NATIONAL RIFLE ASSOCIATION OF AMERICA v. VULLO
No. 22-842
SUPREME COURT OF THE UNITED STATES
May 30, 2024
Argued March 18, 2024
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
NATIONAL RIFLE ASSOCIATION OF AMERICA v. VULLO
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 Maria 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 financial 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—affiliates of Lockton Companies, LLC (Lockton)—to administer insurance policies the NRA offered as a benefit 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 affinity insurance policies—Carry Guard—on a tip passed along from a gun-control advocacy 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 affinity insurance programs.
On February 27, 2018, Vullo met with senior executives at Lloyd‘s,
On April 19, 2018, Vullo issued letters entitled, “Guidance on Risk Management Relating to the NRA and Similar Gun Promotion Organizations.” 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 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. 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 already 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 insurance programs (even if lawful), and agreed to pay multimillion dollar fines.
Held: The NRA plausibly alleged that respondent violated the First Amendment by coercing regulated entities to terminate their business relationships with the NRA in order to punish or suppress gun-promotion advocacy. Pp. 8-20.
(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 officials 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 officers and employees speak about that venture.” Matal v. Tam, 582 U.S. 218, 234. While a government official can share her views freely and criticize particular beliefs in the hopes of persuading others, she may not use the power of her office to punish or suppress disfavored expression.
In Bantam Books, Inc. v. Sullivan, 372 U.S. 58, this Court explored
(b) 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 government action in order to punish or suppress 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 financial service institutions doing business in New York. She could initiate investigations, refer cases for prosecution, notice civil charges, and enter into consent decrees. Vullo‘s communications with the DFS-regulated entities, particularly 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 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 policies.” App. to Pet. for Cert. 223, ¶ 69. The message was loud and clear: Lloyd‘s “could avoid liability for [unrelated] infractions” if it “aided DFS‘s campaign against gun groups” by terminating its business relationships with them. Ibid. As the reaction from Lloyd‘s further confirms, Vullo‘s alleged communications—whether seen as a threat or as an inducement—were reasonably understood as coercive. Other allegations concerning the Guidance
(c) The Second Circuit concluded that Vullo‘s alleged communications were “examples of permissible government speech” and “legitimate law enforcement action.” 49 F.4th 700, 717-719. The Second Circuit could only reach this conclusion, however, by taking the complaint‘s allegations 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 argument that her actions targeted “nonexpressive” business relationships change the fact that the NRA alleges her actions were aimed at punishing or suppressing speech. Finally, Vullo claims that the NRA‘s position, if accepted, would stifle government speech and hamper legitimate enforcement efforts, but the Court‘s conclusion simply reaffirms the general principle that where, as here, the complaint plausibly alleges coercive threats aimed at punishing or suppressing disfavored speech, the plaintiff states a First Amendment claim. Pp. 15-18.
(d) The NRA‘s allegations, if true, highlight the constitutional concerns with the kind of strategy that Vullo purportedly adopted. Although the NRA was not the directly regulated party here, Vullo allegedly used the power of her office to target gun promotion by going after the NRA‘s business partners. Nothing in this case immunizes the NRA from regulation nor prevents government officials from condemning disfavored views. The takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries. P. 19.
49 F.4th 700, vacated and remanded.
SOTOMAYOR, J., delivered the opinion for a unanimous Court. GORSUCH, J., and JACKSON, J., each filed a concurring opinion.
NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
No. 22-842
NATIONAL RIFLE ASSOCIATION OF AMERICA, PETITIONER v. MARIA T. VULLO
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[May 30, 2024]
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 coercion” 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 reaffirms what it said then: Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors. Petitioner National Rifle Association (NRA) plausibly alleges that respondent Maria Vullo did just that. As superintendent of the New York Department of Financial Services, Vullo allegedly pressured regulated entities to help her stifle the NRA‘s pro-gun advocacy by threatening enforcement actions against those entities that refused to disassociate from the NRA and other gun-promotion advocacy groups. Those allegations, 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
The New York Department of Financial Services (DFS) oversees insurance companies and financial services institutions doing business in the State. See
Since 2000, the NRA has offered a variety of insurance programs as a benefit to its members. The NRA contracted with affiliates of Lockton Companies, LLC (Lockton), to administer the various policies of these affinity insurance programs, which Chubb Limited (Chubb) and Lloyd‘s of London (Lloyd‘s) would then underwrite. In return, the NRA received a percentage of its members’ premium payments. One of the NRA‘s affinity products, Carry Guard, covered personal-injury and criminal-defense costs related to licensed firearm use, and “insured New York residents for intentional, reckless, and criminally negligent acts with a firearm that injured or killed another person.” 49 F.4th 700, 707 (CA2 2022).
In September 2017, a gun-control advocacy group contacted the New York County District Attorney‘s office to tip them off to “compliance infirmities in Carry Guard.” App. to Pet. for Cert. 206, Second Amended Complaint ¶ 34. That office then passed on the allegations to DFS. The next month, then-Superintendent of DFS Vullo began investigating Carry Guard, focusing on Chubb and Lockton. The investigation 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
In the midst of the investigation, tragedy struck Parkland, Florida. On February 14, 2018, a gunman opened fire at Marjory Stoneman Douglas High School, murdering 17 students and staff members. Following the shooting, the NRA and other gun-advocacy groups experienced “intense backlash” 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 organization. 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 298, Complaint ¶ 42. Lockton publicly announced its decision the next day. Following Lockton‘s decision, the NRA‘s corporate insurance carrier also severed ties with the organization and refused to renew coverage at any price. The NRA contends that Lockton and the corporate insurance carrier took these steps not because of the Parkland shooting 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 executives 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
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 Letters). Vullo sent one of the letters to insurance companies and the other to financial services institutions. In the letters, Vullo pointed to the “social backlash” against the NRA and other groups “that promote guns that lead to senseless violence” following “several recent horrific shootings, including in Parkland, Florida.” Id., at 246, 249. Vullo then cited recent instances of businesses severing their ties with the NRA as examples of companies “fulfilling their corporate social responsibility.” Id., at 247, 250.
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 organization. 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.
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 insur-
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 viewpoint” and “core political 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 alternative, she was entitled to qualified 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 [Vullo‘s and Cuomo‘s] actions . . . could be interpreted as a veiled 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
The Second Circuit reversed. It concluded that Vullo‘s alleged actions constituted permissible government speech and legitimate law enforcement, and not unconstitutional coercion. The Second Circuit determined that the Guidance Letters and accompanying press release were not unconstitutionally coercive because they “were written in an evenhanded, nonthreatening tone and employed words intended to persuade rather than intimidate.” 49 F.4th, at 717. The court found it significant that Vullo “did not refer to any pending investigations or possible regulatory action” and alluded 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 allegations 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 complaint stated a First Amendment violation, the law was not clearly established, and so Vullo was entitled to qualified immunity.
The NRA filed a petition for a writ of certiorari, seeking either summary reversal or review of the First Amendment and qualified immunity holdings. This Court granted certiorari on only the first question presented—whether the complaint states a First Amendment claim against Vullo. See 601 U.S. ___ (2023).3
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 Amendment 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 prohibits government entities and actors from “abridging the freedom of speech.” When government officials 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 (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 otherwise. “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 officers and employees speak about that venture.” Matal v. Tam, 582 U.S. 218, 234 (2017).
A government official can share her views freely and criticize particular beliefs, and she can do so forcefully in the
In Bantam Books, this Court explored the distinction between 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 official notices to a distributor for blacklisted publications that highlighted the commission‘s “duty to recommend to the Attorney General” violations 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 departments,” and that the distributor‘s cooperation in removing the publications from the shelves would “eliminate the necessity” of any referral for prosecution. Ibid. A local police officer also conducted followup visits to ensure compliance. In response, the distributor took “steps to stop further 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 responded that “it d[id] not regulate or suppress obscenity but simply exhort[ed] booksellers and advise[d] them of their legal rights.” Id., at 66. This Court sided with
The Court explained that the First Amendment prohibits government officials 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 sanctions,” the distributor “reasonably understood” the commission to threaten adverse action, and thus the distributor‘s “compliance with the [c]ommission‘s directives was not voluntary.” 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 prosecution; the notices themselves, which were “phrased virtually 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 visits. Id., at 68.
Since Bantam Books, the Courts of Appeals have considered similar factors to determine whether a challenged communication 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 existence 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 similarly fact-intensive approaches,
Ultimately, Bantam Books stands for the principle that a government official cannot do indirectly what she is barred from doing directly: A government official 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 office 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 retaliation” against a billboard company displaying the group‘s disfavored 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 embarrass the [intermediary] threatens anyone‘s First Amendment rights“).
The parties and the Solicitor General, who filed an amicus brief supporting vacatur, agree that Bantam Books provides the right analytical framework for claims that the government has coerced a third party to violate the First Amendment 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 answering the question whether an official 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 government 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 first Vullo‘s authority, which serves as a backdrop to the NRA‘s allegations of coercion. The power that a government official wields, while certainly not dispositive, is relevant to the objective inquiry of whether a reasonable person would perceive the official‘s communication as coercive. See id., at 66–67. Generally speaking, the greater and more direct the government official‘s authority, the less likely a person will feel free to disregard a directive from the official. For example, imagine a local affinity group in New York that receives a strongly worded letter. One
As DFS superintendent, Vullo had direct regulatory and enforcement authority over all insurance companies and financial service institutions doing business in New York. See
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 affinity insurance 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 policies.” Id., at 223, ¶ 69. The message was therefore loud and clear: Lloyd‘s “could avoid liability for [unrelated] infractions” if it “aided DFS‘s campaign against gun groups” by terminating its business relationships with them. Ibid.
The reaction from Lloyd‘s further confirms the communications’ 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 underwriting firearm-related policies and would scale back its NRA-related business.” App. to Pet. for Cert. 223, Complaint ¶ 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 Letters and accompanying press release, which Vullo issued on official letterhead. Cf. Bantam Books, 372 U.S., at
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 meeting was “legitimate enforcement action” in which Vullo was “merely carrying out her regulatory responsibilities” by offering “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 reasonable inferences in the NRA‘s favor in violation
For example, the Second Circuit failed to analyze the Guidance 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 13. 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 firearms, including specifically 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 reasonable inferences in the NRA‘s favor and consider the allegations as a whole, the Second Circuit erred in reading the complaint as involving only individual instances of “permissible government speech” and the execution of Vullo‘s “regulatory responsibilities.” 49 F.4th, at 717-719.
For the same reasons, this Court cannot simply credit Vullo‘s assertion that “pursuing conceded violations of the law,” Brief for Respondent 29, is an “obvious alternative explanation” for her actions that defeats the plausibility of any coercive 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
Moreover, the conceded illegality of the NRA-endorsed insurance programs does not insulate Vullo from
Vullo next argues that this case does not involve unconstitutional coercion because her challenged actions in fact targeted 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 insurers 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 business relationship between the distributor and
Lastly, Vullo falls back on the argument that a ruling in the NRA‘s favor would interfere with the government‘s ability to function properly. She claims that the NRA‘s position, if accepted, would stifle government speech and hamper legitimate enforcement efforts. This argument falls flat 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 reaffirms the general principle from Bantam Books that where, as here, the complaint plausibly alleges coercive threats aimed at punishing or suppressing disfavored speech, the plaintiff states a
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 officials to “expand their regulatory jurisdiction to suppress the speech of organizations that they have no direct control over.” Brief for First Amendment Scholars as Amici Curiae Supporting Petitioner 8. It also allows government officials 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 allegedly used the power of her office 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] investigation,” or a “right to disregard [state or federal] laws.” Patterson, 357 U.S., at 463. Similarly, nothing here prevents government officials from forcefully condemning views with which they disagree. For those permissible actions, the
*
*
For the reasons discussed above, the Court holds that the NRA plausibly alleged that Vullo violated the
The judgment of the U. S. Court of Appeals for the Second Circuit is vacated, and the case remanded for further proceedings consistent with this opinion.7
It is so ordered.
I write separately to explain my understanding of the Court‘s opinion, which I join in full. Today we reaffirm a well-settled principle: “A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf.” Ante, at 11. As the Court mentions, many lower courts have taken to analyzing this kind of coercion claim under a four-pronged “multifactor test.” Ibid. These tests, the Court explains, might serve “as a useful, though nonexhaustive, guide.” Ante, at 12. But sometimes 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 [complaint‘s] allegations in isolation” appears only to have contributed to its mistaken conclusion that the National Rifle Association failed to state a claim. Ante, at 15. Lower courts would therefore do well to heed this Court‘s directive: Whatever value these “guideposts” serve, they remain “just” that and nothing more. Ante, at 12. “Ultimately, the critical” question is whether the plaintiff has “plausibly allege[d] conduct 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 12, 19.
Applying our decision in Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), the Court today explains that a “government official cannot coerce a private party to punish or suppress disfavored speech on her behalf.” Ante, at 11. I agree. I write separately to stress the important distinction between government coercion, on the one hand, and a violation of the
I
Coercion of a third party can be the means by which the government violates the
Our decision in Bantam Books provides one example of how government coercion of a third party can indirectly bring about a
Notably, however, the government‘s coercion of the distributors into doing its bidding was not—in and of itself—what offended the
The lesson of Bantam Books is that “a government official cannot do indirectly what she is barred from doing directly.” Ante, at 11. That case does not hold that government coercion alone violates the
Whether and how government coercion of a third party might violate another party‘s
In Bantam Books and many cases applying it, the coercion and
But, in my view, that censorship theory is an awkward fit with the facts of this case. According to the complaint, Vullo coerced various regulated entities to cut business ties with the National Rifle Association (NRA). See ante, at 3-5. The
Of course, as the majority correctly observes, none of that means that Vullo may target with impunity the NRA‘s “nonexpressive” activity if she is doing so to punish the NRA for its expression. See ante, at 17. But it does suggest that our
“‘[A]s a general matter,’ the
Requiring that causal connection to a retaliatory motive is important, because “[s]ome official 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 legitimate enforcement of New York‘s insurance regulations.
How a retaliation analysis should proceed in this case was not addressed below, so the Court rightly leaves that question 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 conduct.” Ibid.; see Lozman, 585 U.S., at 96 (“[E]ven if retaliation might have been a substantial motive for the board‘s action, still there was no liability unless the alleged constitutional violation was a but-for cause of the employment termination“).
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The NRA‘s complaint advances both censorship and retaliation 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 6-7. 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