The Supreme Court will hear two cases on Monday, March 18, that are often referred to as “jawboning” cases — that is, cases where the government tried to pressure private companies into taking certain actions, but without actually using any of its coercive power.
On the surface, the two cases have many similarities. Both involve claims that the First Amendment imposes strict limits on the government’s ability to cajole, hector, or otherwise try to persuade private companies to act in a particular way. But these similarities are only an inch deep.
One case, known as National Rifle Association v. Vullo, involves a fairly obvious violation of the First Amendment.
In National Rifle Association (NRA), New York’s top financial regulator brought a legitimate enforcement action against three insurance companies that did business with the NRA, and these companies agreed to pay a total of $13 million in fines. But then, while this completely benign enforcement action was underway, the same regulator issued a “guidance” to all insurers who do business in the state, warning them to “continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations.”
This guidance was not permitted by the Constitution. A law enforcement agency cannot pressure companies to stop doing business with a political advocacy group that it disagrees with while it is also in the process of collecting millions of dollars in fines from some of those companies. Even though the financial regulator’s “guidance” did not explicitly threaten that more enforcement actions would follow if insurers kept doing lawful business with the NRA, a threat was implied by the regulator’s previous, multimillion-dollar action against insurers associated with the NRA.
The second case, meanwhile, is more fraught. In Murthy v. Missouri, the United States Court of Appeals for the Fifth Circuit — a
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