Qualified Immunity for Indirect Regulatory Coercion of Non-Expressive Conduct:
A Commentary on Nat’l Rifle Ass’n of Am. v. Vullo (2d Cir. 2025)

1. Introduction

On 17 July 2025 the United States Court of Appeals for the Second Circuit issued its long-awaited decision on remand in Nat’l Rifle Ass’n of Am. v. Vullo. The panel—Judges Chin, Carney and Robinson—confronted a narrow but highly consequential question left open by the Supreme Court: whether former New York Department of Financial Services (DFS) Superintendent Maria T. Vullo was entitled to qualified immunity after the Supreme Court had already held that the National Rifle Association (NRA) plausibly alleged a First Amendment violation stemming from her alleged efforts to pressure regulated insurers to cut ties with the gun-rights group.

The Second Circuit held that Vullo is entitled to qualified immunity because—at the time of the conduct (2017-2018)—no clearly established law placed beyond debate that indirect regulatory pressure aimed at the non-expressive, commercial conduct of third parties could violate a target’s First Amendment rights. The court therefore reversed the district court and remanded with instructions to enter judgment for Vullo.

2. Summary of the Judgment

• The Supreme Court’s 2024 opinion (Vullo II) revived the NRA’s coercion claim but expressly allowed the Second Circuit to revisit qualified immunity.
• Distinguishing cases such as Bantam Books, Rattner, and Okwedy, the panel ruled that the indirect, attenuated nature of Vullo’s alleged coercion—focused on stopping insurers from writing concededly illegal affinity-insurance products—left the law insufficiently settled.
• Because reasonable officials could have believed their conduct lawful, Vullo is immune from damages liability; the NRA’s remaining claims are dismissed.

3. Analysis

3.1 Precedents Cited and Their Influence

1. Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963)
   Classic benchmark for impermissible governmental coercion of speech distributors. The Second Circuit recognized its force but distinguished it because Bantam involved coercion directed at expressive conduct (distribution of books) rather than the underwriting of insurance policies.
2. Zieper v. Metzinger, 474 F.3d 60 (2d Cir. 2007)
   Demonstrates how overt law-enforcement visits can chill a filmmaker’s speech. Again, the target was the speaker himself; the Vullo panel stressed the absence of such directness here.
3. Rattner v. Netburn, 930 F.2d 204 (2d Cir. 1991) and Okwedy v. Molinari, 333 F.3d 339 (2d Cir. 2003)
   Both involve public officials pressuring intermediaries (newspaper, billboard company) to remove speech. They underscore that officials cannot do indirectly what they are barred from doing directly. The Second Circuit nonetheless viewed them as awkward fits because Vullo’s pressure addressed non-speech business relationships.
4. Backpage.com, LLC v. Dart, 807 F.3d 229 (7th Cir. 2015)
   Cited by the NRA for the proposition that threats to cut off credit-card services can violate the First Amendment. The panel found Backpage closer to Bantam (the threatened service—credit processing—was integral to the website’s speech-hosting platform), thus not dispositive of immunity here.
5. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)
   Supplies the causation/“same-decision” test for retaliation. Justice Jackson’s concurrence highlighted the possibility of a Mt. Healthy defense at later stages, but the Second Circuit decided immunity without reaching that issue.

3.2 Legal Reasoning of the Court

The panel applied the familiar two-step qualified-immunity inquiry:

1. Accepting the Supreme Court’s mandate that the complaint plausibly alleged a First Amendment violation.
2. Asking whether the right was clearly established.

Key elements of the court’s reasoning:

• Indirectness and Non-Expressive Conduct. All prior coercion cases involved efforts to suppress actual content or its direct distribution. Vullo’s acts targeted commercial insurance underwriting—conduct that, while affecting the NRA, is not itself speech.
• Lack of “Beyond Debate” Authority. No Supreme Court or Second Circuit precedent held that pressuring a regulated entity to abandon a customer for non-speech reasons automatically transgresses the First Amendment. Absent such precision, officials remain immune.
• Reasonable-Official Perspective. The panel emphasized that even the Second Circuit itself initially sided with Vullo in 2022—underscoring how an experienced jurist could view the conduct as lawful. If judges were divided, the law was not clearly established.
• Conceded Illegality of Carry Guard. Because the affinity-insurance products violated New York law, Vullo’s regulatory interest was facially legitimate, blurring the coercion/ordinary-enforcement line.

3.3 Potential Impact

The decision carves out (at least temporally) a protective zone for regulators who, in pursuing non-speech enforcement objectives, incidentally chill an advocacy organization’s expression by influencing the organization’s commercial partners. Key implications include:

• Qualified-Immunity Jurisprudence. The ruling underscores the Supreme Court’s instruction against framing rights at a high level of generality. Plaintiffs must locate—or persuade courts to create—precedent directly addressing the regulatory mechanism and the speech-inhibiting consequences.
• First Amendment Strategy. Advocacy groups may need to develop more direct factual theories (e.g., compelled silence clauses, advertising bans) rather than rely solely on ripple-effect arguments targeting business relationships.
• Regulatory Caution. Although Vullo prevails personally, agencies are on notice that future, similarly indirect coercion may lose immunity once Vullo II itself becomes clearly established law. The safe harbor is closing.
• Legislative Oversight. State legislatures may revisit statutes governing insurance and banking speech to clarify permissible governmental advocacy versus coercion.

4. Complex Concepts Simplified

• Qualified Immunity. A legal shield that protects government officials from personal liability unless their conduct violates a clearly established right. In practice, plaintiffs must point to earlier cases with materially similar facts.
• Impermissible Coercion vs. Persuasion. Officials may urge, persuade, or even criticize private actors, but they cross the line when their communications can reasonably be understood as threats backed by state power (e.g., license revocation, prosecution).
• Non-Expressive Conduct. Activities such as underwriting insurance or providing banking services are considered commercial conduct, not speech. Government influence over such activities implicates the First Amendment only indirectly.
• Attenuation. Legal term for how many causal steps separate the government’s action from the plaintiff’s speech injury. Greater attenuation often weakens a claim or, as here, strengthens an immunity defense.

5. Conclusion

Nat’l Rifle Ass’n v. Vullo (2025) cements a crucial, albeit time-bounded, principle: where governmental pressure is exerted on third-party regulated entities over non-expressive conduct, and existing precedent has not clearly outlawed such tactics, officials will receive qualified immunity even if the pressure ultimately chills a target’s speech.

The decision highlights a recurring tension in First Amendment doctrine—balancing robust protection for advocacy groups against the latitude regulators need to enforce valid laws. Going forward, Vullo II from the Supreme Court now supplies the missing clarity; therefore, regulators who replicate Vullo’s strategy after 2024 may no longer claim ignorance. For practitioners, the case is an urgent reminder to develop fact-specific precedent and to plead coercion claims with an eye toward the nuanced qualified-immunity landscape.