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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 [government] 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.
For anybody still in doubt, then-Gov. Andrew Cuomo tipped the state’s hand on the platform then known as Twitter. “The regulations NY put in place are working. We’re forcing the NRA into financial jeopardy,” he posted when the NRA complained of losing its financial partners. “We won’t stop until we shut them down.”
Unfortunately for Cuomo and Vullo, the First Amendment shields citizens against precisely this sort of petty tyranny and arbitrary rule. The First Amendment does not bend due to Democrats’ antipathy for the Second. To curb the modern jawboning epidemic, and to enforce the Bill of Rights faithfully, the Supreme Court must correct the 2nd Circuit’s error and rule for the NRA.
— David B. McGarry in New York’s Attempted Hit on the NRA Violated the First Amendment