U.S. at

207-08; Johanns v. Livestock Mktg. Ass’n, 544 U.S.

550, 559 (2005). But it isn’t “exempt from First

Amendment attack if it uses a means that restricts

private expression.” Shurtleff, 142 S. Ct. at 1599

(Alito, J., concurring in the judgment).

Practical considerations also support “exercising

great caution before extending … [the] government

speech precedents.” See Matal, 582 U.S. at 235. The

First Amendment secures private parties’ speech

rights from government encroachment, not the other

way around. U.S. Const. amend. I (“Congress shall

make no law … abridging the freedom of speech[.]”);

cf. Columbia Broad. System v. Democratic Nat’l

Comm., 412 U.S. 94, 139 (1973) (Stewart, J., concurring) (“The First Amendment protects the press from

the government; it confers no analogous protection on

the government”). And government officials don’t

need the same First Amendment safeguards as private parties because various immunity doctrines—like

qualified immunity—shield them from liability in

close cases. Even if a state official violates a private

party’s constitutional right, courts must also find that

the right was “clearly established” at the time and that

a “reasonable official would understand that what he

[was] doing” was unlawful. See District of Columbia

30

v. Wesby, 583 U.S. 48, 63 (2018) (quotation marks

omitted). Extending this Court’s “government speech”

precedents to safeguard state official’s speech rights

gives them one more tool that risks converting the

First Amendment into a cudgel for the government rather than a right for the governed.

Even so, this Court’s “government speech” cases

provide little cover here. To qualify as “government

speech,” the government must engage in “speech”—

“expressive activity that is ‘intended to be communicative’” and perceived as such—and the relevant act of

communication must be official government action.

See Shurtleff, 142 S. Ct. at 1598 (quoting Clark v.

Cmty. for Creative Non-Violence, 468 U.S. 288, 294

(1984) and citing Garcetti v. Ceballos, 547 U.S. 410,

421 (2006)). But this Court’s “government speech”

cases focus on whether a relevant act of communication was a government message or a private message.

See, e.g., Walker, 576 U.S. at 208 (specialty license

plates are government speech); Summum, 555 U.S. at

470 (permanent monuments accepted and displayed

on public property are government speech); Johanns,

544 U.S. at 562 (beef marketing is government

speech); Shurtleff, 142 S. Ct. at 1593 (temporary flagpole use is private speech). And, unlike here, each

case involved a single expressive conduit (i.e., license

plate, monument, beef ads, flags) and concerned the

speaker’s identity (i.e., government or private party).

But these cases are a poor fit for determining

whether a government official’s speech simply expresses the government’s views and policy positions or

31

instead regulates private expression. See VDARE,

11 F.4th at 1176 (Hartz, J., dissenting) (explaining

that government-speech doctrine is invoked to determine whether government control over a forum

regulates private speech or simply involves the government determining its own message). The “real

question in government-speech cases,” then, is

“whether the government is speaking instead of regulating private expression.” Shurtleff, 142 S. Ct. at

1595 (Alito, J., concurring in the judgment).

And that’s where Vullo and VDARE got off track.

In Vullo, the court observed that “[t]wo sets of free

speech rights are implicated,” and when drawing the

line between permissible government persuasion and

impermissible coercion, it suggested that the most important factor for determining whether the

government lost its free speech rights is whether it employed explicit threats in carrying out its duties.

App.22-25. Likewise, in VDARE, the court explained

that “permissible government speech” means that officials are “entitled to speak for themselves [and]

express their own views, including disfavoring certain

points of view.” 11 F.4th at 1168; see also id. (arguing

that the mayor’s speech was “itself protected” and had

to “be egregious to be plausibly retaliatory”). But rather than safeguarding private expression, both Vullo

and VDARE subtly shift the emphasis to safeguarding

government expression—leaving the door open for

governments to use the “government-speech doctrine … as a cover for censorship.” Shurtleff, 142 S.

Ct. at 1595 (Alito, J., concurring in the judgment).

32

The Ninth Circuit’s recent decision in O’Handley v.

Weber, 62 F.4th 1145 (9th Cir. 2023) pushed that door

wide open. Petitioner alleged that state officials retaliated against him for disfavored speech—questioning

California’s election integrity—by “flagging” his account to Twitter, which the officials knew would earn

misinformation labels, decreased visibility, and ultimately suspension. Id. at 1163. But the court

concluded that the officials’ speech, behind closed

doors directly to Twitter, was protected “government

speech” and thus could not sustain a First Amendment

retaliation claim. See id. at 1163–64. Why? Because

flagging posts that violate a “private company’s content moderation policy” is a “form of government

speech that we have refused to construe as ‘adverse

action’ because doing so would prevent government officials from exercising their own First Amendment

rights.” Id. at 1163 (emphasis added). 13 Nor did the

state officials’ flagging so-called “misinformation” behind closed doors “dilute its speech rights or transform

permissible speech into problematic adverse action.”

Id. at 1163-64. 14

Far from subtly shifting the

13 In VDARE and Vullo, the Second and Tenth Circuits both con-

strued government officials’ statements as mere attempts to

persuade, even though the statements could be read to threaten

adverse consequences for failure to comply. See supra Sect.I.C.12. This appears to be another concerning aspect of the government speech doctrine’s expansion, which likely provides

government officials another tool to suppress disfavored speech.

14 Whether a government official’s statements are private

(O’Handley), public (VDARE), or a mix of public and private

(Vullo), Bantam Books’ inquiry requires courts to consider

whether the way those statements are delivered would affect a

33

emphasis to safeguarding government expression, the

Ninth Circuit’s decision leaves the government speech

doctrine boundless and in need of correction. This

Court should therefore take this opportunity to clarify

the metes and bounds of the government speech doctrine.

CONCLUSION

Freedom of speech “is essential to free government”

because “free and fearless reasoning and communication of ideas” enables the “discover[y] and spread [of]

political and economic truth.” Thornhill v. Alabama,

310 U.S. 88, 95 (1940). Government officials may advocate preferred policy positions and criticize contrary

positions, but they may not use “the governmentspeech doctrine” to “surreptitiously engage[] in the

‘regulation of private speech.’” Shurtleff, 142 S. Ct. at

1595-96 (Alito, J., concurring in the judgment) (quoting Summum, 555 U.S. at 467).

Bantam Books’ context-based inquiry places the

emphasis where it should be—whether an official’s

statements and conduct cross the line from persuasion

to coercion. But Vullo’s and VDARE’s emphasis on explicit threats, and Vullo’s disregard for the relevance

of direct regulatory authority, hands “[p]ublic officials … a readymade playbook for abusing their

regulatory power to harm disfavored advocacy groups

without triggering judicial scrutiny.” ACLU.Br.4. In

Vullo, that meant pairing backroom threats with

target entity’s perception of the message. That is, whether it

would make the official’s message more or less coercive.

34

public guidance documents and press releases that

seemed anodyne to the general public but which made

clear to the targeted insurance companies that business relationships with the NRA were off limits. See

App.26-34. In VDARE, like in Backpage.com, it meant

pairing subtle threats with formal criticism of disfavored speech or conduct the official wants to eradicate.

See VDARE, 11 F.4th at 1157, 1164-68; see also Backpage.com, 807 F.3d at 237-38 (“The judge was giving

official coercion a free pass because it came clothed in

what in the absence of any threatening language

would have been a permissible attempt at mere persuasion.”).

If the Second Circuit’s decision is left standing,

government officials will likely employ similar tactics

to stifle disfavored speakers. 15 As in Vullo, officials

could target financial institutions that advocacy

groups depend on to engage in robust political advocacy—whether related to school choice, abortion,

religious liberty, or environmental issues—or, like in

VDARE, they could simply target private facilities

that host events for such groups. In either case, the

path forward is clearly marked. Bantam Books and its

progeny recognize that government officials’ subtle

threats to use coercive state power can snuff out disfavored speakers as, if not more, effectively than explicit

threats. If this Court doesn’t shut down that path,

15 Duffield, Jawboning Against Speech, supra note 6, at 5-6 (“Us-

ing threats of prosecution or regulation to compel private speech

suppression simply launders state censorship through private intermediaries.”).

35

“where would such official bullying end … ?” Backpage.com, 807 F.3d at 235. This Court should reverse

the Second Circuit’s decision.

Respectfully submitted.

January 16, 2024

AUSTIN KNUDSEN

Attorney General

CHRISTIAN B. CORRIGAN

Solicitor General

PETER M. TORSTENSEN, JR.

Deputy Solicitor General

Counsel of Record

MONTANA DEPARTMENT

OF JUSTICE

215 N. Sanders Street

Helena, MT 59601

(406) 444-2026

peter.torstensen@mt.gov

Counsel for Amicus Curiae

State of Montana

36

ADDITIONAL SIGNATORIES

STEVE MARSHALL

Attorney General of

Alabama

TREG TAYLOR

Attorney General of

Alaska

TIM GRIFFIN

Attorney General of

Arkansas

CHRISTOPHER M. CARR

Attorney General of

Georgia

RAÚL R. LABRADOR

Attorney General of

Idaho

BRENNA BIRD

Attorney General of

Iowa

KRIS KOBACH

Attorney General of

Kansas

RUSSELL COLEMAN

Attorney General of

Kentucky

LIZ MURRILL

Attorney General of

Louisiana

ANDREW BAILEY

Attorney General of

Missouri

MICHAEL T. HILGERS

Attorney General of

Nebraska

JOHN M. FORMELLA

Attorney General of

New Hampshire

DREW H. WRIGLEY

Attorney General of

North Dakota

DAVE YOST

Attorney General of

Ohio

37

GENTNER F. DRUMMOND

Attorney General of

Oklahoma

ALAN WILSON

Attorney General of

South Carolina

MARTY J. JACKLEY

Attorney General of

South Dakota

JONATHAN SKRMETTI

Attorney General and

Reporter of Tennessee

SEAN D. REYES

Attorney General of

Utah

JASON MIYARES

Attorney General of

Virginia

PATRICK MORRISEY

Attorney General of

West Virginia

BRIDGET HILL

Attorney General of

Wyoming

WARREN PETERSON

President of the

Arizona Senate

BEN TOMA

Speaker of the Arizona

House of Representatives