Choke Point Check-In: Constitutional Concerns in DOJ Targeting ‘Risky’ Businesses

Operation Choke Point was initially pitched as a crackdown on web-based payday lending businesses that lend into states that prohibit it. Now it may have overreached into the wrong industry by targeting those in porn, wrote Iain Murray at National Review. Unlike, say, online gambling sites or Internet pharmacies, making pornography is a protected First Amendment activity.
Also constitutionally protected, obviously, is buying and selling firearms—but businesses selling ammunition and guns are also on a list of potentially high-risk businesses that banks should look out for.  Hans Bader of the Competitive Enterprise Institute looks closer at the potential legal case against Operation Choke Point:

“The First Amendment can be violated by deliberately burdensome investigations, even in the civil context, when the investigation is aimed at a category of speech or speakers, see, e.g., White v. Lee, 227 F.3d 1214 (9th Cir. 2000) (unduly prolonged federal fair-housing investigation violated First Amendment). Indeed, it can violate the First Amendment so clearly that individual federal officials lose their qualified immunity and can be sued individually for damages, as the Ninth Circuit ruled in the White v. Lee decision. And as UCLA Law Professor Eugene Volokh and firearms law expert David Kopel have noted, restrictions can violate the Second Amendment even when they are aimed at sellers, rather than purchasers, of firearms. See, e.g., Kole v. Norridge (2013). So there are serious constitutional issues at stake here. Yet I see little legal commentary on the subject so far.”

“Even if the porn industry had a statistically greater incidence of financial shenanigans than a representative cross-section of the country as a whole, that would not justify the government or financial regulators in suppressing it,” writes Bader, citing a slew of cases to this point.