Government's Legbreakers

What do the NRA and the ACLU have in common? Not nearly enough, I say, and that insufficiency is why I don't have many kind words for the ACLU. Its long opposition to gun rights, which are as protected by the Constitution as speech, the Press, privacy against unwarranted searches, and others that the ACLU routinely defends, reflects a "cafeteria" attitude toward civil liberties.

Not nearly enough isn't zero, however. Behold, a case of "strange bedfellows." The ACLU has not only thrown in with the NRA in an upcoming Supreme Court case, it has announced that it will actually represent its ideological foe before the nine Justices.

The case, National Rifle Association of America v. Vullo, has massive implications for free speech, and is the latest front in a growing war between the government and those that the government wants to stifle, silence, or eliminate. Reason covers the details here, but the gist of the case is whether the government can use its might to pressure financial service providers such as insurers, credit card companies, banks, and the like not to do business with disfavored persons and organizations.

In this case, Maria Vullo, superintendent of the New York State Department of Financial Services (DFS), issued "guidance" to the financial institutions in the state that urged them not to do business with the NRA. Concurrently, then-governor Andrew Cuomo also "urged" those institutions to "review" their relationships with the NRA.

Mighty nice bank you got there. It'd be a shame if something bad happened to it...

Big-government apologists might offer up "no one's actually forcing the banks and insurers to disassociate" as an excuse. This is either colossally naive or outright disingenuous, as in "we don't like the NRA, so we'll defend the dirty politics." The delusion that but for the NRA no one would argue for gun rights aside, people who get "flexible" with their views on rights when it serves them abet the destruction of all our rights.

The growing technologicalization (yes, I made that up) of our economy, and the mostly but not entirely organic move away from paper money, have fostered all sorts of new ideas in those who would coerce others. Roll back a few years, to a now-defunct company called Backpage. Backpage, founded in 2004, was a classified ad website, akin to Craigslist, that caught the government's eye because some ad placers were offering sex services (aka prostitution). It shut down its Adult Services section in 2010, but didn't comply with demands that it censor ads until 2017. The Backpage saga is long, with multiple battles regarding free speech, the now-infamous Section 230 of the Communications Decency Act, and problematic behavior on both sides.

I won't delve further into it here other than to note that, in 2015, the government sought to demonetize the company by threatening credit card companies with charges of complicity in sex trafficking unless they ceased providing service to Backpage. The government agent making the soft threat was a Cook County, IL sheriff named Tom Dart. Dart asserted free speech protection for his threats, ignoring the fact that, as an agent of the government, he is on the other side of the First Amendment. As in "Government shall make no law..." and all that implies. As a parallel, consider Kim Davis, the Kentucky county clerk who refused to issue same-sex marriage licenses despite same-sex marriage being legal, on religious grounds. Courts rejected her claim and ordered her office to issue those licenses.

Dart was smacked down by the Seventh Circuit, which wrote:

[A] public official who tries to shut down an avenue of expression of ideas and opinions through 'actual or threatened imposition of government power or sanction' is violating the First Amendment.

Davis was also smacked down by the courts.

The threat of financial purgatory has grown with the digitizing of money. Today, being cash-only severely limits your ability to grow your business, and is almost impossible in many cases. The advent of cryptocurrency has the potential to derail the government's power to exercise that sort of "greenback pressure," which is, I suspect, one reason the government makes such a big stink about it. Platforms such as YouTube have already shown us how powerful demonetization is. Someone who makes a living from YouTube can be ruined in an instant if demonetized.

This isn't about guns or prostitution. Those are the canaries in the coal mine, targets picked because they are controversial and because many might be inclined to overlook the abuse of power in order to get their way. No, it goes far beyond those. The power to demonetize is the power to control, and it has reached into journalism and other nexuses of free speech. It's bad enough when big private entities do it, but when the government does the Mafia thing, it's a blatant violation of our Constitutionally protected rights.

In a similar vein, there's the enormous power wielded by state comptrollers who manage hundred billion dollar pension funds. Some of these financial managers have gone ESG (Environmental, Social, and corporate Governance) in their management of those funds. That includes climate action, DEI, and other politically charged areas. As in, "behave as we wish or we will crash your stock price." This is not only an abdication of fiduciary responsibility to the pensioners, but also a coercive imposition of the oxymoronic "stakeholder capitalism."

Vullo has the potential to be a landmark ruling, and I do hope that even the left-leaning Justices stand up for our rights and against a government that has less and less regard for our rights when those rights get in its way. Anything less than a 9-0 decision in this case is its own canary in the coal mine. If the branch of government that is tasked with saying "no" to the other two shows a sign of weakness here, the future will become very bleak.