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William Brewer, Sarah Rogers & Noah Peters of Brewer Attorneys & Counselors and I filed a petition earlier this month asking the Supreme Court to review the Second Circuit decision in NRA v. Vullo; I think many of our readers will find it interesting (my apologies for the delay in passing it along).

I generally tend to agree with the NRA's ideological views, to a considerable extent, but I would have been glad to be engaged to argue a similar case on behalf of groups I disagreed with as well; it's a pretty important First Amendment question that can affect groups with all sorts of views. (Note that the ACLU filed an amicus brief on NRA's side in the District Court.) Here's our Introduction:

The Second Circuit's opinion below gives state officials free rein to financially blacklist their political opponentsfrom gun-rights groups, to abortion-rights groups, to environmentalist groups, and beyond. It lets state officials "threaten[ ] regulated institutions with costly investigations, increased regulatory scrutiny and penalties should they fail to discontinue their arrangements with" a controversial speaker, on the ground that disfavored political speech poses a regulable "reputational risk."

It also permits selective investigations and penalties targeting business arrangements with disfavored speakers, even where the regulator premises its hostility explicitly on an entity's political speech and treats leniently, or exempts, identical transactions with customers who lack controversial views. In sum, it lets government officials, acting with undisguised political animus, transmute "general backlash" against controversial advocacy into a justification for crackdowns on advocates (and firms who serve them), eviscerating free speech rights.

Reaching this result, the Second Circuit disregards basic pleading standards and undermines fundamental First Amendment freedoms. It also departs from this Court's precedent in Bantam Books, Inc. v. Sullivan and from the Seventh Circuit's precedent in Backpage.com, LLC v. Dart.

This case arises from a series of actionsincluding press releases, official regulatory guidance, and contemporaneous investigations and penaltiesissued by or on behalf of New York's powerful Department of Financial Services ("DFS") against financial institutions doing business with the NRA. Among other things, the Complaint states that Superintendent Maria Vullo: (1) warned regulated institutions that doing business with Second Amendment advocacy groups posed "reputational risk" of concern to DFS; (2) secretly offered leniency to insurers for unrelated infractions if they dropped the NRA; and (3) extracted highly-publicized and over-reaching consent orders, and multi-million dollar penalties, from firms that formerly served the NRA. Citing private telephone calls, internal insurer documents, and statements by an anonymous banking executive to industry press, the Complaint alleges that numerous financial institutions perceived Vullo's actions as threatening and, therefore, ceased business arrangements with the NRA or refused new ones.

The NRA brought First Amendment claims against Vullo and Governor Andrew Cuomo in their official and individual capacities. The individual-capacity claimsagainst Vullo, which were the subject of the Second Circuit's decision, withstood two motions to dismiss. But when Vullo appealed the District Court's refusal to grant her qualified immunity at the pleading stage, the Second Circuit held that the NRA's allegations fail to state a First Amendment claim at all.

In effect, the Second Circuit holds that a government official must explicitly threaten adverse consequences for disfavored speechand must do so in the absence of any contemporaneous assertion of a regulatory interestfor a First Amendment retaliation claim to arise. The Second Circuit's opinion thereby creates a circuit split with the Seventh Circuit's decision in Backpage.com, which held that a government official violated the First Amendment in circumstances closely comparable to these.

In addition, the Second Circuit refuses to accept the Complaint's allegation that Vullo clearly and unambiguously threatened insurers in private meetings, and selectively parses Vullo's official communications to disregard key passages and deny NRA the favorable inferences to which it is entitled on a motion to dismiss. The Second Circuit's decision thus defies this Court's command that, in evaluating qualified immunity, "courts must take care not to define a case's 'context' in a manner that imports genuinely disputed factual propositions."

The Second Circuit denudes Vullo's regulatory guidance of the "context" that made it ominous, while importing favorable "context" to frame Vullo's contemporaneous, selective targeting of NRA business associates as benign. "The 'context' here," the Circuit opines, "was an investigation, commenced months before the meetings, that was triggered by a referral from the DA's Office." The Circuit ignores boasts by Vullo's boss, Governor Cuomo, that her regulatory actions were "forcing the NRA into financial jeopardy." And the Second Circuit's suggestion that Vullo had non-retaliatory motives for investigating the insurance policies at issue is rebutted by the facts pleaded in the Complaint.

The Second Circuit goes on to suggest that even if Vullo did make threats, such threats were justified by the "general backlash" against the NRA "and businesses associated with them" which "was intense after the Parkland shooting." Indeed, this backlash "continues today," with many people "speaking out" against the NRA's gun rights advocacy. Such "backlash" against a speaker's viewpoint, the Second Circuit opines, "likely" has financial consequences that would justify financial blacklisting of that speaker for its controversial advocacy.

In support, the Second Circuit cites a "diversity, equity, and inclusion" consultant who charges companies for "consulting packages" to implement "corporate social responsibility" programs, as well as a "survey" commissioned by a marketing company that "strives to insert the brand's social mission and innovations into mainstream conversations through traditional and social media." The reliance on such sources underscores the unsoundness of the opinion below.

This Court has not hesitated to summarily overturn circuit court decisions, like the Second Circuit's, that disregard the applicable pleading standard in determining qualified immunity. Here, the Second Circuit makes the same error as the lower courts in Lombardo v. City of St. Louis, Missouri, 141 S. Ct. 2239 (2021) (per curiam), Sause v. Bauer, 138 S. Ct. 2561 (2018) (per curiam), and Tolan v. Cotton, 572 U.S. 650 (2014) (per curiam). In all three, this Court summarily reversed because the circuit courts refused to accept well-pleaded facts and draw reasonable inferences in favor of the non-moving party in determining qualified immunity.

The public importance of this case cannot be overstated. A regulatory regimeeven a facially content-neutral onethat "inhibit[s] protected freedoms of expression and association" violates the First Amendment. See NAACP v. Button, 371 U.S. 415, 437-38 (1963); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-62 (1958). An overt campaign by state officials to wield regulatory power against a disfavored civil rights organizationhere the NRAprecisely because of its disfavored speech at least as clearly merits this Court's attention and reversal.

Reversal is urgent because the Second Circuit's opinion threatens basic First Amendment rights at a time when the First Amendment is under widespread attack. As the American Civil Liberties Union ("ACLU") has warned, "If the NRA's allegations were deemed insufficient to survive the motion to dismiss, it would set a dangerous precedent for advocacy groups across the political spectrum."

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Cert. Petition on the First Amendment and Coercive Government ... - Reason

American journalists are protected from defamation claims by public officials under the standard set by a unanimous Supreme Court in New York Times Company v. Sullivan. Republican leaders like Gov. Ron DeSantis of Florida now want to abridge that protection.

To prevail in a libel case, the court held in 1964, a public official must prove actual malice that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.

Surprisingly, the Sullivan case was not about Times journalism.

It concerned a full-page advertisement on March 29, 1960, seeking money for the legal defense of the Rev. Dr. Martin Luther King Jr. and the civil rights movement. A tear sheet is displayed in the Museum at The Times.

Among other things, the ad charged that historically Black Alabama State University in Montgomery (then called Alabama State College) had been ringed by truckloads of police armed with shotguns and tear-gas.

L.B. Sullivan, the police commissioner in Montgomery, sued The Times for libel. Though he was not named in the ad, Mr. Sullivan said police conduct would be imputed to him. By accepting the ad, he said, The Times had published statements it would have known to be false from its own clipping files. For instance, the police had not ringed the college campus.

On the stand, the manager of advertising acceptability for The Times, D. Vincent Redding (1910-70), said he had not questioned the accuracy of the ad, as it had been endorsed by people with reputations for truthfulness and trustworthiness, like Eleanor Roosevelt.

In 1962, the Alabama Supreme Court upheld a $500,000 judgment against The Times. That decision was reversed by the U.S. Supreme Court on March 9, 1964, in an opinion by Justice William J. Brennan Jr.

The presence of newspaper articles in the files does not, of course, establish that the Times knew the advertisement was false, Justice Brennan wrote. The test of actual malice, he said, would be the state of mind of the employees having responsibility for the publication of the advertisement.

David E. McCraw, the deputy general counsel of the Times Company, said in an email on Monday that this principle is a key part of the defenses by Fox News against a defamation lawsuit brought by Dominion Voting Systems. Fox is charged with having broadcast statements about voting fraud in the 2020 presidential election that it knew to be false.

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The Ad in the First Amendment - The New York Times

A fired Cleveland State University professor has filed a civil lawsuit against the university in federal court, arguing his First Amendment rights were violated.

Former College of Business professor Bryan Pesta was stripped of his tenure and fired last year after the university found he had committed serious violations of our policies governing academic research, CSU said in a statement this week.

Pesta was also found by the National Institutes of Health to have misused its data and was banned from its use for three years in what CSU alleged was the most serious and longest such ban in NIH history. Pesta used that data in a controversial research report that suggested Black people are genetically predisposed to be less intelligent than white people, part of a larger body of scholarship Pesta had authored on the topic of genetics, race and inheritance that, as the Chronicle of Higher Education reports, flew under the radar until recently.

However, Pesta in the suit filed in the U.S. District Court for the Northern District of Ohio last week alleged he was being censored because his research challenges those of powerful government policies.

Pesta alleged that his opponents a) identified a conclusion of Dr. Pestas work which happens to be at variance with government policy and is interdicted by powerful taboos; and b) instead of squarely disputing the truth or falsity of the conclusion at variance with government policies, accused Dr. Pesta of ethical violations as a means of silencing Dr. Pesta without having to refute his conclusions, the lawsuit reads.

CSU in a statement said it wasnt engaging in censorship in Pestas case.

We strongly believe our faculty are entitled to full freedom in their research, but they must adhere to the highest standards of honesty, integrity and professional ethics, the spokesperson wrote. Anytime those standards are violated, we will take appropriate action.

The scientific consensus is that there is little evidence for genetics determining IQ differences between racial groups, several researchers reported in a 2017 Vox article, partly because of how difficult it is to disentangle environmental factors that people experience after being born, factors like discrimination and poverty. Plus, they wrote, there are challenges disentangling the concept of a person's race - which many scientists argue is a social construct rather than a biological one - from their genetic ancestry.

Pesta alleged in the lawsuit that a group of academics and students put pressure on university officials to get him fired due to his unpopular and racist views, a charge which he denies.

The lawsuit seeks his reinstatement, with pay, at CSU, along with $50,000 in damages and a declaration that the hereditarian hypothesis in the long-standing racial gap in IQ is worthy of study, but is presently under assault for reasons wholly removed from valid scientific criteria, along with a statement that those studying the issue are entitled to academic freedom.

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Fired Cleveland State professor files suit alleging violation of his ... - ideastream

The disdain law students and their administrators show the First Amendment and differing viewpoints should be a major societal concern.

Earlier this month, federal circuit court Judge Kyle Duncan appeared at Stanford Law School to give a speech. He came at the invitation of the Federalist Society. His talk was titled, The Fifth Circuit in Conversation with the Supreme Court: Covid, Guns, and Twitter. Such gatherings are one of the benefits of attending an elite law school.

Instead, what took place would have gotten a preschooler sent home for the day. Many Standard law students were angry that Judge Duncan was coming, because he is gasp! a traditional conservative. Some held up profane signs in the room where he was speaking. As he began his lecture, many students shouted and heckled him with taunts such as scumbag and youre a liar.

This is wildly inappropriate, but it has become the norm from the tolerant left.

Ironically, Stanford claims to have a strong free speech policy. It is a violation to prevent or disrupt the effective carrying out of a University function or approved activity, such as lectures and public events.

But the words on a page dont mean much if those in charge wont enforce them. After numerous disruptions, Judge Duncan noted that the prisoners were now running the asylum. An apt description. He asked the school administration to calm the students. Up came Tirien Steinbach, associate dean for diversity, equity and inclusion. Instead of bringing the students into line, she verbally attacked the federal judge.

This event is tearing at the fabric of this community that I care about and am here to support, she said. She smeared his speech as abhorrent and harmful. She claimed it literally denies the humanity of people.

There a deep irony in a mob of screaming zealots claiming that allowing a lone federal judge to deliver an address is harmful.

Stanfords president and dean have since apologized, but, without disciplining the offending students and Ms. Steinbach, it wont mean much. Instead, what the lawyers of tomorrow are learning is that might makes right. The students have a right to protest, of course. But they dont have a right to essentially vandalize campus events on public property. Instead, they learn that minority voices can be bullied and silenced by majority power. That the words on a page whether they be Stanfords free speech policy or the First Amendment can be ignored at their convenience.

Its deeply troubling that the lawyers of tomorrow appear more interested in exercising tyrannical authority than respecting diverse viewpoints and individual rights.

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EDITORIAL: Law students shout down the First Amendment - Las Vegas Review-Journal

A lawsuit filed in federal court Friday aims to declare the anti-dark money ballot measure that Arizona voters approved last year unconstitutional on grounds that political donors have a First Amendment right to do so anonymously, among other claims.

Voters widely approved Proposition 211 last year, with more than 70% of voters choosing to require that big-money donors disclose their names to political action committees. The Voters Right to Know Act triggers disclosure if an individual gives $5,000 or more to a committee that spent at least $50,000 on a given statewide or legislative race or ballot proposition.

On local elections, the disclosure rate drops to $2,500 for individuals and $25,000 for committee spending.

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The lawsuit filed in federal court in Phoenix on Friday by the conservative advocacy group Americans for Prosperity and its foundation says that such disclosures have a chilling effect on the free speech of Arizonans and are a violation of the First Amendment.

The First Amendment safeguards the right of individuals to donate to private advocacy organizations of their choosing without undue risk that they will be subjected to their identities being disclosed or other chilling by the government, the lawsuit says. The lawsuit is similar to one filed in state court last year by the Center for Arizona Policy and the Arizona Free Enterprise Club.

At the heart of the lawsuit is the argument that anonymous political speech is protected by the First Amendment. Terry Goddard, a former Arizona attorney general and the driving force behind the Voters Right to Know Act, said the arguments against disclosure arent new and have been rejected by courts.

I think the arguments they make have been thoroughly dealt with, Goddard told the Arizona Mirror.

The group behind the suit, Americans for Prosperity, is no stranger to dark money.

Dark money refers to political nonprofits that spend money on political ads, robocalls and other efforts to sway elections without any requirement to disclose donors.

During the 2014 midterm elections, the group was one of the largest spenders on political ads and due to its nonprofit status, did not have to disclose the source of its donors. It continues to play a key-role in major conservative causes.

The term garnered extra attention after the United States Supreme Court ruled on the case of Citizens United v. FEC which prohibited the government from restricting independent expenditures that are commonly associated with dark money from political campaigns by corporations, nonprofits, labor unions and other groups.

Since the SCOTUS ruling, groups like End Citizens United have sought to rein in anonymous spending in elections by large corporations and donors which they see as a way to influence policy making that unfairly overpowers the average voter.

Without that transparency it is easier for them to raise big chunks of money from millionaires and companies that want to buy influence from politicians in Washington, Adam Bozzi, spokesman for End Citizens United, a political action committee that is working to reverse the SCOTUS decision. They want to do that without any scrutiny.

Bozzi pointed out that former U.S. Supreme Court Justice Antonin Scalia even favored transparent disclosure and former U.S. Supreme Court Justice Anthony Kennedy wrote in the Citizens United ruling that, while the First Amendment protects political speech, transparent disclosure allows citizens to react to that speech.

But not everyone sees it that way.

Compliance-wise, it is just a nightmare, Luke Wachob, senior director of communications and policy for People United for Privacy Foundation told the Mirror about Prop. 211.

According to the lawsuit and Wachob, the voter-approved law will make it so those who advocate at the Capitol will also be running afoul of disclosure laws due to the overly broad language of the proposition.

The argument rests on the claim that the proposition does not adequately define campaign media spending, leaving an open door to interpretation, and adds on the window of time prior to an election in which disclosures must be made and other forms of political speech may be impacted.

It is going to trip up a lot of legislative groups looking to talk about legislation around the legislative session, Wachob said.

Plaintiffs and advocates for anonymous political spending say that the disclosure required by Prop. 211 opens up donors to harassment.

People vote in private booths, Wachob said. It is a very similar idea, that when you support a nonprofit group or advocacy groupyou should not have to have your name, address, employer published.

In todays divisive political environment, Wachob contends that exposing donors could create retaliation or chill speech, as donors would think twice about donating out of fear. There is some established case law to support this as in 2015, then California Attorney General Kamala Harris was blocked in federal court from receiving the donor list of Americans for Prosperity.

People United for Privacy, the group Wachob represents, is funded in part by groups that also fund Americans for Prosperity and has rallied against dark money disclosure in other states where Americans for Prosperity has also done work.

Let me not be cavalier, they started the wheels rolling in the district court, Goddard said, when asked by the Mirror if he thought a SCOTUS challenge was inevitable. Goddard added that they followed SCOTUS precedents in drafting Prop. 211 and that he believes strongly that the voter-approved measure is constitutional.

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Claiming a First Amendment right to anonymity, lawsuit aims to strike ... - Arizona Mirror