Last week the S Ct handed down a ruling that matters for jawboning cases about govt pressure on platform content moderation (including the Ct’s pending Murthy case). It got lost in the hubbub of other judicial developments, so I’m writing about it now. www.supremecourt.gov/opinions/23p... 1/
The case is NRA v. Vullo. The Court holds unanimously that Ms. Vullo, a NY state insurance official, violated the 1st Am by pressuring insurers to stop doing business with the NRA, bc of state disapproval of the NRA’s pro-gun messages. (The ACLU represented the NRA in the case.) 2/
The big question for the platform case, Murthy v. Missouri], is whether Vullo
(1) tells us Murthy’s likely outcome,
(2) sets up Murthy to be remanded for resolution in light of Vullo, or
(3) leaves us in suspense.
Spoiler: It’s mostly (3).
3/
I think Vullo provides a lot of grist for justices who might want to say “the state action in Vullo violated the 1st Amendment, but the state action in Murthy does not.”
But that only matters if five justices want to say that. 4/
The unanimous Vullo ruling was written by J. Sotomayor. Jackson and Gorsuch wrote separate concurrences. Given the posture, this ruling accepts NRA’s allegations as true (for now). Its First Am analysis draws primarily on Bantam Books. 5/
It’s hard to know which factual allegations mattered most. But Ms. Vullo (1) reached multi-million dollar settlements over *actually illegal* NRA-linked insurance, and (2) is said to have successfully pressured insurers to cut NRA ties even for legal insurance. 6/
Here are some differences from Murthy v. Missouri, the case alleging that Biden administration officials violated the 1st Am by urging platforms to remove Covid misinfo:
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