National Rifle Association of America v. Vullo

P R E L I M I N A R Y P R I N T
Volume 602 U. S. Part 1
Pages 175–204
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
May 30, 2024
REBECCA A. WOMELDORF
reporter of decisions
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Syllabus
NATIONAL RIFLE ASSOCIATION OF AMERICA v.
VUL
LO
certiorari to the united states court of appeals for
the second circuit
No. 22–842. Argued March 18, 2024—Decided May 30, 2024
Petitioner National Rifle Association (NRA) sued respondent Mar ia
Vullo—former superintendent of the New York Department of Financial
Services (DFS)—alleging that Vullo violated the First Amendment by
coercing DFS-regulated parties to punish or suppress the NRA's gun-
promotion advocacy. The Second Circuit held that Vullo's alleged
actions constituted permissible government speech and legitimate law
enforcement. The Court granted certiorari to address whether the
NRA's complaint states a First Amendment claim.
The NRA's “well-pleaded factual allegations,” Ashcroft v. Iqbal, 556
U. S. 662, 678–679, are taken as true at this motion-to-dismiss stage.
DFS regulates insurance companies and fnancial services institutions
doing business in New York, and has the power to initiate investigations
and civil enforcement actions, as well as to refer matters for criminal
prosecution. The NRA contracted with DFS-regulated entities—
affliates of Lockton Companies, LLC (Lockton)—to administer insur-
ance policies the NRA offered as a beneft to its members, which Chubb
Limited (Chubb) and Lloyd's of London (Lloyd's) would then underwrite.
In 2017, Vullo began investigating one of these affnity insurance
policies—Carry Guard—on a tip passed along from a gun-control advo-
cacy group. The investigation revealed that Carry Guard insured gun
owners from intentional criminal acts in violation of New York law, and
that the NRA promoted Carry Guard without the required insurance
producer license. Lockton and Chubb subsequently suspended Carry
Guard. Vullo then expanded her investigation into the NRA's other
affnity insurance programs.
On February 27, 2018, Vullo met with senior executives at Lloyd's,
expressed her views in favor of gun control, and told the Lloyd's execu-
tives “that DFS was less interested in pursuing ” infractions unrelated
to any NRA business “so long as Lloyd's ceased providing insurance to
gun groups, especially the NRA.” App. to Pet. for Cert. 199–200, ¶21.
Vullo and Lloyd's struck a deal: Lloyd's “would instruct its syndicates
to cease underwriting frearm-related policies and would scale back its
NRA-related business,” and “in exchange, DFS would focus its forth-
coming affnity-insurance enforcement action solely on those syndicates
which served the NRA.” Id., at 223, ¶69.

176 N
ATIONAL RIFLE ASSOCIATION OF AMERICA v. VULLO
Syllabus
On April 19, 2018, Vullo issued letters entitled, “Guidance on Risk
Management
Relating to the NRA and Similar Gun Promotion Organi-
zations.” Id., at 246–251 (Guidance Letters). In the Guidance Letters,
Vullo “encourage[d]” DFS-regulated entities to: (1) “continue evaluating
and managing their risks, including reputational risks, that may arise
from their dealings with the NRA or similar gun promotion organiza-
tions”; (2) “review any relationships they have with the NRA or similar
gun promotion organizations”; and (3) “take prompt actions to manag[e]
these risks and promote public health and safety.” Id., at 248, 251.
Vullo and Governor Cuomo also issued a joint press release echoing
many of the letters' statements, and “ `urg[ing] all insurance companies
and banks doing business in New York' ” to join those “ `that have al-
ready discontinued their arrangements with the NRA.' ” Id., at 244.
DFS subsequently entered into separate consent decrees with Lockton,
Chubb, and Lloyd's, in which the insurers admitted violations of New
York's insurance law, agreed not to provide any NRA-endorsed insur-
ance programs (even if lawful), and agreed to pay multimillion dollar
fnes.
Held: The NRA plausibly alleged that respondent violated the First
Amendment by coercing regulated entities to terminate their business
relati onsh ips w ith the NRA i n order to punish or suppress g un-
promotion advocacy. Pp. 187–199.
(a) At the heart of the First Amendment's Free Speech Clause is the
recognition that viewpoint discrimination is uniquely harmful to a free
and democratic society. When government offcials are “engaging in
their own expressive conduct,” though, “the Free Speech Clause has
no application.” Pleasant Grove City v. Summum, 555 U. S. 460, 467.
“When a government entity embarks on a course of action, it necessarily
takes a particular viewpoint and rejects others,” and thus does not need
to “maintain viewpoint-neutrality when its offcers and employees speak
about that venture.” Matal v. Tam, 582 U. S. 218, 234. While a gov-
ernment offcial can share her views freely and criticize particular be-
liefs in the hopes of persuading others, she may not use the power of
her offce to punish or suppress disfavored expression.
In Bantam Books, Inc. v. Sullivan, 372 U. S. 58, this Court explored
the distinction between permissible attempts to persuade and impermis-
sible attempts to coerce. The Court explained that the First Amend-
ment prohibits government offcials from relying on the “threat of invok-
ing legal sanctions and other means of coercion . . . to achieve the
suppression” of disfavored speech. Id., at 67. Although the defendant
in Bantam Books, a state commission that blacklisted certain publica-
tions, lacked the “power to apply formal legal sanctions,” the coerced
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177
Syllabus
party “reasonably understood” the commission to threaten adverse ac-
ti
on, and thus its “compliance with the [c]ommission's directives was not
voluntary.” Id., at 66–68. To reach this conclusion, the Court consid-
ered things like: the commission's authority; the commission's communi-
cations; and the coerced party's reaction to the communications. Id.,
at 68. The Courts of Appeals have since considered similar factors to
determine whether a challenged communication is reasonably under-
stood to be a coercive threat. Ultimately, Bantam Books stands for the
principle that a government offcial cannot directly or indirectly coerce
a private party to punish or suppress disfavored speech on her behalf.
Pp. 187–191.
(b) To state a claim that the government violated the First Amend-
ment through coercion of a third party, a plaintiff must plausibly allege
conduct that, viewed in context, could be reasonably understood to con-
vey a threat of adverse government action in order to punish or sup-
press speech. See Bantam Books, 372 U. S., at 67–68. Here, the NRA
plausibly alleged that Vullo violated the First Amendment by coercing
DFS-regulated entities into disassociating with the NRA in order to
punish or suppress gun-promotion advocacy.
As DFS superintendent, Vullo had direct regulatory and enforcement
authority over all insurance companies and fnancial service institutions
doing business in New York. She could initiate investigations, refer
cases for prosecution, notice civil charges, and enter into consent de-
crees. Vullo's communications with the DFS-regulated entities, partic-
ularly with Lloyd's, must be considered against the backdrop of Vullo's
authority. Vullo made clear she wanted Lloyd's to disassociate from all
gun groups, although there was no indication that such groups had un-
lawful insurance policies similar to the NRA's. Vullo also told the
Lloyd's executives she would “focus” her enforcement actions “solely”
on the syndicates with ties to the NRA, “and ignore other syndicates
writing similar policies.” App. to Pet. for Cert. 223, ¶69. The message
was loud and clear: Lloyd's “could avoid liability for [unrelated] infrac-
tions” if it “aided DFS's campaign against gun groups” by terminating
its business relationships with them. Ibid. As the reaction from
Lloyd's further confrms, Vullo's alleged communications—whether seen
as a threat or as an inducement—were reasonably understood as coer-
cive. Other allegations concerning the Guidance Letters and accompa-
nying press release, viewed in context of their issuance, reinforce the
NRA's First Amendment claim. Pp. 191–194.
(c) The Second Circuit concluded that Vullo's alleged communications
were “examples of permissible government speech” and “legitimate en-
forcement action.” 49 F. 4th 700, 717–719. The Second Circuit could
only reach this conclusion, however, by taking the complaint's allega-

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178 N
ATIONAL RIFLE ASSOCIATION OF AMERICA v. VULLO
Syllabus
tions in isolation and failing to draw reasonable inferences in the
NRA
's favor.
Vullo's arguments to the contrary lack merit. The conceded illegality
of the NRA-endorsed insurance programs does not insulate Vullo from
First Amendment scrutiny under Bantam Books. Nor does her argu-
ment that her actions targeted “nonexpressive” business relationships
change the fact that the NRA alleges her actions were aimed at punish-
ing or suppressing speech. Finally, Vullo claims that the NRA's posi-
tion, if accepted, would stife government speech and hamper legitimate
enforcement efforts, but the Court's conclusion simply reaffrms the gen-
eral principle that where, as here, the complaint plausibly alleges coer-
cive threats aimed at punishing or suppressing disfavored speech, the
plaintiff states a First Amendment claim. Pp. 194–197.
(d) The NRA's allegations, if true, highlight the constitutional con-
cerns with the kind of strategy that Vullo purportedly adopted. Al-
though the NRA was not the directly regulated party here, Vullo alleg-
edly used the power of her offce to target gun promotion by going after
the NRA's business partners. Nothing in this case immunizes the NRA
from regulation nor prevents government offcials from condemning dis-
favored views. The takeaway is that the First Amendment prohibits
government offcials from wielding their power selectively to punish or
suppress speech, directly or (as alleged here) through private intermedi-
aries. Pp. 197–198.
49 F. 4th 700, vacated and remanded.
Sotomayor, J., delivered the opinion for a unanimous Court. Gor-
such, J., post, p. 199, and Jackson, J., post, p. 199, fled concurring
opinions.
David D. Cole argued the cause for petitioner. With him
on the briefs were Eugene Volokh, William A. Brewer III,
Sarah B. Rogers, Noah Peters, Cecillia D. Wang, Jennifer
Stisa Granick, Alan B. Morrison, Brian Hauss, Vera Eidel-
man, Jennesa Calvo-Friedman, and Ben Wizner.
Ephraim A. McDowell argued the cause for the United
States as amicus curiae urging vacatur. With him on the
brief were Solicitor General Prelogar, Principal Deputy
Assistant Attor ney General Boynton, Deputy Sol ici tor
General Fletcher, Sopan Joshi, Daniel Tenny, and Daniel
Winik.

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179
Counsel
Neal Kumar Katyal argued the cause for respondent.
W
ith him on the brief were William E. Havemann, Danielle
Desaulniers Stemple, Reedy C. Swanson, Mary B. McCord,
William Powell, Trevor W. Morrison, Andrew G. Celli, Jr.,
and Debra L. Greenberger.*
*Briefs of amici curiae urging reversal were fled for the State of Mon-
tana et al. by Austin Knudsen, Attorney General of Montana, Christian B.
Corrigan, Solicitor General, and Peter M. Torstensen, Jr., Deputy Solicitor
General, and by the Attorneys General for their respective States as fol-
lows: Steve Marshall of Alabama, Treg Taylor of Alaska, Tim Griffn of
Arkansas, Christopher M. Carr of Georgia, Raúl R. Labrador of Idaho,
Brenna Bird of Iowa, Kris Kobach of Kansas, Russell Coleman of Ken-
tucky, Liz Murrill of Louisiana, Andrew Bailey of Missouri, Michael T.
Hilgers of Nebraska, John M. Formella of New Hampshire, Drew H.
Wrigley of North Dakota, Dave Yost of Ohio, Gentner F. Drummond of
Oklahoma, Alan Wilson of South Carolina, Marty J. Jackley of South Da-
kota, Jonathan Skrmetti of Tennessee, Sean D. Reyes of Utah, Jason Miy-
ares of Virginia, Patrick Morrisey of West Virginia, and Bridget Hill of
Wyoming; for the State of Indiana et al. by Theodore E. Rokita, Attorney
General of Indiana, James A. Barta, Solicitor General, and Lynn Fitch,
Attorney General of Mississippi; for Advancing American Freedom et al.
by J. Marc Wheat; for the American Center for Law and Justice by Jay
Alan Sekulow, Stuart J. Roth, Jordan A. Sekulow, Craig L. Parshall, and
Walter M. Weber; for the Americans for Prosperity Foundation by Cyn-
thia Fleming Crawford; for the Buckeye Institute by Jay R. Carson and
David C. Tryon; for the Competitive Enterprise Institute by Devin Wat-
kins and Dan Greenberg; for Consumers' Research by Christopher E.
Mills; for Financial and Business Law Scholars by R. Trent McCotter,
Jonathan Berry, and Brian R. Knight and George A. Mocsary, both
pro se; for the Firearm Policy Coalition, Inc., by David H. Thompson and
Peter A. Patterson; for First Amendment Scholars by Lisa S. Blatt and
Joseph M. Terry; for the Foundation for Individual Rights and Expression
et al. by Robert Corn-Revere, Ronald G. London, Joshua A. House, Lee
Rowland, John W. Whitehead, and Edward S. Rudofsky; for the Goldwa-
ter Institute et al. by Timothy Sandefur and Anastasia P. Boden; for Gun
Owners of America et al. by William J. Olson, Jeremiah L. Morgan, Rob-
ert J. Olson, Mark J. Fitzgibbons, Michael J. Boos, and John I. Harris
III; for Heartbeat International, Inc., by John J. Bursch, Samuel J. Sala-
rio, Jr., James A. Campbell, Jeremy D. Tedesco, and Travis C. Barham;
for the National Association for Gun Rights et al. by David A. Warrington
and Gary M. Lawkowski; for the New Civil Liberties Alliance by Jenin

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180 N
ATIONAL RIFLE ASSOCIATION OF AMERICA v. VULLO
Opinion of the Court
Justice Sotomayor delivered the opinion of the Court.
Six
decades ago, this Court held that a government entity's
“threat of invoking legal sanctions and other means of coer-
cion” against a third party “to achieve the suppression” of
disfavored speech violates the First Amendment. Bantam
Books, Inc. v. Sullivan, 372 U. S. 58, 67 (1963). Today, the
Court reaffrms what it said then: Government offcials can-
not attempt to coerce private parties in order to punish or
suppress views that the government disfavors. Petitioner
National Rife Association (NRA) plausibly alleges that re-
spondent Maria Vullo did just that. As superintendent of
the New York Department of Financial Services, Vullo alleg-
edly pressured regulated entities to help her stife the NRA's
Younes and Mark Chenoweth; for Project for Privacy and Surveillance
Accountability, Inc., by Gene C. Schaerr, Erik S. Jaffe, and Kenneth A.
Klukowski; for the Second Amendment Foundation et al. by Joseph G. S.
Greenlee, David B. Kopel, and Jonathan D. Guze; for Sen. Ted Budd et al.
by James R. Lawrence III; and for James P. Corcoran by Brett A. Shumate
and Charles E. T. Roberts.
Briefs of amici curiae urging affrmance were fled for the State of Hawaii
et al. by Anne E. Lopez, Attorney General of Hawaii, Kaliko`ona
̄
lani D. Fer-
nandes, Solicitor General, and Ewan C. Rayner and Thomas J. Hughes, Dep-
uty Solicitors General, and by the Attorneys General for their respective
States as follows: Kathleen Jennings of Delaware, Anthony G. Brown of
Maryland, Dana Nessel of Michigan, Keith Ellison of Minnesota, Aaron D.
Ford of Nevada, Raúl Torrez of New Mexico, Ellen F. Rosenblum of Oregon,
Charity R. Clark of Vermont, and Robert W. Ferguson of Washington; for
First Amendment Scholars by Matteo Godi; for Former and Current Prose-
cutors et al. by Geoffrey M. Pipoly; for Former Executive Offcers of the
New York State Department of Financial Services by Daniel S. Alter; and
for Former State Commissioners of Insurance et al. by Beth C. Neitzel.
Briefs of amici curiae were fled for the Brady Center to Prevent Gun
Violence by Timothy C. Hester, Douglas N. Letter, and Shira Lauren Feld-
man; for the Claremont Institute's Center for Constitutional Jurisprudence
by John C. Eastman and Anthony T. Caso; for Federal Courts and Civil Pro-
cedure Scholars by Thomas G. Sprankling; for Financial Regulation and Ad-
ministrative Law Scholars by Cyrus Vance; and for the International Munic-
ipal Lawyers Association by Meaghan VerGow, Amanda Karras, and
Erich Eiselt.

Cite
as: 602 U. S. 175 (2024)
181
Opinion of the Court
pro-g un advocacy by threateni ng enforcement ac ti ons
agai
nst those entities that refused to disassociate from the
NRA and other gun-promotion advocacy groups. Those al-
legations, if true, state a First Amendment claim.
I
A
Because this case comes to us at the motion-to-dismiss
stage, the Court assumes the truth of “well-pleaded factual
allegations” and “reasonable inference[s]” therefrom. Ash-
croft v. Iqbal, 556 U. S. 662, 678–679 (2009). Unless stated
otherwise, the allegations aver as follows:
The New York Department of Financial Services (DFS)
oversees insurance companies and fnancial services institu-
tions doing business in the State. See N. Y. Fin. Servs. Law
Ann. § 201(a) (West 2012). DFS can initiate investigations
and civil enforcement actions against regulated entities,
and can refer potential criminal violations to the State's at-
torney general for prosecution. §§ 301(b), (c)(4). The DFS-
regulated entities in this case are insurers that had business
relationships with the NRA.
Since 2000, the NRA has offered a variety of insurance
programs as a beneft to its members. The NRA contracted
with affliates of Lockton Companies, LLC (Lockton), to ad-
minister the various policies of these affnity insurance pro-
grams, which Chubb Limited (Chubb) and Lloyd's of London
(Lloyd's) would then underwrite. In return, the NRA re-
ceived a percentage of its members' premium payments.
One of the NRA's affnity products, Carry Guard, covered
personal-injury and criminal-defense costs related to li-
censed frearm use, and “insured New York residents for in-
tentional, reckless, and criminally negligent acts with a fre-
arm that injured or killed another person.” 49 F. 4th 700,
707 (CA2 2022).
In September 2017, a gun-control advocacy group con-
tacted the New York County District Attorney's offce to tip
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182 N
ATIONAL RIFLE ASSOCIATION OF AMERICA v. VULLO
Opinion of the Court
them off to “compliance infrmities in Carry Guard.” App.
to
Pet. for Cert. 206, Second Amended Complaint ¶34. That
offce then passed on the allegations to DFS. The next
month, then-Superintendent of DFS Vullo began investigat-
ing Carry Guard, focusing on Chubb and Lockton. The in-
vestigation revealed at least two kinds of violations of New
York law: that Carry Guard insured intentional criminal acts,
and the NRA promoted Carry Guard without an insurance
producer license. By mid-November, upon fnding out about
the investigation following DFS information requests, Lock-
ton and Chubb suspended Carry Guard. Vullo then ex-
panded her investigation into the NRA's other affnity insur-
ance programs, many of which were underwritten by Lloyd's
and administered by Lockton. These NRA-endorsed pro-
grams provided similar coverage and suffered from the same
legal infrmities.
In the midst of the investigation, tragedy struck Parkland,
Florida. On February 14, 2018, a gunman opened fre at
Marjory Stoneman Douglas High School, murdering 17 stu-
dents and staff members. Following the shooting, the NRA
and other gun-advocacy groups experienced “intense back-
lash” across the country. 49 F. 4th, at 708. Major business
institutions, including DFS-regulated entities, spoke out
against the NRA, and some even cut ties with the organiza-
tion. App. to Pet. for Cert. 244. MetLife, for example,
ended a discount program it offered with the NRA. On
February 25, 2018, Lockton's chairman “placed a distraught
telephone call to the NRA,” in which he privately shared
that Lockton would sever all ties with the NRA to avoid
“ `losing [its] license' to do business in New York.” Id., at
209, Complaint ¶42. Lockton publicly announced its deci-
sion the next day. Following Lockton's decision, the NRA's
corporate insurance carrier also severed ties with the organi-
zation and refused to renew coverage at any price. The
NRA contends that Lockton and the corporate insurance car-
rier took these steps not because of the Parkland shooting
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Opinion of the Court
but because they feared “reprisa[l]” from Vullo. Id., at 210,
¶44;
see id., at 209–210, ¶¶41–43.
Around that time, Vullo also began to meet with execu-
tives at the insurance companies doing business with the
NRA. On February 27, Vullo met with senior executives at
Lloyd's. There, speaking on behalf of DFS and then-
Governor Andrew Cuomo, Vullo “presented [their] views on
gun control and their desire to leverage their powers to
combat the availability of frearms, including specifcally by
weakening the NRA.” Id., at 221, ¶67. She also “discussed
an array of technical regulatory infractions plaguing the
affnity-insurance marketplace” in New York. Id., at 199,
¶21. Vullo told the Lloyd's executives “that DFS was less
interested in pursuing the[se] infractions” unrelated to any
NRA business “so long as Lloyd's ceased providing insurance
to gun groups, especially the NRA.” Id., at 199–200, ¶21;
accord, id., at 223, ¶69 (alleging that Vullo made it clear to
Lloyd's that it “could avoid liability for infractions relating
to other, similarly situated insurance policies, so long as it
aided DFS's campaign against gun groups”).
1
Vullo and
Lloyd's struck a deal: Lloyd's “would instruct its syndicates
to cease underwriting frearm-related policies and would
scale back its NRA-related business,” and “in exchange,
DFS would focus its forthcoming affnity-insurance enforce-
ment action solely on those syndicates which served the
NRA, and ignore other syndicates writing similar policies.”
Ibid., ¶69.
On April 19, 2018, Vullo issued two virtually identical
guidance letters on DFS letterhead entitled, “Guidance on
Risk Management Relating to the NRA and Similar Gun
Promotion Organizations.” Id., at 246–251 (Guidance Let-
ters). Vullo sent one of the letters to insurance companies
1
According to the complaint, other affnity organizations offered similar
insurance policies, including the New York State Bar Association, the New
York City Bar, and the New York State Psychological Association, among
others. See App. to Pet. for Cert. 207–208, Complaint ¶36.
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ATIONAL RIFLE ASSOCIATION OF AMERICA v. VULLO
Opinion of the Court
and the other to fnancial services institutions. In the let-
ters,
Vullo pointed to the “social backlash” against the NRA
and other groups “that promote guns that lead to senseless
violence” following “several recent horrifc shootings, includ-
ing in Parkland, Florida.” Id., at 246, 249. Vullo then cited
recent instances of businesses severing their ties with the
NRA as examples of companies “fulflling their corporate so-
cial responsibility.” Id., at 247, 250.
In the Guidance Letters' fnal paragraph, Vullo “encour-
age[d]” DFS-regulated entities to: (1) “continue evaluating
and managing their risks, including reputational risks, that
may arise from their dealings with the NRA or similar gun
promotion organizations”; (2) “review any relationships they
have with the NRA or similar gun promotion organizations”;
and (3) “take prompt actions to manag[e] these risks and
promote public health and safety.” Id., at 248, 251.
2
The same day that DFS issued the Guidance Letters, Vullo
and Governor Cuomo issued a joint press release that echoed
many of the letters' statements. The press release included
a quote from Vullo “ `urg[ing] all insurance companies and
banks doing business in New York' ” to join those “ `that have
already discontinued their arrangements with the NRA.' ”
Id., at 244. The press release cited Chubb's decision to stop
underwriting Carry Guard as an example to emulate. The
next day, Cuomo tweeted: “ `The NRA is an extremist organi-
zation. I urge companies in New York State to revisit any
ties they have to the NRA and consider their reputations, and
responsibility to the public.' ” Id., at 213, Complaint ¶51.
2
The fnancial-regulatory term “reputational risk” is “ `the risk to cur-
rent or projected fnancial condition and resilience arising from negative
public opinion,' which `may impair a bank's competitiveness by affecting
its ability to establish new relationships or services or continue servicing
existing relationships.' ” Brief for United States as Amicus Curiae 27–
28, and n. 10 (quoting Offce of the Comptroller of the Currency, Comptrol-
ler's Handbook, Examination Process, Bank Supervision Process 28 (Sept.
2019)). DFS monitors the reputational risk of regulated institutions be-
cause of its potential effect on market stability. See Brief for Respondent 6.

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Opinion of the Court
Less than two weeks after the Guidance Letters and press
release
went out, DFS entered into consent decrees with
Lockton (on May 2), and Chubb (on May 7). The decrees
stipulated that Carry Guard violated New York insurance
law because it provided insurance coverage for intentional
criminal acts, and because the NRA promoted Carry Guard,
along with other NRA-endorsed programs, without an insur-
ance producer license. The decrees also listed other infrac-
tions of the State's insurance law. Both Lockton and Chubb
admitted liability, agreed not to provide any NRA-endorsed
insurance programs (even if lawful) but were permitted to
sell corporate insurance to the NRA, and agreed to pay
fnes of $7 million and $1.3 million respectively. On May 9,
Lloyd's offcially instructed its syndicates to terminate exist-
ing agreements with the NRA and not to insure new ones.
It publicly announced its decision to cut ties with the NRA
that same day. On December 20, 2018, DFS and Lloyd's en-
tered into their own consent decree, which imposed similar
terms and a $5 million fne.
B
The NRA sued Cuomo, Vullo, and DFS. The only claims
before the Court today are those against Vullo—namely,
claims that Vullo violated the First Amendment by coercing
DFS-regulated parties to punish or suppress “the NRA's
pro-Second Amendment v iewpoi nt” and “core pol itica l
speech.” Id., at 231, ¶91, 234, ¶101. The complaint asserts
both censorship and retaliation First Amendment claims,
which the parties and lower courts have analyzed together.
Vullo moved to dismiss, arguing that the alleged conduct did
not constitute impermissible coercion and that, in the alter-
native, she was entitled to qualifed immunity because she
did not violate clearly established law.
The District Court denied Vullo's motion to dismiss the
NRA's First-Amendment damages claims. The court held
that the NRA plausibly alleged that “the combination of
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ATIONAL RIFLE ASSOCIATION OF AMERICA v. VULLO
Opinion of the Court
[Vullo's and Cuomo's] actions . . . could be interpreted as a
vei
led threat to regulated industries to disassociate with the
NRA or risk DFS enforcement action.” NRA of Am. v.
Cuomo, 525 F. Supp. 3d 382, 402–403 (NDNY 2021). That
threat, the court said, crossed a First Amendment line. The
District Court concluded that Vullo was not entitled to quali-
fed immunity at the motion-to-dismiss stage.
The Second Circuit reversed. It concluded that Vullo's al-
leged actions constituted permissible government speech and
legitimate law enforcement, and not unconstitutional coer-
cion. The Second Circuit determined that the Guidance
Letters and accompanying press release were not unconsti-
tutionally coercive because they “were written in an even-
handed, nonthreatening tone and employed words intended
to persuade rather than intimidate.” 49 F. 4th, at 717. The
court found it signifcant that Vullo “did not refer to any
pending investigations or possible regulatory action” and al-
luded only to business-related risks “amid growing public
concern over gun violence.” Ibid. As for Vullo's meeting
with the Lloyd's executives, the court admitted that the alle-
gations presented a “closer call.” Id., at 718. Nonetheless,
just as with the consent decrees, it found that Vullo “was
merely carrying out her regulatory responsibilities.” Id., at
718–719. The Second Circuit also held that, even if the com-
plaint stated a First Amendment violation, the law was not
clearly established, and so Vullo was entitled to qualifed
immunity.
The NRA fled a petition for a writ of certiorari, seeking
either summary reversal or review of the First Amendment
and qualifed immunity holdings. This Court granted cer-
tiorari on only the frst question presented whether the com-
plaint states a First Amendment claim against Vullo. See
601 U. S. ––– (2023).
3
3
Vullo argues that the Court must dismiss the case as improvidently
granted because the Court deprived itself of jurisdiction by limiting its
review to the First Amendment question and declining to review the Sec-
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II
As
discussed below, Vullo was free to criticize the NRA
and pursue the conceded violations of New York insurance
law. She could not wield her power, however, to threaten
enforcement actions against DFS-regulated entities in order
to punish or suppress the NRA's gun-promotion advocacy.
Because the complaint plausibly alleges that Vullo did just
that, the Court holds that the NRA stated a First Amend-
ment violation.
A
At the heart of the First Amendment's Free Speech Clause
is the recognition that viewpoint discrimination is uniquely
harmful to a free and democratic society. The Clause pro-
hibits government entities and actors from “abridging the
freedom of speech.” When government offcials are “engag-
ing in their own expressive conduct,” though, “the Free
Speech Clause has no application.” Pleasant Grove City v.
Summum, 555 U. S. 460, 467 (2009). The government can
“ `say what it wishes' ” and “select the views that it wants to
express.” Id., at 467–468 (quoting Rosenberger v. Rector
and Visitors of Univ. of Va., 515 U. S. 819, 833 (1995)). That
makes sense; the government could barely function other-
wise. “When a government entity embarks on a course of
action, it necessarily takes a particular viewpoint and rejects
others,” and thus does not need to “maintain viewpoint-
neutrality when its offcers and employees speak about that
venture.” Matal v. Tam, 582 U. S. 218, 234 (2017).
ond Circuit's alternative holding that Vullo is entitled to qualifed immu-
nity. See Brief for Respondent 21–24. Not so. In this case, “[a]n order
limiting the grant of certiorari does not operate as a jurisdictional bar.”
Piper Aircraft Co. v. Reyno, 454 U. S. 235, 247, n. 12 (1981). Because the
Second Circuit is free to revisit the qualifed immunity question in light of
this Court's opinion, the NRA still could obtain “ `effectual relief ' ” on re-
mand. Chafn v. Chafn, 568 U. S. 165, 172 (2013). In such circumstances,
it cannot be said that the resolution of the First Amendment question is
merely advisory.
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A government offcial can share her views freely and criti-
ci
ze particular beliefs, and she can do so forcefully in the
hopes of persuading others to follow her lead. In doing so,
she can rely on the merits and force of her ideas, the strength
of her convictions, and her ability to inspire others. What
she cannot do, however, is use the power of the State to
punish or suppress disfavored expression. See Rosenberger,
515 U. S., at 830 (explaining that governmental actions seek-
ing to suppress a speaker's particular views are presump-
tively unconstitutional). In such cases, it is “the application
of state power which we are asked to scrutinize.” NAACP
v. Alabama ex rel. Patterson, 357 U. S. 449, 463 (1958).
In Bantam Books, this Court explored the distinction be-
tween permissible attempts to persuade and impermissible
attempts to coerce. There, a state commission used its
power to investigate and recommend criminal prosecution to
censor publications that, in its view, were “ `objectionable' ”
because they threatened “youthful morals.” 372 U. S., at
59–62, 71. The commission sent offcial notices to a distribu-
tor for blacklisted publications that highlighted the commis-
sion's “duty to recommend to the Attorney General” viola-
tions of the State's obscenity laws. Id., at 62–63, and n. 5.
The notices also informed the distributor that the lists of
blacklisted publications “were circulated to local police de-
partments,” and that the distributor's cooperation in remov-
ing the publications from the shelves would “ `eliminate the
necessity' ” of any referral for prosecution. Ibid. A local
police offcer also conducted followup visits to ensure compli-
ance. In response, the distributor took “steps to stop fur-
ther circulation of copies of the listed publications” out of
fear of facing “ `a court action.' ” Id., at 63.
The publishers of the blacklisted publications sued the
commission, alleging that this scheme of informal censorship
violated their First Amendment rights. The commission re-
sponded that “it d[id] not regulate or suppress obscenity but
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simply exhort[ed] booksellers and advise[d] them of their
lega
l rights.” Id., at 66. This Court sided with the publish-
ers, holding that the commission violated their free-speech
rights by coercing the distributor to stop selling and display-
ing the listed publications.
The Court explained that the First Amendment prohibits
government offcials from relying on the “threat of invoking
legal sanctions and other means of coercion . . . to achieve
the suppression” of disfavored speech. Id., at 67. Although
the commission lacked the “power to apply formal legal sanc-
tions,” the distributor “reasonably understood” the commis-
sion to threaten adverse action, and thus the distributor's
“compliance with the [c]ommission's directives was not vol-
untary.” Id., at 66–68. To reach this conclusion, the Court
considered things like: the commission's coordination with
law enforcement and its authority to refer matters for prose-
cution; the notices themselves, which were “phrased virtu-
ally as orders” containing “thinly veiled threats to institute
criminal proceedings” if the distributor did not come around;
and the distributor's reaction to the notices and followup vis-
its. Id., at 68.
Since Bantam Books, the Courts of Appeals have consid-
ered similar factors to determine whether a challenged com-
munication is reasonably understood to be a coercive threat.
Take the decision below, for example. The Second Circuit
purported to consider: “(1) word choice and tone; (2) the ex-
istence of regulatory authority; (3) whether the speech was
perceived as a threat; and, perhaps most importantly, (4)
whether the speech refers to adverse consequences.” 49 F.
4th, at 715 (citations omitted).
4
Other Circuits have taken
4
The NRA posits a three-factor test that looks to: (1) the actor's author-
ity; (2) the content and purpose of the actor's communications; and (3) the
reactions of the recipient. Brief for Petitioner 26. The NRA concedes,
however, that its test is the same as the Second Circuit's, as it considers
the fourth factor in the Second Circuit's test of “ `whether the speech re-
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similarly fact-intensive approaches, utilizing a multifactor
test
or a totality-of-the-circumstances analysis. See, e.g.,
Missouri v. Biden, 83 F. 4th 350, 380 (CA5 2023) (“[T]o help
distinguish permissible persuasion from impermissible coer-
cion, we turn to the Second (and Ninth) Circuit's four-factor
test”); Kennedy v. Warren, 66 F. 4th 1199, 1207 (CA9 2023)
(applying the Second Circuit's “useful non-exclusive four-
factor framework”); Backpage.com, LLC v. Dart, 807 F. 3d
229, 230–232 (CA7 2015) (considering the same factors as
part of a totality-of-the-circumstances analysis); R. C. Max-
well Co. v. New Hope, 735 F. 2d 85, 88 (CA3 1984) (same).
The Courts of Appeals that employ a multifactor test agree
that “[n]o one factor is dispositive.” 49 F. 4th, at 715; accord,
Kennedy, 66 F. 4th, at 1210 (explaining that the absence of
direct regulatory authority is not dispositive).
Ultimately, Bantam Books stands for the principle that a
government offcial cannot do indirectly what she is barred
from doing directly: A government offcial cannot coerce a
private party to punish or suppress disfavored speech on her
behalf. See, e.g., 372 U. S., at 67–69; see also Backpage.com,
807 F. 3d, at 231 (holding that the First Amendment barred
a sheriff from “using the power of his offce to threaten legal
sanctions against . . . credit-card companies for facilitating
future speech”); Okwedy v. Molinari, 333 F. 3d 339, 344
(CA2 2003) (per curiam) (holding that a religious group
stated a First Amendment claim against a borough president
who wrote a letter “contain[ing] an implicit threat of retalia-
tion” against a billboard company displaying the group's dis-
favored message); cf. Penthouse Int'l, Ltd. v. Meese, 939
F. 2d 1011, 1016 (CADC 1991) (“[W]hen the government
threatens no sanction—criminal or otherwise—we very
much doubt that the government's criticism or effort to em-
fers to adverse consequences' ” to be an “aspect of the inquiry into the
content and purpose of the communication.” Id., at 27, n. 8.
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barrass the [intermediary] threatens anyone's First Amend-
ment
rights”).
B
The parties and the Solicitor General, who fled an amicus
brief supporting vacatur, agree that Bantam Books provides
the right analytical framework for claims that the govern-
ment has coerced a third party to violate the First Amend-
ment rights of another. They also embrace the lower courts'
multifactor test as a useful, though nonexhaustive, guide.
Rightly so. Considerations like who said what and how, and
what reaction followed, are just helpful guideposts in an-
swering the question whether an offcial seeks to persuade
or, instead, to coerce. Where the parties differ is on the
application of the Bantam Books framework. The NRA and
the Solicitor General reject the Second Circuit's application
of the framework, while Vullo defends it. The Court now
agrees with the NRA and the Solicitor General.
To state a claim that the government violated the First
Amendment through coercion of a third party, a plaintiff
must plausibly allege conduct that, viewed in context, could
be reasonably understood to convey a threat of adverse gov-
ernment action in order to punish or suppress the plaintiff 's
speech. See 372 U. S., at 67–68. Accepting the well-
pleaded factual allegations in the complaint as true, the NRA
plausibly alleged that Vullo violated the First Amendment
by coercing DFS-regulated entities into disassociating with
the NRA in order to punish or suppress the NRA's gun-
promotion advocacy.
Consider frst Vullo's authority, which serves as a back-
drop to the NRA's allegations of coercion. The power that
a government offcial wields, while certainly not dispositive,
is relevant to the objective inquiry of whether a reasonable
person would perceive the offcial's communication as coer-
cive. See id., at 66–67. Generally speaking, the greater
and more direct the government offcial's authority, the less
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likely a person will feel free to disregard a directive from
the
offcial. For example, imagine a local affnity group in
New York that receives a strongly worded letter. One
would reasonably expect that organization to react differ-
ently if the letter came from, say, the U. S. Attorney for the
Southern District of New York than if it came from an out-
of-state school board.
As DFS superintendent, Vullo had direct regulatory and
enforcement authority over all insurance companies and
fnancial service institutions doing business in New York.
See N. Y. Fin. Servs. Law Ann. §§ 202, 301. Just like the
commission in Bantam Books, Vullo could initiate investiga-
tions and refer cases for prosecution. Indeed, she could do
much more than that. Vullo also had the power to notice
civil charges and, as this case shows, enter into consent de-
crees that impose signifcant monetary penalties.
Against this backdrop, consider Vullo's communications
with the DFS-regulated entities, particularly with Lloyd's.
According to the NRA, Vullo brought a variety of insurance-
law violations to the Lloyd's executives' attention during a
private meeting in February 2018. The violations included
technical infractions that allegedly plagued the affnity insur-
ance market in New York and that were unrelated to any
NRA business. App. to Pet. for Cert. 199–200, Complaint
¶21; accord, id., at 207–208, ¶¶36–37; id., at 223, ¶69. Vullo
allegedly said she would be “less interested in pursuing
the[se] infractions . . . so long as Lloyd's ceased providing
insurance to gun groups, especially the NRA.” Id., at 199–
200, ¶21. Vullo therefore wanted Lloyd's to disassociate from
all gun groups, although there was no indication that such
groups had unlawful insurance policies similar to the NRA's.
Vullo also told the Lloyd's executives she would “focus” her
enforcement actions “solely” on the syndicates with ties to
the NRA, “and ignore other syndicates writing similar poli-
cies.” Id., at 223, ¶69. The message was therefore loud
and clear: Lloyd's “could avoid liability for [unrelated] infrac-
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tions” if it “aided DFS's campaign against gun groups” by
ter
minating its business relationships with them. Ibid.
As alleged, Vullo's communications with Lloyd's can be
reasonably understood as a threat or as an inducement.
Either of those can be coercive. As Vullo concedes, the
“threat need not be explicit,” Brief for Respondent 47, and
as the Solicitor General explains, “[t]he Constitution does not
distinguish between `comply or I'll prosecute' and `comply
and I'll look the other way,' ” Brief for United States as Ami-
cus Curiae 18, n. 7. So, whether analyzed as a threat or as
an inducement, the conclusion is the same: Vullo allegedly
coerced Lloyd's by saying she would ignore unrelated infrac-
tions and focus her enforcement efforts on NRA-related busi-
ness alone, if Lloyd's ceased underwriting NRA policies and
disassociated from gun-promotion groups.
The reaction from Lloyd's further confrms the communi-
cations' coercive nature. Cf. Bantam Books, 372 U. S., at
63, 68 (noting that the distributor's “reaction on receipt of a
notice was to take steps to stop further circulation of copies
of the listed publications”). At the meeting itself, Lloyd's
“agreed that it would instruct its syndicates to cease under-
writing frearm-related policies and would scale back its
NRA-related business.” App. to Pet. for Cert. 223, Com-
plaint ¶69. Minutes from a subsequent board of directors'
meeting reveal that Lloyd's thought “the DFS investigation
had transformed the gun issue into `a regulatory, legal[,] and
compliance matter.' ” 2 App. to Pet. for Cert. 29 (Sealed).
That reaction is consistent with Lloyd's public announcement
that it had directed its syndicates to “terminate all insurance
related to the NRA and not to provide any insurance to the
NRA in the future.” App. to Pet. for Cert. 224, Complaint
¶72; accord, id., at 306, ¶20 (consent decree memorializing
commitment not to underwrite, or participate in, NRA-
endorsed programs).
Other allegations, viewed in context, reinforce the NRA's
First Amendment claim. Consider the April 2018 Guidance
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Letters and accompanying press release, which Vullo issued
on
offcial letterhead. Cf. Bantam Books, 372 U. S., at 61–
63, and n. 5 (discussing notice issued in “offcial Commission
stationery”). Just like in her meeting with the Lloyd's exec-
utives, here too Vullo singled out the NRA and other gun-
promotion organizations as the targets of her call to action.
This time, the Guidance Letters reminded DFS-regulated
entities of their obligation to consider their “reputational
risks,” and then tied that obligation to an encouragement for
“prompt actio[n] to manag[e] these risks.” App. to Pet. for
Cert. 248, 251. Evocative of Vullo's private conversation
with the Lloyd's executives a few weeks earlier, the press
release revealed how to manage the risks by encouraging
DFS-regulated entities to “ `discontinu[e] their arrangements
with the NRA,' ” just like Chubb did when it stopped under-
writing Carry Guard. Id., at 244. A follow-on tweet from
Cuomo reaffrmed the message: Businesses in New York
should “ `consider their reputations' ” and “ `revisit any ties
they have to the NRA,' ” which he called “ `an extremist or-
ganization.' ” Id., at 213, ¶51.
In sum, the complaint, assessed as a whole, plausibly
alleges that Vullo threatened to wield her power against
those refusing to aid her campaign to punish the NRA's
gun-promotion advocacy. If true, that violates the First
Amendment.
C
In holding otherwise, the Second Circuit found that: (1)
the “Guidance Letters and Press Release are clear examples
of permissible government speech”; and (2) the Lloyd's meet-
ing was “legitimate enforcement action” in which Vullo was
“merely carrying out her regulatory responsibilities” by of-
fering “leniency in the course of negotiating a resolution of
the apparent insurance law violations.” 49 F. 4th, at 717–
719. The Second Circuit could only reach this conclusion by
taking the allegations in isolation and failing to draw reason-
able inferences in the NRA's favor in violation of this Court's

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precedents. Cf. Iqbal, 556 U. S., at 678–679; Bell Atlantic
C
orp. v. Twombly, 550 U. S. 544, 570 (2007).
For example, the Second Circuit failed to analyze the Guid-
ance Letters and press release against the backdrop of other
allegations in the complaint, including the Lloyd's meeting.
Moreover, as discussed above, the complaint alleges that
Vullo made a not-so-subtle, sanctions-backed threat to
Lloyd's to cut all business ties with the NRA and other gun-
promotion groups, although there was no sign that other gun
groups also had unlawful insurance policies. See supra, at
192. It is also relevant that Vullo made this alleged threat
in a meeting where she presented her “desire to leverage
[her] powers to combat the availability of frearms, including
specifcally by weakening the NRA.” App. to Pet. for Cert.
221, Complaint ¶67; id., at 223, ¶69 (alleging Vullo hoped
to enlist DFS-regulated entities in “aid[ing] DFS's campaign
against gun groups”). Given the obligation to draw reason-
able inferences in the NRA's favor and consider the allega-
tions as a whole, the Second Circuit erred in reading the
complaint as involving only individual instances of “permissi-
ble government speech” and the execution of Vullo's “regula-
tory responsibilities.” 49 F. 4th, at 717–719.
For the same reasons, this Court cannot simply credit Vul-
lo's assertion that “pursuing conceded violations of the law,”
Brief for Respondent 29, is an “ `obvious alternative explana-
tion' ” for her actions that defeats the plausibility of any coer-
cive threat raising First Amendment concerns, id., at 37, 40,
42 (quoting Iqbal, 556 U. S., at 682). Of course, discovery in
this case might show that the allegations of coercion are
false, or that certain actions should be understood differently
in light of newly disclosed evidence. At this stage, though,
the Court must assume the well-pleaded factual allegations
in the complaint are true.
5
5
Vullo also argues that she is entitled to absolute prosecutorial immu-
nity for her enforcement actions. See Brief for Respondent 25–28. Put-
ting aside whether a fnancial regulator like Vullo is entitled to such immu-

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Moreover, the conceded illegality of the NRA-endorsed
i
nsurance programs does not insulate Vullo from First
Amendment scrutiny under the Bantam Books framework.
Indeed, the commission in that case targeted the distribution
and display of material that, in its view, violated the State's
obscenity laws. Nothing in that case turned on the distribu-
tor's compliance with state law. On the contrary, Bantam
Books held that the commission violated the First Amend-
ment by invoking legal sanctions to suppress disfavored pub-
lications, some of which may or may not contain protected
speech (i.e., nonobscene material). See 372 U. S., at 64, 67.
Here, too, although Vullo can pursue violations of state in-
surance law, she cannot do so in order to punish or suppress
the NRA's protected expression. So, the contention that the
NRA and the insurers violated New York law does not ex-
cuse Vullo from allegedly employing coercive threats to stife
gun-promotion advocacy.
Vullo next argues that this case does not involve unconsti-
tutional coercion because her challenged actions in fact tar-
geted business practices and relationships, which qualify as
“nonexpressive activity.” Brief for Respondent 32. The
argument is misplaced. That Vullo “regulate[d]” business
activities stemming from the NRA's “relationships with in-
surers and banks,” ibid., does not change the allegations that
her actions were aimed at punishing or suppressing speech.
In Bantam Books, the commission interfered with the busi-
ness relationship between the distributor and the publishers
in order to suppress the publishers' disfavored speech. 372
U. S., at 66–71. Similarly, in Backpage.com, a sheriff inter-
fered with a website's business relationships with payments-
service providers in order to eliminate the website's “adult
nity in the administrative context, because Vullo did not raise this defense
below with respect to the First Amendment claim (or even with respect
to allegations unrelated to the consent decrees), the Court declines to con-
sider that argument here in the frst instance.

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section” (if not the website itself ). 807 F. 3d, at 230–232,
235
–236. In that case, the sheriff wanted to “suffocat[e]”
the website, “depriving the company of ad revenues by scar-
ing off its payments-service providers.” Id., at 231. “The
analogy,” the Seventh Circuit explained, “is to killing a per-
son by cutting off his oxygen supply rather than by shooting
him.” Ibid. So too here. One can reasonably infer from
the complaint that Vullo coerced DFS-regulated entities to
cut their ties with the NRA in order to stife the NRA's gun-
promotion advocacy and advance her views on gun control.
See, e.g., supra, at 191–194; App. to Pet. for Cert. 221, 230–
235, Complaint ¶¶67, 87–105. Vullo knew, after all, that the
NRA relied on insurance and fnancing “to disseminate its
message.” Id., at 231, ¶92; see id., at 203–204, ¶¶28–29.
6
Lastly, Vullo falls back on the argument that a ruling in
the NRA's favor would interfere with the government's abil-
ity to function properly. She claims that the NRA's position,
if accepted, would stife government speech and hamper le-
gitimate enforcement efforts. This argument falls fat for
the simple reason that it requires the Court to accept Vullo's
limited reading of the complaint. The Court does not break
new ground in deciding this case. It only reaffrms the gen-
eral principle from Bantam Books that where, as here, the
complaint plausibly alleges coercive threats aimed at punish-
ing or suppressing disfavored speech, the plaintiff states a
First Amendment claim.
III
The NRA's allegations, if true, highlight the constitutional
concerns with the kind of intermediary strategy that Vullo
purportedly adopted to target the NRA's advocacy. Such a
strategy allows government offcials to “expand their regula-
6
Vullo's boss, Governor Cuomo, also urged businesses to disassociate
with the NRA to put the organization “into fnancial jeopardy” and “shut
them down.” App. 21 (Aug. 3, 2018, tweet).
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tory jurisdiction to suppress the speech of organizations that
they
have no direct control over.” Brief for First Amend-
ment Scholars as Amici Curiae Supporting Petitioner 8. It
also allows government offcials to be more effective in their
speech-suppression efforts “[b]ecause intermediaries will
often be less invested in the speaker's message and thus less
likely to risk the regulator's ire.” Ibid. The allegations
here bear this out. Although “the NRA was not even the
directly regulated party,” Brief for Respondent 32, Vullo al-
legedly used the power of her offce to target gun promotion
by going after the NRA's business partners. Insurers in
turn followed Vullo's lead, fearing regulatory hostility.
Nothing in this case gives advocacy groups like the NRA
a “right to absolute immunity from [government] investiga-
tion,” or a “right to disregard [state or federal] laws.” Pat-
terson, 357 U. S., at 463. Similarly, nothing here prevents
government offcials from forcefully condemning views with
which they disagree. For those permissible actions, the
Constitution “relies frst and foremost on the ballot box, not
on rules against viewpoint discrimination, to check the gov-
ernment when it speaks.” Shurtleff v. Boston, 596 U. S. 243,
252 (2022). Yet where, as here, a government offcial makes
coercive threats in a private meeting behind closed doors,
the “ballot box” is an especially poor check on that offcial's
authority. Ultimately, the critical takeaway is that the First
Amendment prohibits government offcials from wielding
their power selectively to punish or suppress speech, directly
or (as alleged here) through private intermediaries.
***
For the reasons discussed above, the Court holds that the
NRA plausibly alleged that Vullo violated the First Amend-
ment by coercing DFS-regulated entities to terminate their
business relationships with the NRA in order to punish or
suppress the NRA's advocacy.

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199
Jackson, J., concurring
The judgment of the U. S. Court of Appeals for the Second
Circuit
is vacated, and the case is remanded for further pro-
ceedings consistent with this opinion.
7
It is so ordered.
Justice Gorsuch, concurring.
I write separately to explain my understanding of the
Court's opinion, which I join in full. Today we reaffrm a
well-settled principle: “A government offcial cannot coerce
a private party to punish or suppress disfavored speech on
her behalf.” Ante, at 190. As the Court mentions, many
lower courts have taken to analyzing this kind of coercion
clai m under a four-pronged “mu lti fac tor test. ” Ib i d.
These tests, the Court explains, might serve “as a useful,
though nonexhaustive, guide.” Ante, at 191. But some-
times they might not. Cf. Axon Enterprise, Inc. v. FTC,
598 U. S. 175, 205–207 (2023) (Gorsuch, J., concurring in
judgment). Indeed, the Second Circuit's decision to break
up its analysis into discrete parts and “tak[e] the [com-
plaint's] allegations in isolation” appears only to have con-
tributed to its mistaken conclusion that the National Rife As-
sociation failed to state a claim. Ante, at 194. Lower courts
would therefore do well to heed this Court's directive: What-
ever value these “guideposts” serve, they remain “just” that
and nothing more. Ante, at 191. “Ultimately, the critical”
question is whether the plaintiff has “plausibly allege[d] con-
duct that, viewed in context, could be reasonably understood
to convey a threat of adverse government action in order to
punish or suppress the plaintiff 's speech.” Ante, at 191, 198.
Justice Jackson, concurring.
Applying our decision in Bantam Books, Inc. v. Sullivan,
372 U. S. 58 (1963), the Court today explains that a “govern-
7
On remand, the Second Circuit is free to reconsider whether Vullo is
entitled to qualifed immunity.
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Jackson, J., concurring
ment offcial cannot coerce a private party to punish or sup-
press
disfavored speech on her behalf.” Ante, at 190. I
agree. I write separately to stress the important distinction
between government coercion, on the one hand, and a viola-
tion of the First Amendment, on the other.
I
Coercion of a third party can be the means by which the
government violates the First Amendment rights of another.
But the fact of coercion, without more, does not state a First
Amendment claim. Rather, in addition to fnding that the
government has crossed a line from persuasion to coercion,
courts must assess how that coercion actually violates a
speaker's First Amendment rights.
Our decision in Bantam Books provides one example of
how government coercion of a third party can indirectly
bring about a First Amendment violation. As the majority
explains, ante, at 188–189, Bantam Books held that a Rhode
Island commission's efforts to coerce intermediary book dis-
tributors into pulling certain publications from circulation
violated the First Amendment rights of the books' publish-
ers, 372 U. S., at 61–62, 66–67. Even though the state com-
mission had not itself “seized or banned” any books, “the
threat of invoking legal sanctions and other means of coer-
cion, persuasion, and intimidation” against the distributors
“directly and designedly stopped the circulation of publica-
tions in many parts of Rhode Island.” Id., at 67–68.
Essentia l ly, the St ate's threats to th ird par ties—the
distributors—erected through private hands an “effective
state regulation . . . of obscenity.” Id., at 69. And the gov-
ernment could not escape responsibility for the distributors'
actions merely because the commission did not itself seize
any books. See id., at 66–67.
Not ably, however, the gover nment's coerci on of the
distributors into doing its bidding was not—in and of
itself—what offended the First Amendment. Rather, by
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as: 602 U. S. 175 (2024)
201
Jackson, J., concurring
threatening those third-party conduits of speech, the state
commissi
on had effectively “subject[ed] the distribution of
publications to a system of prior administrative restraints”
lacking the requisite constitutional safeguards. Id., at 70.
Put another way, by exerting pressure on a third party, the
State had constructed a “system of informal censorship.”
Id., at 71.
The lesson of Bantam Books is that “a government offcial
cannot do indirectly what she is barred from doing directly.”
Ante, at 190. That case does not hold that government coer-
cion alone violates the First Amendment. And recognizing
the distinction between government coercion and a First
Amendment violation is important because our democracy
can function only if the government can effectively enforce
the rules embodied in legislation; by its nature, such enforce-
ment often involves coercion in the form of legal sanctions.
The existence of an allegation of government coercion of a
third party thus merely invites, rather than answers, the
question whether that coercion indirectly worked a violation
of the plaintiff's First Amendment rights.
II
Whether and how government coercion of a third party
might violate another party's First Amendment rights will
depend on the facts of the case. Indeed, under our prece-
dents, determining whether government action violates the
First Amendment requires application of different doctrines
that vary dependi ng on the circumst ances. D i fferent
circumstances—who is being coerced to do what, and why—
may implicate different First Amendment inquiries.
In Bantam Books and many cases applying it, the coercion
and First Amendment inquiries practically merge. This is
because those cases tend to follow a similar fact pattern: The
plaintiff claims that the government coerced a distributor,
purveyor, or conduit of expression—like a billboard company,
television station, or book retailer—to shut down the speech
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202 N
ATIONAL RIFLE ASSOCIATION OF AMERICA v. VULLO
Jackson, J., concurring
of another party that relies on that distributor, purveyor, or
conduit
to spread its message.* Coercing an entity in the
business of disseminating speech to stop disseminating some-
one else's speech obviously implicates the First Amendment,
insofar as it may result in censorship similar to the prior
restraint identifed in Bantam Books.
But, in my view, that censorship theory is an awkward ft
with the facts of this case. According to the complaint,
Vullo coerced various regulated entities to cut business ties
with the National Rife Association (NRA). See ante, at
183–184. The NRA does not contend that its (concededly
unlawful) insurance products offered through those business
relationships were themselves “speech,” akin to a billboard,
a television ad, or a book. Nor does the complaint allege
that Vullo pressured the printer of American Rifeman (a
longstanding NRA periodical) to stop printing the magazine,
or coerced a convention center into canceling the NRA's an-
nual meeting. See VDARE Foundation v. Colorado
Springs, 11 F. 4th 1151, 1157 (CA10 2021). In other words,
the effect of Vullo's alleged coercion of regulated entities on
the NRA's speech is signifcantly more attenuated here than
in Bantam Books or most decisions applying it. It is, for
instance, far from obvious that Vullo's conduct toward regu-
lated entities established “a system of prior administrative
restraints” against the NRA's expression. Bantam Books,
372 U. S., at 70.
*See, e.g., Okwedy v. Molinari, 333 F. 3d 339, 340, 342–344 (CA2 2003)
(per curiam) (billboard company); R. C. Maxwell Co. v. New Hope, 735
F. 2d 85, 85–88 (CA3 1984) (same); American Family Assn., Inc. v. City
and County of San Francisco, 277 F. 3d 1114, 1119–1120 (CA9 2002) (tele-
vision stations); Kennedy v. Warren, 66 F. 4th 1199, 1204–1205 (CA9 2023)
(online book retailer); Penthouse Int'l, Ltd. v. Meese, 939 F. 2d 1011, 1013–
1016 (CADC 1991) (convenience stores carrying pornographic magazines);
Hammerhead Enterprises, Inc. v. Brezenoff, 707 F. 2d 33, 34–38 (CA2
1983) (department stores carrying satirical board game); VDARE Founda-
tion v. Colorado Springs, 11 F. 4th 1151, 1156–1157 (CA10 2021) (resort
hosting advocacy group conference).
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Cite
as: 602 U. S. 175 (2024)
203
Jackson, J., concurring
Of course, as the majority correctly observes, none of that
means
that Vullo may target with impunity the NRA's “ `non-
expressive' ” activity if she is doing so to punish the NRA
for its expression. See ante, at 196. But it does suggest
that our First Amendment retaliation cases might provide a
better framework for analyzing these kinds of allegations—
i.e., coercion claims that are not directly related to the publi-
cation or distribution of speech. And, fortunately for the
NRA, the complaint in this case alleges both censorship
and retaliation theories for how Vullo violated the First
Amendment—theories that, in my opinion, deserve sepa-
rate analyses.
“ `[A]s a general matter,' the First Amendment prohibits
government offcials from subjecting individuals to `retalia-
tory actions' after the fact for having engaged in protected
speech.” Houston Community College System v. Wilson,
595 U. S. 468, 474 (2022) (quoting Nieves v. Bartlett, 587 U. S.
391, 398 (2019)). “[A] plaintiff pursuing a First Amendment
retaliation claim must show, among other things, that the
government took an `adverse action' in response to his
speech that `would not have been taken absent the retalia-
tory motive.' ” Wilson, 595 U. S., at 477 (quoting Nieves,
587 U. S., at 399). Although our analysis has varied by con-
text, see Lozman v. Riviera Beach, 585 U. S. 87, 96–99
(2018), we have generally required plaintiffs claiming First
Amendment retaliation to “establish a `causal connection' be-
tween the government defendant's `retaliatory animus' and
the plaintiff 's `subsequent injury,' ” Nieves, 587 U. S., at 398
(quoting Hartman v. Moore, 547 U. S. 250, 259 (2006)).
Requiring that causal connection to a retaliatory motive is
important, because “[s]ome offcial actions adverse to . . . a
speaker might well be unexceptionable if taken on other
grounds.” Id., at 256. In this case, for example, analyzing
causation matters because much of Vullo's alleged conduct,
if not done for retaliatory reasons, might otherwise be legiti-
mate enforcement of New York's insurance regulations.

204 N
ATIONAL RIFLE ASSOCIATION OF AMERICA v. VULLO
Jackson, J., concurring
How a retaliation analysis should proceed in this case was
not
addressed below, so the Court rightly leaves that ques-
tion unanswered today. But, importantly, any such analysis
requires more than asking simply whether the government's
actions crossed the threshold from permissible persuasion to
impermissible coercion. The NRA concedes that, at the
very least, our burden-shifting framework from Mt. Healthy
City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977), likely applies.
See Reply Brief 16–17. Should that test govern, the NRA
would have to plausibly allege that a retaliatory motive was
a “ `substantial' ” or “ `motivating factor' ” in Vullo's targeting
of the regulated entities doing business with the NRA. Mt.
Healthy, 429 U. S., at 287. Vullo, in turn, could rebut that
allegation by showing that she would have taken the same
action “even in the absence of the [NRA's] protected con-
duct.” Ibid.; see Lozman, 585 U. S., at 96 (“[E]ven if retali-
ation might have been a substantial motive for the board's
action, still there was no liability unless the alleged constitu-
tional violation was a but-for cause of the employment
termination”).
***
The NRA's complaint advances both censorship and retali-
ation claims, yet the lower courts in this case lumped these
claims together and ultimately focused almost exclusively on
whether Vullo's conduct was coercive. See ante, at 185–186.
Consequently, the strength of the NRA's claim under the Mt.
Healthy framework has received little attention thus far.
On remand, the parties and lower courts should consider the
censorship and retaliation theories independently, mindful of
the distinction between government coercion and the ways
in which such coercion might (or might not) have violated
the NRA's constitutional rights. That analysis can and
should likewise consider which First Amendment framework
best captures the NRA's allegations in this case. See, e.g.,
VDARE, 11 F. 4th, at 1159–1175 (separately analyzing cen-
sorship and retaliation claims).
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
None