Amicus Curiae Brief — National Rifle Association of America, Petitioner v. Maria T. Vullo

Supreme Court briefNov 18, 2025

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No. 25-479

In the Supreme Court of the United States

__________

NATIONAL RIFLE ASSOCIATION OF AMERICA,

Petitioner,

MARIA T. VULLO,

Respondent.

____________________

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

_______________

BRIEF FOR CONSUMERS’ RESEARCH

AS AMICUS CURIAE IN SUPPORT

OF PETITIONER

__________

CHRISTOPHER E. MILLS

Counsel of Record

Spero Law LLC

557 East Bay Street

#22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

Table of Authorities .....................................................ii

Interest of Amicus Curiae ........................................... 1

Summary of the Argument ......................................... 2

Reasons for Granting the Writ.................................... 4

Government coercion to suppress disfavored

viewpoints is increasingly common, putting

consumers at special risk. ................................ 4

II. Government action through coercion evades

administrative law requirements................... 14

III. Minute factual distinctions should not remove

liability for unlawful coercion. ....................... 16

Conclusion.................................................................. 18

TABLE OF AUTHORITIES

Page(s)

CASES

Anderson v. Creighton,

483 U.S. 635 (1987) .......................................... 17, 18

Azar v. Allina Health Servs.,

587 U.S. 566 (2019) ................................................ 14

Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963) .................................................. 18

City of Arlington v. FCC,

569 U.S. 290 (2013) .................................................. 4

DHS v. Regents of the Univ. of Cal.,

591 U.S. 1 (2020) .................................................... 14

Fed. Mar. Comm’n v. S.C. State Ports Auth.,

535 U.S. 743 (2002) .................................................. 4

Free Enterprise Fund v. Pub. Co. Acct. Oversight Bd.,

561 U.S. 477 (2010) ............................................ 4, 15

Harlow v. Fitzgerald,

457 U.S. 800 (1982) .......................................... 17, 18

Joint Anti-Fascist Refugee Comm. v. McGrath,

341 U.S. 123 (1951) ................................................ 14

Kisor v. Wilkie,

588 U.S. 558 (2019) .......................................... 15, 16

Mathews v. Eldridge,

424 U.S. 319 (1976) ................................................ 14

Murthy v. Missouri,

603 U.S. 43 (2024) .................................................. 11

iii

Nat’l Rifle Assoc. v. Vullo,

602 U.S. 175 (2024) ...................... 2, 5, 12, 15, 16, 18

Norwood v. Harrison,

413 U.S. 455 (1973) ................................................ 13

Sackett v. EPA,

566 U.S. 120 (2012) ................................................ 15

Seila Law LLC v. CFPB,

591 U.S. 197 (2020) .................................................. 5

Smith v. Goguen,

415 U.S. 566 (1974) ................................................ 16

Talk Am., Inc. v. Michigan Bell Tel. Co.,

564 U.S. 50 (2011) .................................................. 15

W. Virginia v. EPA,

597 U.S. 697 (2022) .................................................. 4

OTHER AUTHORITIES

C. Teh, One of MyPillow CEO Mike Lindell’s Banks

has Cut Ties with Him a Month After Citing Him

as a ‘Reputation Risk,’ Business Insider (Feb. 14,

2022), https://perma.cc/P9VT-GUWA ................... 10

E. Crane, Barron Trump was Denied a Bank Account

Due to ‘Cancel Mob,’ Mom Melania Claims, N.Y.

Post (Oct. 9, 2024),

https://perma.cc/7U96-HEGR ................................ 10

Exec. Order 14331, 90 Fed. Reg. 38925

(Aug. 7, 2025) ......................................................... 11

House Comm. on Oversight & Gov’t Reform, Comer

Investigates FDIC’s Potentially Politically

Motivated Attempts to Suppress Crypto-Related

Activity (Feb. 28, 2025),

https://perma.cc/KB5R-QM8Z ................................. 9

FDIC, Annual Historical Bank Data,

https://perma.cc/JH5D-HVNJ

(last visited Jan. 8, 2024)....................................... 12

House Comm. on Oversight & Gov’t Reform, The

Department of Justice’s “Operation Choke Point”

(May 29, 2014),

https://perma.cc/XU8F-LHUC ..................... 5, 6, 7, 8

J. Cox, Chase Bank Cancels National Committee for

Religious Freedom’s Account Just Like it Canceled

Family Council’s, Family Council (Oct. 19, 2022),

https://perma.cc/F5PU-RXJQ .................................. 9

Letter from Daniel Cameron to Jamie Dimon (May 2,

2023), https://perma.cc/2CR7-UHE3 ....................... 9

N. Gorsuch & J. Nitze, Over Ruled: The Human Toll

of Too Much Law (2024) .......................................... 4

R. Cass, Rulemaking Then and Now: From

Management to Lawmaking,

28 Geo. Mason L. Rev. 683 (2021) ........................... 4

R. Keller, Despite Chase Bank Reversal, Donald

Trump Jr. Event in St. Charles Remains Canceled,

Missouri Independent (Nov. 18, 2021),

https://perma.cc/3JJ3-GVKA ................................. 10

Staff of House Comm. on the Judiciary and House

Select Subcomm. on the Weaponization of the Fed.

Gov’t, 118th Cong., The Censorship-Industrial

Complex: How Top Biden White House Officials

Coerced Tech to Censor Americans, True

Information, & Critics of the Biden Administration

(Comm. Interim Report 2024) ............................... 11

T. Zywicki, Cancel Culture Comes to Banking,

Newsweek (Jan. 13, 2022),

https://perma.cc/8Y3H-NHRW .................... 8, 12, 18

INTEREST OF AMICUS CURIAE

Consumers’ Research is an independent

educational 501(c)(3) nonprofit organization whose

mission is to increase the knowledge and

understanding of issues, policies, products, and

services of concern to consumers and to promote the

freedom to act on that knowledge and understanding.

Consumers’ Research believes that the cost, quality,

availability, and variety of goods and services used or

desired by American consumers—from both the

private and public sectors—are improved by greater

consumer knowledge and freedom. To that end,

Consumers’ Research engages in research, policy

advocacy, and public engagement initiatives.

Consumers’ Research has extensive experience

studying consumer-related issues involving the

banking and technology companies whose conduct is

particularly susceptible to government pressure via

regulatory threats. For that reason, Consumers’

Research has a significant interest in this case. *

* Under Rule 37.2, amicus provided timely notice of its intention

to file this brief. Under Rule 37.6, no counsel for a party authored

this brief in whole or in part, and no person other than amicus

curiae, its members, or its counsel made a monetary contribution

to its preparation or submission.

SUMMARY OF THE ARGUMENT

The growth of the modern administrative state has

accompanied increased government involvement in

all areas of American life. With that heightened power

comes a stronger temptation and ability for the

government to achieve its ends indirectly via threats.

This pressure is often easier, faster, and more

effective than going through the messy process of legal

regulation or action. And it can be just as deadly as

outright confrontation. It is, as this Court said, like

“killing a person by cutting off his oxygen supply

rather than by shooting him.” Nat’l Rifle Assoc. v.

Vullo, 602 U.S. 175, 197 (2024) (cleaned up). Yet even

though this Court recognized the constitutional

problem with this pressure last time around, the court

below invoked qualified immunity to avoid

accountability. This brief highlights three considerations that support another intervention by this Court

in this case.

First, the increasing use of government threats

and pressure to indirectly regulate puts constitutional

rights at risk, especially the rights of individual

consumers. Governments appear to be wielding the

varied tools of regulation more often to pressure

private parties to take actions against third parties.

When those third parties are individual consumers,

the risk is especially great. Those consumers lack the

resources of large entities to fight the government’s

intrusion and to find alternative services to replace

those scared off by the government. Those individuals

whose views are unpopular will suffer most. These

individuals may face discrimination and hostility even

on the best of days from companies in rapidly

consolidating industries, companies that often roll

over against minor social media campaigns. When an

official government regulator exerts even slight

pressure on these companies, the consumer stands

little chance.

Second, this indirect government pressure not only

affects constitutional rights, but it also enables

evasion of basic administrative law and due process

requirements. These requirements are a foundation of

the rule of law. They are also inconvenient for the

government. So when the government can achieve its

goals via indirect pressure without ever promulgating

a regulation or meeting a courtroom burden, it will do

so. Once again, what’s lost are the rights of

individuals to be free of government burdens imposed

outside the law’s strictures.

Third, this Court has already recognized some of

these problems in this very case. But the decision

below let the government officials off scot-free,

focusing on factual minutiae with no bearing on the

clear-cut constitutional violation alleged here. This

approach practically negates this Court’s prior

opinion recognizing a constitutional violation. The

broad range of administrative rules and procedures

means there will always be some factual differences

across cases. Those differences should not be enough

erase

the

government’s

liability

for

unconstitutionally pressuring private entities. The

Court should again grant certiorari.

REASONS FOR GRANTING THE WRIT

Government

coercion

suppress

disfavored viewpoints is increasingly

common, putting consumers at special risk.

“The proliferation of Government, State and

Federal, would amaze the Framers,” who “could not

have anticipated the vast growth of the

administrative state.” Fed. Mar. Comm’n v. S.C. State

Ports Auth., 535 U.S. 743, 755 (2002) (cleaned up). The

government “now wields vast power and touches

almost every aspect of daily life.” Free Enterprise

Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477,

499 (2010). “[L]aw in our country has simply

exploded.” N. Gorsuch & J. Nitze, Over Ruled: The

Human Toll of Too Much Law 16 (2024).

“[A] central feature of modern American

government” is that much of this power is wielded by

unelected bureaucrats. City of Arlington v. FCC, 569

U.S. 290, 313 (2013) (Roberts, C.J., dissenting). In

practice, these bureaucrats often “exercise legislative

power, by promulgating regulations with the force of

law; executive power, by policing compliance with

those regulations; and judicial power, by adjudicating

enforcement actions and imposing sanctions on those

found to have violated their rules.” Id. at 312–13.

These agencies continue to spawn, see id. at 313, and

each year, “federal administrative agencies adopt

something on the order of three thousand to five

thousand final rules,” W. Virginia v. EPA, 597 U.S.

697, 741 n.2 (2022) (Gorsuch, J., concurring) (quoting

R. Cass, Rulemaking Then and Now: From

Management to Lawmaking, 28 Geo. Mason L. Rev.

683, 694 (2021)). All this means that the

government—often unelected administrators—have

ready “authority to bring the coercive power of the

state to bear on millions of private citizens and

businesses.” Seila Law LLC v. CFPB, 591 U.S. 197,

219 (2020).

With this tremendous authority comes ample

potential for abuse. Of course, not all abuse is

intentional, and the line between proper pursuit of

government priorities and violation of citizens’

liberties may be narrow. But the mere existence of

abundant authority opens the door to government

coercion. This Court has condemned such coercion,

emphasizing that “[g]overnment officials cannot

attempt to coerce private parties in order to punish or

suppress views that the government disfavors.” Vullo,

602 U.S. at 180. In fact, if government officials are

pursuing enforcement activities to “punish or

suppress . . . protected expression,” that their targets

may have actually violated the law does not excuse

their coercive efforts. Id. at 196.

Many examples suggest that such coercion—with

effects on private citizens that go beyond the

government’s lawful authority and violate citizens’

rights—is increasingly common.

Start with 2013, when the Department of Justice

began an investigation of banks and payment

processors known as “Operation Choke Point.” 1 “The

ostensible goal of the investigation” was “to combat

mass-market consumer fraud by foreclosing

1 House Comm. on Oversight & Gov’t Reform, The Department of

Justice’s “Operation Choke

https://perma.cc/XU8F-LHUC.

Point”

(May

29,

2014),

fraudsters’ access to payment systems”—systems

“that every business needs to survive.” 2 Invoking

subpoena authority intended “to give the Department

the tools to pursue civil penalties against entities that

commit fraud against banks, not private companies

doing legal business,” the Department issued many

subpoenas to banks. 3 These subpoenas were largely

targeted at banks’ relationships with payday lending,

a lawful industry then disliked by the Department. 4

In echoes of the actions against the NRA in this

case, the Department justified its subpoenas by

reference to vague, hypothetical “risks” that may

“affect” financial institutions, while admitting that no

“actual losses” had occurred. 5 The subpoenas and

subsequent settlement proposals that “included

specific bans on doing business with whole categories

of lawful financial services” (including payday

lenders) had their inevitable effect. 6 The targeted

businesses began receiving bank account cancellation

letters en masse, with one typical letter reading: “We

are unable to effectively manage your Account(s) on a

level consistent with the heightened scrutiny required

by our regulators for money service businesses due to

the transactional characteristics of your business.” 7

Thus, the Department achieved indirectly what it

had no authority to do directly: drive lawful

companies out of business by depriving them of the

2 Id. at 1–2.

3 Id. at 1.

4 See id. at 5.

5 Id. at 3–4.

6 Id. at 5–6.

7 Id. at 6.

fundamental services necessary to operate. The

Department acknowledged this inevitable result with

this blasé dismissal:

Although we recognize the possibility that

banks may have therefore decided to stop

doing business with legitimate lenders, we do

not believe that such decisions should alter

our investigative plans.

Solving that

problem—if it exists—should be left to

legitimate lenders themselves who can,

through their own dealings with banks,

present sufficient information to the banks to

convince them that their business model and

lending operations are wholly legitimate. 8

This dismissal underscores the coercive dangers here.

First, by exceeding its authority, the Department

avoided having to prove anything about the affected

companies and instead forced them to prove to

another private entity that they are acceptable.

Second, other private entities would be reluctant to

extend services—few accounts would be worth the

publicity and costs of a “potentially ruinous”

government investigation. 9 Third, the Department’s

actions had an in terrorem effect on other industries,

too, as “merely providing normal banking services to

certain merchants” could be seen to “create[] a

‘reputational risk’ that is an actionable violation.” 10

8 Id. at 7.

9 Id. at 9.

10 Id. at 8.

One set of victims is relevant here: “firearms and

ammunition merchants.” 11

None of this surprised the government. The in

terrorem effect of government coercion was the point.

Indeed, “reputational risk” becomes a self-fulfilling

prophecy, as the government takes actions like

investigations or subpoenas that will inevitably bring

negative attention to an entity and thus damage its

reputation. As the Department crowed after six

months of Operation Choke Point, “many banks have

decided to stop processing transactions in support of

Internet payday lenders,” and “[w]e consider this to be

a significant accomplishment and positive change for

consumers.” 12 Whether or not it was a positive change

for consumers, it was one that depended on the

government exceeding its apparent authority and

using coercive pressure to run lawful companies out of

business.

Similar examples have only mounted in the last

decade, and many affect individuals’ constitutional

rights. “Paypal, major credit card networks and

banks . . . stopped processing payments for organizations they deem ‘hate groups.’” 13 The Family Council,

a conservative advocacy group, was dropped by its

payment processor (a JPMorgan Chase entity)

because it was deemed “High Risk.” 14 JPMorgan

11 Id. at 9.

12 Id. at 7.

13 T. Zywicki, Cancel Culture Comes to Banking, Newsweek (Jan.

13, 2022), https://perma.cc/8Y3H-NHRW.

14 J. Cox, Chase Bank Cancels National Committee for Religious

Freedom’s Account Just Like it Canceled Family Council’s,

Family Council (Oct. 19, 2022), https://perma.cc/F5PU-RXJQ.

Chase also terminated the checking account of the

National Committee for Religious Freedom and

refused to provide an explanation. 15 After public

controversy ensued, “Chase contacted NCRF to note

that the bank would restore the account, but only if

NCRF provided” “[a] list of NCRF’s donors,” “[a] list of

political candidates NCRF intended to support,” and

“[a]n explanation of the criteria NCRF used to

determine its endorsements and support.” 16 “Recent

reports also indicate that numerous individuals and

businesses may have been unlawfully debanked

during the Biden Administration because of their

interest in the cryptocurrency space.” 17

One citizen, outspoken on recent public

controversies, found his bank account being

terminated due to perceived “reputation risk.”

Highlighting the self-fulfilling nature of government

coercion, a bank official on an apparent recording

justified the action by explaining: “But what if

somebody came in and said, ‘You know what? We’re

going to subpoena all of his account records and this

and that,’ and we make the news?” 18 In other words,

the mere threat of a subpoena—and certainly an

15 Letter from Daniel Cameron to Jamie Dimon 3 (May 2, 2023),

https://perma.cc/2CR7-UHE3.

16 Ibid.

17 House

Comm. on Oversight & Gov’t Reform, Comer

Investigates FDIC’s Potentially Politically Motivated Attempts to

Suppress Crypto-Related Activity (Feb. 28, 2025), https://perma.

cc/KB5R-QM8Z.

18 C. Teh, One of MyPillow CEO Mike Lindell’s Banks has Cut

Ties with Him a Month After Citing Him as a ‘Reputation Risk,’

Business Insider (Feb. 14, 2022), https://perma.cc/P9VT-GUWA.

actual subpoena—can drive debanking decisions

based on a person’s advocacy.

Likewise, a JPMorgan Chase subsidiary cancelled

payment processing for an event in Missouri featuring

Donald Trump Jr. because it was allegedly “promoting

‘hate, violence, racial intolerance, terrorism, the

financial exploitation of a crime, or items or activities

that encourage, promote, facilitate, or instruct others

regarding the same.’” “After further review,” Chase

backtracked, albeit too late for the event to proceed,

claiming: “To be clear, we have never and would never

close an account due to a client’s political affiliation.” 19

President Trump’s son Barron “was told he

couldn’t open [a bank] account at [the family’s]

preferred financial institution in the weeks following

the Trumps leaving the White House in early 2021.” 20

First Lady Melania Trump attributed the denial to “a

political ‘cancel mob.’”

In short, as a recent executive order explained,

“[b]ank regulators have used supervisory scrutiny and

other influence over regulated banks to direct or

otherwise encourage politicized or unlawful debanking activities.” 21 “As a result, individuals, their

businesses, and their families have been subjected to

debanking on the basis of their political affiliations,

religious beliefs or lawful business activities, and

19 R. Keller, Despite Chase Bank Reversal, Donald Trump Jr.

Event in St. Charles Remains Canceled, Missouri Independent

(Nov. 18, 2021), https://perma.cc/3JJ3-GVKA.

20 E. Crane, Barron Trump was Denied a Bank Account Due to

‘Cancel Mob,’ Mom Melania Claims, N.Y. Post (Oct. 9, 2024),

https://perma.cc/7U96-HEGR.

21 Exec. Order 14331 § 1, 90 Fed. Reg. 38925 (Aug. 7, 2025).

have suffered frozen payrolls, debt and crushing

interest, and other significant harms to their

livelihoods, reputations, and financial well-being.” 22

Technology companies too have acted under

pressure by government agencies to censor protected

advocacy. To take just one example, the House

Subcommittee on the Weaponization of the Federal

Government found that the Biden White House had

engaged in a “monthslong campaign” to coerce social

media companies to censor Americans’ protected

speech. 23 “[I]n 2021 and 2022, a coterie of officials at

the highest levels of the Federal Government

continuously harried and implicitly threatened

Facebook with potentially crippling consequences if it

did not comply with their wishes about the

suppression of certain COVID–19-related speech.”

Murthy v. Missouri, 603 U.S. 43, 79 (2024) (Alito, J.,

dissenting).

Still, that many of these examples come from the

banking industry is both unsurprising and deeply

troubling, for three reasons. First, in the modern

economy, banking services are a necessity. “[T]he

right to open a business, to express your views or

simply to earn a living are of little value if you cannot

get access to a bank account to collect or make

22 Ibid.

23 See generally Staff of House Comm. on the Judiciary and

House Select Subcomm. on the Weaponization of the Fed. Gov’t,

118th Cong., The Censorship-Industrial Complex: How Top

Biden White House Officials Coerced Tech to Censor Americans,

True Information, & Critics of the Biden Administration (Comm.

Interim Report 2024).

payments.” 24 Second, “financial services is one of the

most heavily regulated sectors of the economy,

characterized by vague and varying regulatory

standards articulated in no manual or published

rule.” 25 Third, banking power resides in fewer and

fewer institutions. Reflecting industry consolidation,

the number of FDIC-insured commercial banks has

plummeted from over 14,000 in 1986 to barely 4,000

in 2022. 26 New entrants are deterred by significant

barriers to entry. 27

Taken together, these features exacerbate the

dangers to individual rights of indirect government

pressure on banks. A person debanked has fewer and

fewer alternatives. That person cannot meaningfully

operate—or advocate—without robust financial

services. And it takes precious little pressure from a

government regulator for a bank to boot a person from

its services. See Vullo, 602 U.S. at 198

(“[I]ntermediaries will often be less invested in the

speaker’s message and thus less likely to risk the

regulator’s ire.”). Because of significant ideological

conformity in large institutions like the dominant

banks, individuals who dissent from the prevailing

orthodoxy are at risk even before any government

pressure is applied. The official pressure makes the

bank’s decision inevitable and easy. It also chills the

individual’s exercise of constitutional rights. In short,

“[t]he combination of thick, discretionary regulation

24 Zywicki, supra note 13.

25 Ibid.

26 FDIC, Annual Historical Bank Data, https://perma.cc/JH5D-

HVNJ (last visited Jan. 8, 2024).

27 See Zywicki, supra note 13.

and high barriers to entry raise concerns that the

financial services industry could increasingly be used

to stifle free speech, democratic participation and

access to legal products and services.” 28 Such

“viewpoint discrimination is uniquely harmful to a

free and democratic society.” Vullo, 602 U.S. at 187.

Though examples involving organizations being

debanked tend to be well publicized, the danger of

government coercion to individual consumers is even

more severe. While an organization might have

resources to defend itself in the press, in court, and in

any internal bank process, an individual consumer is

far less able to do so. More often, they will simply

receive a letter announcing that their account has

been closed, and that’s the end of the matter. The

effect on constitutional rights is just as destructive,

and the consumer will have no meaningful recourse to

fight the banking sector (or a government puppet

master) to defend their rights.

For these reasons, courts must be vigilant to

protect individual rights from even slight government

pressure on financial institutions. That pressure can

readily lead to drastic consequences on individuals

and deprive them of constitutional rights. See

Norwood v. Harrison, 413 U.S. 455, 465 (1973) (“[A]

state may not induce, encourage or promote private

persons to accomplish what it is constitutionally

forbidden to accomplish.” (cleaned up)).

28 Ibid.

II.

Government action through coercion

evades administrative law requirements.

Another significant problem with government

pressure like that deployed below is that it enables the

government to avoid procedures that are the

cornerstone of the rule of law. “It is procedure that

spells much of the difference between rule by law and

rule by whim or caprice.” Joint Anti-Fascist Refugee

Comm. v. McGrath, 341 U.S. 123, 179 (1951)

(Douglas, J., concurring). Procedure not only promotes

good government but also provides the means “by

which federal agencies are accountable to the public.”

DHS v. Regents of the Univ. of Cal., 591 U.S. 1, 16

(2020) (cleaned up). Government pressure exerted

informally to ends that would otherwise require

proper procedures deprives the people of this

accountability and undermines the rule of law.

The government commonly requires adherence to

procedures before taking actions affecting citizens.

For instance, federal and state notice-and-comment

rules “give[] affected parties fair warning of potential

changes in the law and an opportunity to be heard on

those changes—and [they] afford[] the agency a

chance to avoid errors and make a more informed

decision.” Azar v. Allina Health Servs., 587 U.S. 566,

582 (2019). More fundamental due process

requirements, rooted in the Fifth and Fourteenth

Amendments, mandate “the opportunity to be heard

at a meaningful time and in a meaningful manner.”

Mathews v. Eldridge, 424 U.S. 319, 333 (1976)

(cleaned up).

These procedures are not always—or ever—

convenient for the government. But “convenience and

efficiency are not the primary objectives—or the

hallmarks—of

democratic

government.”

Free

Enterprise Fund, 561 U.S. at 499 (cleaned up). Thus,

courts must take care that required procedures not be

disregarded in the pursuit of perceived government

objectives.

As the Court has explained, legal “doctrines must

take account of the far-reaching influence of agencies

and the opportunities such power carries for abuse.”

Kisor v. Wilkie, 588 U.S. 558, 589 (2019). Agencies’

seeking “new means to the same ends” is hardly new.

Talk Am., Inc. v. Michigan Bell Tel. Co., 564 U.S. 50,

69 (2011) (Scalia, J., concurring); see, e.g., Sackett v.

EPA, 566 U.S. 120, 131 (2012) (rejecting agency effort

to “enable the strong-arming of regulated parties into

‘voluntary compliance’”).

The government pressure deployed below against

the NRA is another example of an effort to achieve the

government’s ends without jumping through

procedural hoops. As discussed, when it comes to

consolidated, heavily-regulated industries like

financial services, the required government pressure

will be light—increasing the temptation for

government actors to achieve the same results

through mild pressure that would otherwise require

involved procedures. For, “[s]uch a strategy allows

government officials to expand their regulatory

jurisdiction to suppress the speech of organizations

that they have no direct control over.” Vullo, 602 U.S.

at 197–98 (cleaned up).

Vague regulatory language—like that focused on

“reputational risk”—heightens these problems. “Due

process requires that all be informed as to what the

State commands or forbids, and that men of common

intelligence not be forced to guess at the meaning of

the” law. Smith v. Goguen, 415 U.S. 566, 574 (1974)

(cleaned up). When regulations are vague, citizens

and institutions “are left always a little unsure what

the law is, at the mercy of political actors and the

shifting winds of popular opinion, and without the

chance for a fair hearing before a neutral judge.”

Kisor, 588 U.S. at 613 (Gorsuch, J., concurring). A

vague regulation thus makes it easier to pressure

private institutions—and deprives citizens of

recourse. It also makes it easier for the government to

shift blame for adverse action, making the ballot box

“an especially poor check” on government authority in

such cases. See Vullo, 602 U.S. at 198. “The rule of law

begins to bleed into the rule of men.” Kisor, 588 U.S.

at 613 (Gorsuch, J., concurring).

III. Minute factual distinctions should not

remove liability for unlawful coercion.

Though this Court unanimously recognized the

unconstitutionality of the type of government

pressure allegedly employed here, see Vullo, 602 U.S.

at 180, the decision below denied official accountability by granting Vullo qualified immunity. Under this

Court’s precedents, government officials have

qualified immunity from civil action for their

“discretionary functions” if “their conduct does not

violate clearly established statutory or constitutional

rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). A right is “clearly established” when “[t]he

contours of the right [are] sufficiently clear that a

reasonable official would understand that what he is

doing violates that right.” Anderson v. Creighton, 483

U.S. 635, 640 (1987). Liability does not require that

“the very action in question ha[ve] previously been

held unlawful.” Ibid. Yet the Second Circuit

essentially required just that.

In holding that the constitutional right Vullo

allegedly violated in this case was not “clearly

established,” the Second Circuit relied on minute

factual divergences that lack legal significance. The

primary distinction that the Second Circuit drew

between these facts and those of previous cases that

had denounced similar government coercion was that

the “third parties” Vullo allegedly pressured “were not

disseminating speech on the NRA’s behalf or

otherwise engaging in expressive activity,” Pet. App.

31a, though the NRA was itself engaging in expressive

activity. According to the Second Circuit, it would

have been a “clearly established” violation of the

NRA’s constitutional rights to “coerce[] a convention

center into canceling the NRA’s annual meeting.”

Ibid. But Vullo apparently could not be reasonably

expected to know that she violated the NRA’s rights

by allegedly coercing a bank into cancelling the NRA’s

account or an insurance company into cancelling its

policy—even though doing so hindered the NRA’s

ability to continue its advocacy protected by the First

Amendment.

This distinction is hardly viable, especially in light

of the necessity of banking services. 29 It would be

obvious to a reasonable person in Vullo’s position that

“coercing the third party” financial institutions into

29 See Zywicki, supra note 13.

“limiting or ceasing” their ties with the NRA “also

meant limiting or terminating the plaintiff’s speech

and expression.” Pet. App. 30a (emphasis in original).

And it was the unconstitutionality of just such

“limiting or terminating [of] the plaintiff’s speech and

expression” that the Second Circuit found to be the

“clearly established” law of Bantam Books, Inc. v.

Sullivan, 372 U.S. 58 (1963), and its own precedents.

See Pet. App. 30a. Along the same lines, in finding

that Vullo’s alleged conduct violated the NRA’s rights,

this Court emphasized it was “reaffirm[ing] what it

said” in Bantam Books, rather than breaking new

constitutional ground. See Vullo, 602 U.S. at 180.

Finding a distinction like the Second Circuit drew

sufficient to hold that Vullo’s alleged actions did not

violate a “clearly established” constitutional right

would green-light the pressure that this Court unanimously recognized violates the First Amendment.

Because of the wide variety of administrative

schemes, regulations, and enforcement mechanisms,

noted above, there will nearly always be some factual

differences among coercive government pressure

campaigns. As this Court has noted, “[w]hen

government officials abuse their offices, ‘action[s] for

damages may offer the only realistic avenue for

vindication of constitutional guarantees.’” Anderson,

483 U.S. at 638 (quoting Harlow, 457 U.S. at 814).

Accepting the lower court’s unjustifiably expansive

application of qualified immunity would cut off this

vital avenue, threatening citizens’ First Amendment

right to speak.

CONCLUSION

The Court should grant certiorari.

Respectfully submitted,