Did a New York Regulator Run an Illegal Censorship Scheme?
A former New York financial regulator has so far escaped consequences for pressuring banks and insurance companies to sever ties with the National Rifle Association—even after a unanimous Supreme Court held that government officials cannot use their authority, directly or indirectly, to suppress protected speech, as Maria Vullo allegedly did.
Now a coalition of gun-rights advocates, conservative and libertarian groups, and prominent legal scholars is urging the Court to go further. They want SCOTUS to scale back its judge-made doctrine of qualified immunity and allow victims to hold overreaching bureaucrats personally liable under federal law.
The 2nd U.S. Circuit Court of Appeals granted Vullo qualified immunity after SCOTUS revived the NRA’s First Amendment lawsuit, reasoning that “a reasonable officer” might have believed her conduct was lawful—even though the Supreme Court had simply reaffirmed the controlling 1963 precedent Bantam Books in restoring the case.
The NRA is asking the Court to return to the case to resolve a central question: Was it already “clearly established” at the time—meaning obviously unconstitutional—that the First Amendment forbids coercing third-party service providers into punishing disfavored speakers? The group also argues that even if the facts differ from Bantam Books, the core constitutional rule remains the same, and factual nitpicking cannot shield officials from liability.
Consumers’ Research stressed that the “vast array of administrative rules” means factual distinctions will always exist—but should never wipe away government liability for unconstitutional pressure campaigns. Business and financial law scholars likewise criticized the 2nd Circuit for pretending Bantam applies only to “conduits of speech,” noting that large organizations cannot operate without the financial services Vullo targeted. Cutting off those services inevitably cripples their ability to speak.
Scholars, including George Mason University’s Todd Zywicki, argued that Vullo exploited a regulatory environment where businesses fear ignoring even “non-binding” statements from regulators. Courts, they said, must not overlook the “deliberate and repeated” nature of her conduct, which she carried out alongside then-Gov. Andrew Cuomo.
Institute for Justice: SCOTUS created the problem it now avoids
The Institute for Justice filed one of the blistering briefs, accusing the Supreme Court of contradicting itself—urging judicial restraint in creating remedies while simultaneously inventing qualified immunity out of whole cloth. The doctrine, it argued, protects “desk-bound bureaucrats” who scheme to silence critics more than police officers forced to make split-second decisions. At minimum, IJ argued, qualified immunity should apply only to police.
Gun Owners of America, joined by Citizens United and others, said the doctrine was never meant to protect officials like Vullo—senior regulators with teams of lawyers—not “cops on the beat.” Qualified immunity currently assumes officials have no obligation to understand the Constitution unless a prior court case mirrors their situation exactly, an assumption the brief calls “inherently illogical.”
ADF: Lower courts are playing ‘choose your own adventure’
The Alliance Defending Freedom, which has won 16 Supreme Court cases since 2011, urged the Court to finally clarify the standard. It argued that the 2nd Circuit had to contort itself to shield Vullo by focusing on the “means” she used rather than the obvious unconstitutionality of her actions. ADF said the Court already uses a sliding-scale approach for “clearly established” rights, with specific rules needed in police contexts but broader standards sufficient in non-emergencies like Vullo’s. Because SCOTUS has left that test unclear, lower courts have turned qualified-immunity rulings into a “choose-your-own-adventure” exercise.
FIRE: The law was already clear—Vullo ignored it
The Foundation for Individual Rights and Expression (FIRE) wrote that before Vullo acted, courts nationwide had clearly established that indirect censorship through third-party coercion violates the First Amendment, regardless of the type of business targeted. FIRE cited cases involving land ownership, convention-center operations, and even threats against stores selling a satirical welfare-themed board game.
A broad coalition calls it a ‘proxy war’ on constitutional rights
Another large coalition—led by Advancing American Freedom and the Manhattan Institute—argued that when regulators condition leniency on advancing the government’s unconstitutional goals, they engage in a forbidden “proxy war” on constitutional rights. They compared Vullo’s behavior to the infamous line attributed to King Henry II—“Will no one rid me of this turbulent priest?”—a signal his knights understood as authorization to kill Archbishop Thomas Becket.
The brief even pointed to bipartisan examples of jawboning: Trump-era saber-rattling about “hate speech” after the assassination of Charlie Kirk, FCC threats over alleged “news distortion,” and Biden-era efforts to pressure platforms.
Please Support Our Sponsors:
American Alternative Assets: Uncover the truth behind market turbulence. The Bellweather Signal reveals 7 hidden economic indicators flashing red right now. Get the free report and learn how to protect your savings with gold and silver. Download it today at https://www.CloutGold.com
Discover LegiSector! Stay up-to-date on issues you care about with LegiSector’s state-of-the-art summarizing capabilities and customizable portals. Try now for a free trial…Learn more at https://www.legisector.com