In 2017, Maria Vullo served as the powerful head of New York’s Department of Financial Services (DFS), which regulates financial and insurance companies across the state. That year, a gun-control advocacy group alerted DFS regulators to possible problems with insurance products the National Rifle Association (NRA) marketed to its members. The NRA contends the agency seized upon this tip as a pretext to target the NRA and use its regulatory power to cut it off from financial services because of its pro-gun rights advocacy. What followed included private meetings between Vullo and the NRA’s insurers, where she advised them to cease doing business with the NRA. Many complied and cut ties with the NRA—and at least one called an NRA official to apologize, explaining that his company feared regulatory reprisal.

In 2018, the NRA filed suit in federal court seeking damages for alleged First Amendment violations. Despite Vullo’s heavy-handed conduct, in 2022 the Court of Appeals for the Second Circuit went so far as to commend Vullo for her actions and dismissed the case. However, last year the U.S. Supreme Court unanimously reversed that dismissal, holding that the NRA had stated a plausible First Amendment claim.

Despite that decision, the Second Circuit this year ruled that Vullo is nevertheless entitled to qualified immunity—a judicially created doctrine that shields public officials from liability for constitutional violations. Now the NRA is again seeking Supreme Court review, and Cato has filed an amicus brief in support of their petition.

Our brief urges the Court to revisit its qualified immunity precedents and narrow the doctrine’s scope. Qualified immunity finds no support in the text or history of 18 U.S.C. § 1983, the statute the NRA sued under. The statute’s plain language makes no mention of immunity, and its framers understood it to eliminate—not preserve—official immunities. Congress intended § 1983 to hold public officials liable, but modern qualified immunity has transformed it into an “absolute shield.”

We also emphasize that, as the Supreme Court ruled in Bantam Books v. Sullivan (1963), government coercion of third parties to suppress protected speech plainly violates the First Amendment. Yet under qualified immunity, officials escape liability unless the violation was “clearly established.” The Second Circuit applied that test to grant Vullo immunity simply because no prior case had near-identical facts—a standard that lets officials evade accountability for obvious constitutional violations.

Finally, our brief warns of the chilling effect such rulings have on speech. The First Amendment is regularly tested by state and federal officials. When those in power can pressure private actors to silence disfavored voices without consequence, expression is stifled and people self-censor.

Regulators should not be able to punish speakers with impunity. Reversing the Second Circuit’s decision will help restore accountability and a robust marketplace of ideas.