The First Amendment is under unprecedented attack, as the Democratic Party has weaponized one federal and state agency after another to go after its opponents. An important instance of this phenomenon is the effort by Democratic banking regulators to deprive disfavored organizations of access to our financial system.
The issue is raised in NRA v. Vullo (the link goes to Eugene Volokh’s discussion of the case). The facts underlying the case are shocking:
New York’s powerful Department of Financial Services (“DFS”) [took action] against financial institutions doing business with the [National Rifle Association]. 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.
It is hard to imagine a clearer or more important violation of the First Amendment, and yet, almost unbelievably, the Second Circuit Court of Appeals granted a motion to dismiss the NRA’s case. The Second Circuit panel actually endorsed the idea that groups that advocate positions in opposition to the Democratic Party should be deprived of financial services:
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 NRA, represented by Volokh among others, has petitioned the U.S. Supreme Court for certiorari. The Supreme Court should grant the petition and reverse the Second Circuit’s order.