Sometimes, the U.S. Supreme Court will schedule arguments to create a “theme” day.  In other words, the Court will schedule two cases which are technically unrelated but involve similar issues.  By hearing arguments in the two cases back-to-back, the Justices get two factually different pictures of conduct to point out some of the different ways that the issue might arise and, hopefully, can get some input through both cases on how a particular test for judging whether conduct crossed the line would play out.

This week, we had one of those theme days involving when governmental conduct indirectly infringes on the First Amendment.  The first case, Murthy, Surgeon General, vs. Missouri, arises from the efforts of the Surgeon General’s Office to talk with social media companies about posts containing medically harmful information related to COVID.  The nutty Attorney Generals from Louisiana and Missouri (which at that time was now Senator Eric Schmitt) filed a lawsuit in front of a handpicked judge in the Western District of Louisiana seeking an injunction barring all communications between federal officials and social media companies.  That “judge” granted that request.  The Fifth Circuit narrowed the injunction somewhat but left it substantially intact.   The other case, National Rifle Association vs. Vullo, involves a state financial services regulator trying to persuade regulated entities (banks and insurance companies) that they should stop doing business with the NRA.

What seems to be clear from the arguments in these two cases is that the Supreme Court is likely to make a distinction between persuasion and coercion.  In asking questions, several justices fell back on their own executive branch experience.  In traditional media, it is not unusual for reporters to call government officials asking for comments on a potential story.  In some cases, the story is one that, for a variety of reasons, the government official might prefer that the story not get published (or at least that certain details not run).  Sometimes those reasons are good reasons like in a murder investigation somebody might have leaked a key detail from the crime scene to a reporter which the police were intending to use as a “false confession check” (on the theory that only the killer would know that detail so any nut coming in to take credit for something they did not do would get that detail wrong).  But those reasons might not be strong enough for the government to seek a court order preventing publication.  So the government will try to convince the news media that it would be best if that information was not included in the story.  In making this request, the government might offer a “comp” like an exclusive interview with the police chief on some other topic.  It seems like, in the Murthy case, the Supreme Court is likely to slap the lower court and the state AGs hard for what is really a legally meritless argument.  There is really nothing here suggesting that these claims involve anything beyond routine attempts to persuade media to go with the official story.  And the First Amendment does not prohibit the government from trying to convince publishers to do the right thing.

The New York case involving the NRA seems to be a closer call.  And the ultimate decision might borrow from a traditional tort known as abuse of process.  Abuse of process is a somewhat vague tort which alleges that the defendant brought a claim in a different case to court but used that case for an impermissible purpose.  What makes the case difficult is that it is sometimes hard to draw the line between an improper purpose and a “global” settlement of all pending issues between the parties.  For example,  imagine a family-owned business in which one cousin has been making false claims about the other cousin who is CEO of the business.  Part of settlement negotiations might involve a buyout of the cousin’s interest in the company at a reduced price (the reduction representing the damages from the false statement).  Or imagine a divorce case in which one party seeks an order of protection but offers to drop it in exchange for the other party seeking an increase in the child support amount.

Where this concept fits into the New York case is that the regulator certainly had some legally valid concerns with the relationship that certain insurance companies had with the NRA.  The NRA wanted to work with the insurance companies to offer a form of insurance to its members that was, at least potentially, contrary to New York law.  And so this regulator was well within her authority to tell the insurance companies that her department would take appropriate action if they went forward with that plan.  Where she allegedly crossed the line was telling the banks and insurance companies that they should not work with the NRA at all even on legitimate business.  While there was no express threat that her department would investigate such banks and insurance companies, her comments indicated that she believed that having the NRA as a client was not a prudent business decision (which potentially could lead to investigation of the operations of such banks and insurance companies for mismanagement).  Arguably, the suggestion that there might be a consequence if these companies partnered with an advocacy group that was making politically-disfavored speech crossed the line set by the First Amendment.

As noted at the top, the purpose of a theme day is to help the Court with drawing the line.  It seems likely that the Court will say that the NRA has a claim that was prematurely denied while saying that Louisiana and Missouri are nuts.  By having both cases on the same day, the Court had the opportunity in real time to see the different ways that government can communicate with other about self-censorship and decide where it wishes to draw the line between permissible attempts to persuade others to self-censor and impermissible attempts to coerce that self-censorship.