An interesting summary of the historical background to this pending Supreme Court case (in which I am the attorney of record, and which the ACLU’s legal director, David Cole, will argue on March 18), by the ACLU’s Janessa Kellow-Friedman:
More than 60 years ago, the Supreme Court ruled that the First Amendment prevents the government from forcing private institutions to punish speech that the government disapproves of. Just as the government cannot directly punish or censor speech it disagrees with, it cannot do so indirectly by coercing private parties.
History underscores the importance of protecting this free speech. Government officials often used private parties—from the white citizens’ councils of the Jim Crow South to blacklists of Communists in the McCarthy era—to punish those they disagreed with. New York’s efforts to punish the National Rifle Association took the issue to the Supreme Court National Rifle Association v. Volofollow in the footsteps of these previous censorship efforts.
The ACLU sharply disagrees with the NRA on many issues, yet we represent the group in this case because of the First Amendment principles at stake. We argue that Maria Volo, a New York state regulator, threatened to use her regulatory power over banks and insurance companies to force them to deny basic financial services to the NRA and, in Volo’s own words. In, “Other gun promotion” groups. Vullo’s threats were apparently based on his disagreement with the NRA’s lawyer. And they worked. Many insurance companies and banks refused to work with the NRA for fear of retaliation from New York regulators. The ACLU is urging the Supreme Court to force third parties to sever ties with the NRA because its advocacy violates the First Amendment….
I must reiterate how pleased I am that the ACLU is representing the NRA here, especially since the two disagree so sharply on gun rights questions. In fact, on Second Amendment issues I generally agree with the NRA more than the ACLU. But so what? The First Amendment is about protecting speech, even from those you disagree with. The ACLU participating in the case sends that message loud and clear.
If you’re interested in our main arguments, you can see them in the petitioner’s brief, which is also signed by Alan Morrison, co-founder of the Public Citizen Litigation Group with Ralph Nader, as well as other ACLU attorneys (including Calvo-Friedman, the author of the article), as well as the NRA’s original attorneys, Brewer attorneys and consultants, and myself. And you can read the rest of the ACLU article for more historical examples of the government using threats to third parties to try to limit speech.