The Supreme Court of the United States

The National Rifle Association v. The State of Lincoln

Case №20–07 101 M.S.Ct. 116

Ibney, J., delivered the opinion of the Court, in which IAmATinman, C.J., and Bsddc and Reagan0, JJ., joined. RestrepoMU filed an opinion concurring in the judgment, in which JJEagleHawk and CuriositySMBC, JJ., joined.

I. Introduction

In September 2019, the assembly of the State of Lincoln passed R.015 The Nationalist Rebuke Act. The Nationalist Rebuke Act, which is classified as an “act” rather than resolution presumably so that its acronym could also be “NRA”, 1) declares the National Rifle Association of America (hereinafter “NRA”), a domestic terrorist organization, 2) encourages the State of Lincoln to cut ties with the NRA, and 3) encourages all other jurisdictions throughout the United States to follow suit. This act was followed by an Executive Order by then Governor LeavenSilva_42 which proceeded to stop all business with the NRA or NRA affiliated agencies, as well as establish a list of such businesses which do affiliate through the Bureau of Criminal Investigation. On appeal to the Lincoln Supreme Court, the Executive Order was struck down, while the Resolution was upheld under Government Speech Doctrine.

Earlier this year, the Sierran Supreme Court was met with an almost exact challenge to such a resolution. That court found that San Francisco Resolution №190841 was void in that it engaged in viewpoint discrimination by creating a “chilling” effect on the populace through coercing the population into believing that they would be met with reprisal as a result of engaging with the NRA. Lincoln has sustained what Sierra has struck down.

The Lincoln Supreme Court has thus created a “house divided” (contrary to its namesake) and we are tasked with determining whether or not R.015 The Nationalist Rebuke Act violates the First Amendment of the United States Constitution. Because the court below did not consider whether the Nationalist Rebuke Act creates a “chilling” effect, we vacate its judgement and remand for the Supreme Court of Lincoln to reconsider the case.

II. Government Speech and Chilling Effects

In the immortal words of Jedi Master Qui Gon Jinn, “[t]he ability to speak does not make you intelligent.”¹ Our Founding Fathers affirmed within our Constitution the right to speech and expression through the First Amendment. To that extent, time and time again this Court has upheld the right of the Government itself to engage in speech so long as it does not infringe on the populace’s protected rights.² This right is affirmed even if what is being stated is incorrect, and is also affirmed for the greatest expression of the people’s voice: The Legislature.

In Pleasant Grove, Utah v. Summum, 555 U.S. 460 (2009), the court found that the government was protected under Government Speech doctrine and not subject to strict scrutiny. In that case it was not viewpoint discrimination to not include Summum monuments in a public park which displayed privately donated monuments of the Ten Commandments. Because it was donated through private means and was there to enhance the display, it was determined to not be cause for concern and the placing of such monuments was upheld. However, “[t]his does not mean that there are no restraints on government speech.” Id. In Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), a government agency created a list of books which was considered “objectionable” and forwarded it to sellers with the implied possibility of criminal prosecution. The court found that this was tantamount to viewpoint discrimination as it applied government pressure through the use of threats of prosecution. In short, it created a “chilling” effect.

A. Determining the Temperature

When considering whether or not an action by the government creates a chilling effect, it is important to understand exactly what constitutes a chilling effect. In Bantam Books, the court took particular issue with the Commission’s use of “informal sanctions” to target what they determined to be content of objectionable character.

“People do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them[.] […] The Commission’s notices, phrased virtually as orders [..] in fact stopped the circulation of the listed publications ex proprio vigore. It would be naive to credit the State’s assertion that these blacklists are in the nature of mere legal advice when they plainly serve as instruments of regulation independent of the laws against obscenity.” 372 U. S. 68–69

Within the analysis of Bantam Books, it is apparent that the government’s intention was to restrict normally protected activities through the use of threats and orders. Though these had no legal backing, they effectively convinced a reasonable person that their business may be subject to legal action if they did not comply. Whether that action came or not, it did not matter. It was simply a subject of the government using its authority to coerce the business into believing they may be subject to legal troubles.³

Thus, to determine if a government has created a chilling effect, we must ask whether the government has used actions that amount to coercion or threats of coercion to cause a population to refrain from partaking in constitutionally protected speech.

B. Defrosting Effect(ivly)

In determining the government’s intentions, we must look at the resolution itself, and at the cases surrounding this action. The resolution itself begins by declaring the NRA a “domestic terrorist organization”, before urging the government to cut all ties with the organization, as well as urging other jurisdictions to do the same. The Domestic Terrorist Organization has specific meaning under 18 U.S. Code § 2331 (5), but has no meaning within the State of Lincoln itself.⁴

As a result of the call from the assembly to cut all ties with the NRA, the Governor of Lincoln did just that. In Executive Order 36, the governor both cut all business with the NRA and any person or company affiliating with them, and instructed the Bureau of Criminal Investigations to begin compiling a list of such affiliates. The court struck down the Executive Order as viewpoint discrimination, however, in a sister case, chose to uphold the resolution as government speech. In this action, the lower court erred in judgement.

When determining the existence of a “chilling” effect, a court must observe the totality of the circumstances and come to a conclusion on whether or not the government engaged in coercion. Relevant evidence in this case includes the very act of declaring the NRA a “domestic terrorist organization.” So too are the unveiled threats of cutting ties — and the actual attempt to cut such ties — with all affiliated businesses.

Additionally, as noted by the Sierran Supreme Court, “it is well established that ‘constitutional violations may arise from the deterrent, or ‘chilling,’ effect of governmental regulations that fall short of a direct prohibition against First Amendment rights.’ Laird v. Tatum, 408 U.S. 1, 11 (1972).”⁵ An action by the government need not engage in actual consequences or even allege them for it to be subject to “chilling” effect analysis. It must simply unjustly coerce or threaten a population for the exercise of protected speech. The Lincoln Supreme Court failed to consider whether a chilling effect was created by the Nationalist Rebuke Act, instead concluding that the resolution was governmental speech. That was erroneous. Government speech is not protected to the extent it creates a chilling effect based on the content of speech or viewpoint expressed by a speaker.

We also note that the court below reasoned that “While it is clear that the Legislature disapproves of the NRA and its activities, it has yet to place any burden on the NRA for its protected speech activity. No state agency is prohibited from dealing with the NRA, despite its unfortunate new moniker.” That was equally wrong. First, the Governor initially tried to do exactly what the resolution encouraged meaning a real burden was put in place on the NRA. Second, it is incorrect to reason that actual coercion must occur to violate the First Amendment. All that must be shown is a chilling effect.

Thus, the reasoning of the Lincoln Supreme Court is incomplete. We vacate its judgment because it failed to consider whether the resolution created a chilling effect on speech.⁶

III. Scrutinizing Scrutiny

If a government action creates a chilling effect based on content or a viewpoint expressed, it must survive strict scrutiny. Traditionally, content-based restrictions must survive strict scrutiny, whereas, content-neutral restrictions must survive intermediate scrutiny.⁷ Neither Respondent or Petitioner make any note of what standard of scrutiny should be observed, so thus it is up to the court to determine the best applicable method. We hold that if the court below finds a chilling effect as we have explained above, it should apply strict scrutiny to the resolution.

A. Not Subject to Neutrality, Based Upon Viewpoint

Generally, content-neutral restrictions must be both viewpoint neutral, in that it does not discriminate against a particular set of beliefs or views and instead encompasses all viewpoints related to the subject, and subject matter neutral, in that it does not discriminate against the subjects which are restricted. Simply, it must not pick and choose the ideas which are allowed or discouraged.⁸

We caution that even though strict scrutiny may apply, that is not fatal to government action. If the government shows a compelling interest and narrow tailoring, the government action may be maintained. See Robert Carey v. Dixie Inn, LLC, 101 M.S.Ct. 112 (2019) (finding narrow tailoring of a public accommodations statute serving the compelling interest of eliminating discrimination); Williams-Yulee v. The Florida Bar, 575 US __ (2015) (finding narrow tailoring of an election statute regulating a judicial candidate’s speech).

But if an action is over or underinclusive, that is typically fatal to the government action. See Assorted Homosexuals of Sierra v. United States Food and Drug Administration, Case № 20–02 101 M.S.Ct. 115 (2020). We also stress that the compelling interest at issue must be legitimate. For example, if the court below finds the resolution was intended to embarrass the NRA for their political advocacy and imply that those who associate with them will be punished, neither interest would be legitimate. The government is constitutionally prohibited from attempting to silence those with whom it disagrees.

IV. Conclusion

The Sierran Supreme Court found that it was necessary prior to their conclusion to give a word of warning in regards to the possible onslaught of attempts to strike down otherwise valid resolutions for creating a chilling effect. We do not find it necessary to create a full section for such, but do find it necessary to agree that the circumstances which merit a resolution’s classification as creating a “chilling” effect are few and far between. It is only when government action goes beyond expressing a viewpoint and instead attempts to coerce or threaten other viewpoints that a non-binding resolution should be struck down.

The actions of the legislature in this case arguably create a “chilling” effect on the speech of the NRA, as well as the ability of others to associate with the NRA. The court below did not consider this possibility. That failure was erroneous meaning the decision below cannot stand. Our instructions to the Lincoln Supreme Court are to evaluate whether the resolution creates a chilling effect, and if so, whether the resolution survives strict scrutiny.

The judgment of the Lincoln Supreme Court is VACATED AND REMANDED to the lower court for a decision not inconsistent with this opinion.

It is so ordered.

Justice RestrepoMU concurring in judgement only, joined by JJEagleHawk and CuriositySMBC, JJ.

Before the Court is a question relating to a Resolution passed by the Lincoln Legislature, deeming the National Rifle Association (NRA) a terrorist organization, and urging private business to break all ties with them. The Majority has already laid out the facts of the case very reasonably, so there appears to be no reason to belay the point. But while the Majority ultimately reaches the correct judgement, that the resolution must be struck, they err in their reasoning. In considering only the chilling effect of the language in the resolution, they overlook the Legislatures attempt to declare the NRA a terrorist organization.

I. Due Process

Terrorism is no new threat to the US. For much of the life of our nation, our people have been subject to violence, and the threat thereof, from all manner of groups. Terrorists may act alone, or in concert with others, but the typical definition is a person or people who seek a political aim, and use threats or violence to achieve those aims. They often target innocent civilians, or critical infrastructure and officials. While the Court has long viewed that the Government may take extraordinary action beyond their normal limits (see most unfortunately Korematsu v. United States 323 US 214 (1944)), there must always exist procedural safeguards against the tyranny of the state. This is the role of due process in our society.

As we so often do, we may look to the Magna Carta for the first legal interpretation of due process in the Anglo-American legal tradition. Chapters 39 and 40 of the Magna Carta state: “No freemen shall be taken or imprisoned . . . or in any way destroyed . . . except by the lawful judgment of his peers or by the law of the land. To no one will we sell, to no one will we refuse or delay, right or justice.” In the 1884 case of Hurtado v. California (110 US 516 (1884)), the Court said:

“Due process of law in the [Fourteenth Amendment] refers to that law of the land in each state which derives its authority from the inherent and reserved powers of the state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure.”

There is perhaps no better summary of due process in America than Justice Harlan’s dissent in Poe v. Ullman 367 US 497 (1961), where he wrote that due process:

[I]n the consistent view of this Court has ever been a broader concept. . . . Were due process merely a procedural safeguard it would fail to reach those situations where the deprivation of life, liberty or property was accomplished by legislation which by operating in the future could, given even the fairest possible procedure in application to individuals, nevertheless destroy the enjoyment of all three. Thus the guaranties of due process, though having their roots in Magna Carta’s “per legem terrae” and considered as procedural safeguards “against executive usurpation and tyranny,” have in this country “become bulwarks also against arbitrary legislation.”

II. Terrorism

How then, does this relate to terrorism? This Court has tackled issues relating to the rights of suspected terrorists before, most notably in Boumediene v. Bush (553 US 723 (2008), where the Defendants were considered “enemy combatants”). This Court held, among other questions, that the detainees were entitled to due process despite their designation, and the location of their detention. Clearly this Court has taken the stance that designations like ‘terrorist’ and ‘enemy combatant’ can not strip an individual of their due process.

In National Council of Resistance v. Dept. of State (251 F3d 192 (DC Cir 2001)), the Court of Appeals for the District of Columbia Circuit Court handled a similar case to the one facing us today. After being deemed terrorist organizations by the US Department of State under the Anti-Terrorism and Effective Death Penalty Act of 1996, the National Council of Resistance of Iran and the People’s Mojahedin Organization of Iran sued arguing a violation of their rights. Writing the opinion for the Court, Justice Sentelle wrote that: “As petitioners argue, the fundamental norm of due process clause jurisprudence requires that before the government can constitutionally deprive a person of the protected liberty or property interest, it must afford him notice and hearing.”

It’s important to note here that due process does not strip the government of its power to act, particularly in the face of ongoing or imminent threats to the nation. Rather that they must be within the bounds of the law. Justice Sentelle touched on this in his opinion: “This is not to say that the government cannot interfere with that and many other rights of foreign organizations present in the United States; it is only to say that when it does so it is subject to the Due Process Clause.”

We should here consider the Lincoln Resolution (which is titled as an Act, likely to allow for aesthetically pleasing alliteration, but is legally a Resolution), which stated that the NRA “shall be declared a domestic terrorist organization.” While Terrorism is certainly defined, and terrorist acts are illegal, there exists no legal mechanism for an official designation in the Lincoln cannon. Neither are there any such statues in Federal law referring to Domestic Terrorism. While some may argue that the designation was intended to be merely symbolic, the next two provisions of the Resolution show that to be impossible. The most reasonable and rational reading of the Resolution is that the Assembly intended their declaration to have legal force, and tangible effect.

The first grave issue with the Resolution then, is that it lacks any basis in Lincoln law. As no such statue exists to empower the Legislature to designate organizations as terrorists, the Legislature acted Ultra Vires. But we should also consider whether if the power had existed, would their actions have been Constitutional?

III. Good Name

In Wisconsin v. Constantineau (400 US 433 (1971)), Justice Douglas wrote that “where the State attaches “a badge of infamy” to the citizen, due process comes into play” here citing Wieman v. Updegraff. He continues:

“Where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential[…] Only when the whole proceedings leading to the pinning of an unsavory label on a person are aired can oppressive results be prevented.”

It is highly likely that the motivations of the Legislature were ideological, officious and capricious when they branded the NRA a terrorist organization (and indeed, this Court should not here take a position on this specific designation), but the opportunity to publicly address the designation, and potential potential political motives, was never afforded the petitioners.

Here then, our respectful disagreement with the majority comes to light. It is not the effect of the language in the resolution that we should be concerned with, but whether the Lincoln Legislature overstepped in its efforts. Surely, if the Lincoln Assembly were writing the identical resolution concerning a true Domestic Terrorist threat, one who had claimed innocent lives in a devastating attack for example, the language would be found to be appropriately chilling. One could scarcely imagine this Court rebuking a Resolution calling for the State of Lincoln to ‘cut ties with Timothy McVeigh, and to limit doing business with those who have ties to this person’.

The question before us is, or at least should be, was the NRA afforded due process by the Lincoln Assembly when they were declared a Terrorist Organization? The answer is emphatically no. Given the clear motivation and tactics of the Assembly, the whole Resolution should be struck.

The Majority raises the reasonable point that this line of reasoning was not raised in either State Court, or in arguments in this Court. But to that I would point out that we have not always restricted ourselves to the limitations of the imaginations of petitioners and respondents. This Court has a responsibility to address the issues before us, and on occasion the most pressing of them are not raised explicitly, but that does not make them any less pressing. Indeed, I would go so far as to say that both lower Courts erred in their analysis. One in almost expressly allowing the government the power to declare a group a terrorist organization, and the other in not addressing it at all.

In that same thought, the idea that the Majority could find a call to cut business ties with the NRA ‘chilling’, but overlook the terrifying scenario that a Legislature could declare any organization or person terrorists with no due process of law, is truly concerning.

Make no mistake, the Majority’s opinion is well written, and the legal analysis is superb. It will be an excellent opening opinion for the honorable Justices who have signed onto it. But this Court should not ignore the urgent and worrying efforts of the Legislature, reminiscent of the young first French Republic declaring persons ‘Enemy of the State’ with no legal recourse. As we seek the same ends, I will join in the Judgement only. But I cannot join the reasoning.

¹ George Lucas, Star Wars Episode I — The Phantom Menace (1999; Los Angeles: 20th Century Fox), Film.

² Wooley v. Maynard, 430 U.S. 705 (1977).

³ Though the warnings could be ignored, it is typical of otherwise law abiding businesses to not wish to bring about any action which may lead them to trouble with the law. It was observed within the facts of Bantam Books that the actions of the commission were effective in their goal of discouraging sale because no one wished to stick their head out to be first struck.

⁴ Respondents themselves even pointed out that this section may even be void as it is beyond the powers of the Assembly to do such. See Respondent’s Brief on the Merits.

⁵ In Re: San Francisco Resolution №190841, Case №20–01 (Sierra 2020).

⁶ The Court shares the concerns raised by the concurrence. The thought that the government could simply designate a group as a “domestic terror organization” to curtail their rights without greater procedural protections seems to be incompatible with our Constitution. That argument cannot be the grounds for decision, however, as it was never raised or mentioned by the parties at all. It was not before the lower court, and deciding the case along those lines would be a fundamental departure from the basics of how litigation works. See Lincoln v. Chesapeake, Case №20–04, Dismissal Order (M.S. Ct. 2020).

⁷ Turner Broadcasting System v. Federal Communications Commission, 512 U.S. 622 (1994).

⁸ Perry Educ. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45 (1983).