Dynamic Duo: The NRA and ACLU Fight for Free Speech
Plus: Tocquevillian localism, the fairytale of Shane MacGowan, and interns being interns.
The Biden administration’s attempts to control what user speech social-media platforms publish have received extensive coverage — in this “news”letter and elsewhere. The Supreme Court will soon rule on the legality of these efforts in Murthy v. Missouri.
Murthy has distracted the public from another active Supreme Court case involving a rank government attempt to silence disfavored speech, National Rifle Association (NRA) v. Vullo. Here, New York State regulators cajoled NRA-partnered financial institutions to disassociate from the gun-rights group. Unable to sanction the NRA officially, they sought attempted to suffocate the organization through backdoor bullying.
This author discussed the case in The American Spectator:
After the infamous 2019 mass shooting at a high school in Parkland, Florida, [former superintendent of the New York State Department of Financial Services (DFS) Maria Vullo] issued a guidance letter urging financial institutions to “to continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations.”
The 2nd Circuit said the letter’s language “cannot reasonably be construed as being unconstitutionally threatening or coercive” and, therefore, fell within the government’s well-established right to express opinions to private actors. This reasoning reflects an ignorance of the financial service industry’s regulatory culture, write Brian Knight and George Mocsary, two business-law scholars. The two explain that financial regulators possess ill-defined and expansive powers and operate quite closely with private firms. In this unique environment, both regulators and regulated businesses often understand so-called guidance documents as directives. “Regulated firms have historically faced formal and informal penalties for failure to conform to guidance that was nominally non-binding,” Knight and Mocsary write.
What’s more, the DFS, in its official capacity, monitors institutions’ “reputational risks.” Invoking such risks — while perhaps seemingly harmless to the layperson or the 2nd Circuit — suggests some sanction could follow non-compliance.
The 2nd Circuit also handwaved a still starker coercion attempt. Vullo met with insurance marketplace Lloyd’s of London (then an NRA partner) to discuss potential regulatory infractions. According to the complaint, Vullo “made it clear…that DFS was less interested in pursuing the infractions of which she spoke, so long as Lloyd’s ceased providing insurance to gun groups, especially the NRA.” The appeals court concluded that “context shows that she was merely carrying out her regulatory responsibilities.” How Vullo’s threat — enhanced regulatory scrutiny should Lloyd’s continue doing business with the NRA — falls short of coercion remains unanswered in the 2nd Circuit’s opinion.
There is a striking distinction between NRA v. Vullo and the social-media jawboning case. The social-media platforms in question seemed content with — if not outright eager for — official input regarding content moderation (although they often rejected specific government requests). This obscured the boundary between state coercion and platform-solicited advisement.
In NRA v. Vullo, the NRA’s financial partners seemed happy to continue the partnership absent regulatory scrutiny. One partner, Lockton Companies, LLC, “placed a distraught phone call to the NRA,” saying that “it would need to ‘drop’ the NRA for fear of ‘losing [its] license’ to do business in New York,” per a filing from the NRA’s counsel.
Refreshingly, the American Civil Liberties Union announced Saturday that it will represent the NRA.
“We don’t support the NRA's mission or its viewpoints on gun rights, and we don’t agree with their goals, strategies, or tactics,” the ACLU posted on X (formerly Twitter). “But we both know that government officials can't punish organizations because they disapprove of their views.”
Some Wisdom
Alexis de Tocqueville understood American democracy far better than the Americans likely did. The Frenchman, an outsider, could observe and understand its (largely unplanned) genius — something largely impossible for natural-born citizens. Fish don’t know they’re wet, as they say.
Like DiMaggio’s hit streak, Democracy in America will likely never be bested.
He writes:
Not by chance do I first examine the town.
The town is the only association that is so much a part of nature that wherever men are gathered together, a town takes shape by itself.
Town society exists therefore among all peoples no matter what their customs and their laws; it is man who establishes kingdoms and creates republics; the town seems to come directly from the hands of God. But if the town has existed ever since there have been men, town liberty is something rare and fragile. A people can always establish great political assemblies, because it usually contains a certain number of men among whom, to a certain degree, enlightenment takes the place of the practice of public affairs. The town is made up of crude elements that often resist the action of the legislator. Instead of diminishing as nations become more enlightened, the difficulty of establishing town independence increases with their enlightenment. A highly civilized society tolerates the trial efforts of town liberty only with difficulty; it rebels at the sight of its numerous errors and despairs of success before having reached the final result of the experiment.
Of all liberties, town liberty, which is so difficult to establish, is also the most exposed to the encroachments of power. Left to themselves, town institutions could scarcely resist a strong and enterprising government; to defend themselves successfully, they must have reached their fullest development and be mingled with national ideas and habits. Thus, as long as town liberty has not become part of the mores, it is easy to destroy; and it can become part of the mores only after existing in the laws for a long time.
Town liberty therefore escapes human effort so to speak. Consequently it is rarely created; in a sense it arises by itself. It develops almost in secret within a semi-barbaric society. The continuous action of laws and of mores, circumstances, and above all time succeed in its consolidation. You can say that, of all the nations of the European continent, not a single one knows town liberty.
The strength of free peoples resides in the town, however. Town institutions are to liberty what primary schools are to knowledge; they put it within the grasp of the people; they give them a taste of its peaceful practice and accustom them to its use. Without town institutions, a nation can pretend to have a free government, but it does not possess the spirit of liberty. Temporary passions, momentary interests, the chance of circumstances can give it the external forms of independence; but despotism, driven back into the interior of the social body, reappears sooner or later at the surface.
Some Beauty
Shane MacGowan, the legendary Irish punk singer and frontman of the Pogues, recently died. Perhaps more than anybody, he embodied this author’s working theory that Irish music’s hallmark trait is getting some — but not all — of what you want — intertwining pleasure with pain, happiness with grief, success with failure. To understand a little more, read Tim Carney’s tribute.
MacGowan’s funeral was held this week. There, Glen Hansard, Lisa O'Neill, and the Pogues performed “Fairytale of New York.”
The original is damn spectacular too:
“I coulda been someone.”
“Well, so could anyone.”
Indeed.
Also, here’s the Pogues’ “Irish Rover,” with the Dubliners.
Some Humor
Biden needs to replace the intern who drafts his social-media posts.
Sundry Links, &c.
Ordinary Times: “Romeo and Juliet and Civilization”
Daily Caller: “Biden’s Handout To Unions Will Waste Taxpayer Money That Should Go To Infrastructure”
National Interest: “Biden's Lethargic Spectrum Strategy”