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

No. 25-479

In the Supreme Court of the United States

__________

NATIONAL RIFLE ASSOCIATION OF AMERICA,

Petitioner,

v.

MARIA T. VULLO,

Respondent.

__________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

__________

BRIEF OF THE CATO INSTITUTE AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

__________

Matthew P. Cavedon

Counsel of Record

Brent Skorup

Harrison Prestwich

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(706) 309-2859

mcavedon@cato.org

Dated: November 19, 2025

i

QUESTIONS PRESENTED

1. When Vullo implemented her scheme against

the NRA, was it clearly established that the First

Amendment did not allow a government official to

coerce a disfavored speaker’s service providers to

punish or suppress disfavored speech on her behalf?

2. When it is obvious that a government official’s

conduct violates the Constitution under longstanding

Supreme Court precedent, is the violation clearly

established for purposes of qualified immunity despite

some factual distinctions that are irrelevant under the

governing constitutional rule?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ......................................... i

TABLE OF CONTENTS.............................................. ii

TABLE OF AUTHORITIES ....................................... iv

INTEREST OF AMICUS CURIAE ............................. 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ................................................................ 4

I. THIS COURT SHOULD REVISIT ITS

QUALIFIED IMMUNITY

PRECEDENTS AND NARROW THE

DOCTRINE’S SCOPE. .................................. 4

A. The Court’s early qualified immunity

decisions were untethered to

statutory text. ............................................ 5

B. As enacted by Congress, Section 1983

forecloses qualified immunity. .................. 7

C.

From the Founding Era through the

passage of § 1983, good faith was not a

general defense to constitutional torts. ........ 9

II. IT IS CLEARLY ESTABLISHED THAT

COERCING THIRD PARTIES TO

SUPPRESS PROTECTED SPEECH IS

UNCONSTITUTIONAL. ............................. 11

III.THE SECOND CIRCUIT’S BROAD

APPLICATION OF QUALIFIED

IMMUNITY WILL HAVE A CHILLING

EFFECT ON THE FIRST

AMENDMENT. ............................................. 13

iii

CONCLUSION .......................................................... 15

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Ashcroft v. al-Kidd, 563 U.S. 731 (2011)............... 4, 13

Bantam Books, Inc. v. Sullivan, 372 U.S. 58

(1963) .............................................................. 3, 4, 12

Briscoe v. LaHue, 460 U.S. 325 (1983) ........................ 6

Fourco Glass Co. v. Transmirra Prod. Corp.,

353 U.S. 222 (1957) .................................................. 8

Hague v. Committee for Indus. Org., 307 U.S.

496 (1939) ................................................................. 8

Hammerhead Enters. v. Brezenoff, 707 F.2d

33 (2d Cir. 1983) ..................................................... 12

Hardt v. Reliance Std. Life Ins. Co., 560 U.S.

242 (2010) ................................................................. 5

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ..... 3, 4, 5, 6

Jones v. Alfred H. Mayer Co., 392 U.S. 409

(1968) ........................................................................ 8

Kisela v. Hughes, 584 U.S. 100 (2018) .................... 3, 5

Little v. Barreme, 6 U.S. (2 Cranch) 170

(1804) ...................................................................... 10

Malley v. Briggs, 475 U.S. 335 (1986) ..................... 6, 9

Miller v. Horton, 26 N.E. 100 (Mass. 1891) .............. 11

Myers v. Anderson, 238 U.S. 368 (1915) ................... 11

NRA of Am. v. Vullo, 49 F.4th 700 (2022) .............. 2, 9

NRA of Am. v. Vullo, 602 U.S. 175 (2024) ........ 2, 4, 12

v

Okwedy v. Molinari, 333 F.3d 339

(2d Cir. 2003) .......................................................... 12

Pierson v. Ray, 386 U.S. 547 (1967) .................... 5, 6, 8

Rattner v. Netburn, 930 F.2d 204

(2d Cir. 1991) .......................................................... 12

Tenney v. Brandhove, 341 U.S. 367 (1951) ................. 8

Texas v. Johnson, 491 U.S. 397 (1989) ..................... 14

United States v. Alvarez, 567 U.S. 709 (2012) .......... 14

United States v. Price, 383 U.S. 787 (1966) ................ 8

United States v. Welden, 377 U.S. 95 (1964) .............. 8

Wood v. Strickland, 420 U.S. 308 (1975) .................... 8

Statutes

42 U.S.C. § 1983....................................................... 2, 5

Other Authorities

Akhil Reed Amar, Of Sovereignty and

Federalism, 96 YALE L.J. 1425 (1987) ..................... 9

Alexander A. Reinert, Qualified Immunity’s

Flawed Foundation, 111 CALIF. L. REV. 201

(2023) .................................................................... 7, 8

Ann Woolhandler, Patterns of Official

Immunity and Accountability, 37 CASE W.

RES. L. REV. 396 (1986) ............................................ 9

Brent Skorup, Deepfake Crackdowns

Threaten Free Speech, REASON

(Nov. 22, 2024) ......................................................... 4

vi

Brent Skorup, House Judiciary Committee

Report Documents More Evidence of

Government Coercion of Social Media

Companies, CATO INST. (May 13, 2024) ................. 14

Brent Skorup, Jimmy Kimmel, the FCC, and

Why Broadcasters Still Have “Junior

Varsity” First Amendment Rights, CATO

INST. (Sept. 19, 2025) ............................................... 4

David E. Engdahl, Immunity and

Accountability for Positive Governmental

Wrongs, 44 U. COLO. L. REV. 1 (1972) ................ 9, 10

David Folkenflik, Jimmy Kimmel’s

suspension shows power of FCC’s Brendan

Carr, NPR (Sept. 19, 2025) .................................... 14

Jack M. Beermann, A Critical Approach to

Section 1983 with Special Attention to

Sources of Law, 42 STAN. L. REV. 51 (1989) ............ 6

James E. Pfander & Jonathan L. Hunt,

Public Wrongs and Private Bills:

Indemnification and Government

Accountability in the Early Republic, 85

N.Y.U. L. REV. 1862 (2010) .................................... 10

JAMES E. PFANDER, CONSTITUTIONAL TORTS

AND THE WAR ON TERROR (2017) .............................. 9

John Fritze, Supreme Court revives case of

citizen journalist arrested for seeking

information, CNN (Oct. 15, 2025) ......................... 15

Julia Swerdin et al., California Repeals Law

Preventing Spread of Misinformation

Regarding COVID-19, THE FREE SPEECH

PROJECT (July 26, 2023) ......................................... 14

vii

Matthew Harwood, The Global Free Speech

Recession, FOUND. INDIVIDUAL RTS.

EXPRESSION (Oct. 30, 2025) .................................... 14

Prosecuting Burning of the American Flag,

Exec. Order No. 14,341, 90 Fed. Reg. 42127

(Aug. 25, 2025) ....................................................... 14

Shawn G. Nevers & Julie Graves

Krishnaswami, The Shadow Code:

Statutory Notes in the United States Code,

112 L. LIBR. J. 213 (2020) ......................................... 7

Thomas A. Berry, Pam Bondi Had to Walk

Back Her ‘Hate Speech’ Comments—for

Good Reason, CATO INST. (Sept. 17, 2025) ............ 14

Will Oremus & Ben Brasch, A retired

policeman posted a Charlie Kirk meme. He

spent a month in jail., WASH. POST

(Oct. 31, 2025) ........................................................ 14

William Baude, Is Qualified Immunity

Unlawful?, 106 CALIF. L. REV. 45 (2018) ....... 6, 9, 11

1

INTEREST OF AMICUS CURIAE1

The Cato Institute is a nonpartisan public policy

research foundation founded in 1977 and dedicated to

advancing the principles of individual liberty, free

markets, and limited government.

Cato’s interest in this case arises from the lack of

legal justification for qualified immunity, the

confusion it inevitably sows when it interacts with

other doctrines such as First Amendment coercion and

retaliation, and the deleterious effect it has on the

ability of the people to vindicate their constitutional

rights.

1 Rule 37 statement: All parties were timely notified of the filing

of this brief. No part of this brief was authored by any party’s

counsel, and no person or entity other than amicus funded its

preparation or submission.

2

SUMMARY OF ARGUMENT

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, according to the

National Rifle Association (NRA), a pro-gun control

organization alerted DFS regulators to possible

problems with insurance products the NRA marketed

to its members. NRA of Am. v. Vullo, 602 U.S. 175,

181–82 (2024) (“Vullo II”). 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. Id. 182–83.

Notably, Vullo summoned the NRA’s insurers to

private meetings and advised them to cease doing

business with the group. Id. at 183. Banks and

insurers soon terminated their relationships with the

NRA and some, apparently, were offered regulatory

leniency by Vullo if they agreed never to work with the

NRA again. Id. At least one insurer called an NRA

official to apologize, explaining his company’s fear of

regulatory reprisal. NRA of Am. v. Vullo, 49 F.4th 700,

710 (2022) (“Vullo I”).

In 2018, the NRA filed suit in federal court under

42 U.S.C. § 1983, seeking injunctive relief and

damages for alleged First Amendment violations.

Despite Vullo’s heavy-handed conduct, in 2022 the

court below went so far as to commend Vullo for her

actions and dismissed the case. Id. at 721 (opining that

“far from acting irresponsibly, Vullo was doing her job

in good faith”). Last year, this Court unanimously

reversed that dismissal, holding that the NRA had

stated a plausible First Amendment claim. Yet despite

3

the Court’s unanimous ruling, on remand the Second

Circuit granted Vullo qualified immunity, concluding

it was “not clearly established” that Vullo “could not

engage in the conduct at issue in this case.” Pet. App.

29a, 37a; but see Bantam Books, Inc. v. Sullivan, 372

U.S. 58 (1963).

The decision below illustrates how, over the last

half-century, the doctrine of qualified immunity has

expanded far beyond its statutory and historical

foundations. What began as an attempt to incorporate

purported and limited common-law immunities into

§ 1983 has evolved into “an absolute shield” for public

officials. Kisela v. Hughes, 584 U.S. 100, 121 (2018)

(Sotomayor, J., dissenting).

We write to emphasize that qualified immunity

finds no support in the text or history of § 1983. The

statute’s plain language makes no mention of

immunity, and lawmakers’ understanding at the time

confirm that § 1983 was designed to eliminate, not

preserve, official immunities. Nor did the common law

of 1871 recognize anything resembling the sweeping

protection that modern qualified immunity provides.

We also highlight that government coercion of

third parties to suppress protected speech plainly

violates the First Amendment. Yet under qualified

immunity, officials escape liability unless the

constitutional violation was “clearly established.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The

Second Circuit concluded that the law here was not

“clearly established” because this Court’s precedent

did not “make clear the more particularized

application” of that precedent to these facts. Pet. App.

34a (emphasis added). The court below erred—the

“clearly established” standard has never demanded a

4

prior case with near-identical facts. This Court was

clear decades ago that “a government official cannot do

indirectly what she is barred from doing directly.”

Vullo II, 602 U.S. at 190 (citing Bantam Books, 372

U.S. at 71–72). Small factual differences cannot excuse

clear constitutional violations.

Finally, if allowed to stand, the Second Circuit’s

decision will have a profound chilling effect on speech.

The First Amendment is regularly tested by states and

the federal government. See, e.g., Brent Skorup,

Deepfake Crackdowns Threaten Free Speech, REASON

(Nov. 22, 2024);2 Brent Skorup, Jimmy Kimmel, the

FCC, and Why Broadcasters Still Have “Junior

Varsity” First Amendment Rights, CATO INST. (Sept.

19, 2025).3 Broad grants of qualified immunity

embolden public officials to continue suppressing

unpopular speech and violating rights—precisely what

§ 1983 was enacted to prevent.

ARGUMENT

I.

THIS COURT SHOULD REVISIT ITS

QUALIFIED IMMUNITY PRECEDENTS

AND NARROW THE DOCTRINE’S SCOPE.

Qualified immunity shields government officials

from liability unless a plaintiff can show “(1) that the

official violated a statutory or constitutional right, and

(2) that the right was ‘clearly established’ at the time

of the challenged conduct.” Ashcroft v. al-Kidd, 563

U.S. 731, 735 (2011) (quoting Harlow, 457 U.S. at 818).

The doctrine began as an effort to incorporate certain

common-law immunities into § 1983. See Pierson v.

2 Available at https://tinyurl.com/35y6tued.

3 Available at https://tinyurl.com/ycy6vnm6.

5

Ray, 386 U.S. 547, 554 (1967). But over time, this

Court has greatly expanded the doctrine, citing policy

considerations like litigation costs and government

efficiency. See Harlow, 457 U.S. at 814–15. As the

decision below demonstrates, modern qualified

immunity bears little resemblance to its statutory or

historical foundations and now stands as “an absolute

shield” available to rights-violating state officials like

Vullo. Kisela, 584 U.S. at 121 (Sotomayor, J.,

dissenting).

A. The Court’s early qualified immunity

decisions were untethered to statutory

text.

Section 1983 was enacted as part of the Ku Klux

Klan Act of 1871 to give people—especially freedmen—

the right to sue state officials who deprived them of

their constitutional rights. Section 1983 provides, in

its relevant part:

Every person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any State . . . subjects, or causes

to be subjected, any citizen of the United

States . . . to the deprivation of any rights,

privileges, or immunities secured by the

Constitution and laws, shall be liable to

the party injured . . . .

42 U.S.C. § 1983.

This Court has long instructed judges to “enforce

plain and unambiguous statutory language according

to its terms.” Hardt v. Reliance Std. Life Ins. Co., 560

U.S. 242, 251 (2010) (citations omitted). Few judicial

doctrines have strayed further from this principle than

qualified immunity. By its plain terms, every person

6

who violates a protected right is “liable to the party

injured.” As this Court has acknowledged, “the statute

on its face does not provide for any immunities.”

Malley v. Briggs, 475 U.S. 335, 342 (1986).

The Court’s early cases erecting the doctrine of

qualified immunity did not point to any textual license

for doing so. See Jack M. Beermann, A Critical

Approach to Section 1983 with Special Attention to

Sources of Law, 42 STAN. L. REV. 51, 66 (1989) (“The

Court never explains why, in the immunities context,

statutory silence should lead it to the common law.”)

In Pierson v. Ray, for instance, the majority

incorporated immunities into § 1983 “[d]espite the

plain import of [the statute’s] words.” Pierson, 386 U.S.

at 559 (Douglas, J., dissenting). In Harlow v.

Fitzgerald, the Court expanded qualified immunity

due to its policy assessment of the “social costs” of

litigation, Harlow, 457 U.S. at 814, but offered no

explanation for why it had “authority to modify a test

that was supposedly faithful to congressional intent.”

Beermann, supra, at 68 (emphasis added).

Recognizing qualified immunity despite § 1983’s plain

text “turns the conventional approach to statutory

interpretation on its head,” presuming “that Congress

did not mean what it said.” Briscoe v. LaHue, 460 U.S.

325, 348 (1983) (Brennan, J., dissenting).

The historical context of § 1983 confirms

Congress’s intent to ensure avenues for accountability.

It was first passed by the Reconstruction Congress as

part of the Ku Klux Klan Act, itself part of the

“Enforcement Acts” designed to combat civil rights

violations in southern states. See William Baude, Is

Qualified Immunity Unlawful?, 106 CALIF. L. REV. 45,

49 (2018). The Fourteenth Amendment had been

7

ratified just three years earlier, and many of its

protections were far from what modern precedent

would count as “clearly established law” in 1871.

Incorporating qualified immunity as a § 1983 defense

would have rendered Congress’s effort to confront

pervasive postwar civil rights violations largely

toothless.

B. As enacted by Congress, Section 1983

forecloses qualified immunity.

There is an even greater historical flaw

undermining the legitimacy of qualified immunity: the

Supreme Court has been construing the wrong

statutory text. Shortly after Congress enacted the

Civil Rights Act of 1871, the First Reviser of Statues

erroneously removed a sixteen-word clause from the

statute during the codification process. See Alexander

A. Reinert, Qualified Immunity’s Flawed Foundation,

111 CALIF. L. REV. 201, 235 (2023). These sixteen

crucial

words

afford

a

cause

of

action

“notwithstanding” any “law, statute, ordinance,

regulation, custom, or usage of the State to the

contrary.”4 Id. This clause clearly and unambiguously

abrogates common-law immunities.

In 1874, the Reviser of Federal Statutes compiled

and consolidated federal statutes in one place for the

first time. See id. at 236–37; Shawn G. Nevers & Julie

Graves Krishnaswami, The Shadow Code: Statutory

Notes in the United States Code, 112 L. LIBR. J. 213,

218–19 (2020). In doing so, the Reviser, for unknown

reasons, erroneously omitted the Notwithstanding

This clause has been referred to as the “Notwithstanding

Clause” and it appears “between the words ‘shall’ and ‘be liable’”

in the original statutory text. Reinert, supra, at 235.

4

8

Clause from the text of Section 1983. See Reinert,

supra, at 237. And while the Revised Statutes “were

supplemented and corrected over time,” the omission

of the Notwithstanding Clause was never corrected.

Id.

The Reviser’s changes were meant to

“consolidat[e] the laws,” not change their meaning.

United States v. Welden, 377 U.S. 95, 98 n.4 (1964). As

this Court has explained, where a statutory change

“was made by a codifier without the approval of

Congress, it should be given no weight.” Id.; see also

Fourco Glass Co. v. Transmirra Prod. Corp., 353 U.S.

222, 227 (1957) (Reviser’s changes “do not express any

substantive change”); Hague v. Committee for Indus.

Org., 307 U.S. 496, 510 (1939) (changes to the

statutory text “were not intended to alter the scope of

the provision”); Jones v. Alfred H. Mayer Co., 392 U.S.

409, 422 (1968) (Reviser’s removal of a clause in

Section 1982 did not change the statute’s meaning);

United States v. Price, 383 U.S. 787, 803 (1966)

(removal of a clause in Section 241 was accompanied

by “the customary stout assertions of the codifiers that

they had merely clarified and reorganized without

changing substance”).

The Court’s qualified immunity precedent follows

from the premise that “Congress by the general

language of its 1871 statute” did not intend “to

overturn the tradition” of common law immunity.

Tenney v. Brandhove, 341 U.S. 367, 376 (1951); see also

Pierson, 386 U.S. at 555–57. Qualified immunity is

derived from the Court’s understanding of historical

state common law. See Reinert, supra, at 23; Pierson,

386 U.S. at 555–57; Wood v. Strickland, 420 U.S. 308,

318–20 & nn. 9, 12 (1975). But the original text of

9

Section 1983 fatally undermines that premise because

it expressly displaces state common-law immunities.

C. From the Founding Era through the

passage of § 1983, good faith was not a

general defense to constitutional torts.

Qualified immunity is a generalized good-faith

defense for all public officials, shielding “all but the

plainly incompetent or those who knowingly violate

the law.” Malley, 475 U.S. at 341. The court held that

Vullo acted in good faith and therefore cannot be held

liable. See Vullo I, 49 F.4th at 721. But because the

sole historical defense in constitutional-tort was

legality, there is no justification for importing a “goodfaith” defense into § 1983. See Baude, supra at 55–58.

In the Founding Era, constitutional claims

typically arose in suits to enforce common-law rights.

For example, if an unconstitutional search was

alleged, an individual might sue a federal officer for

trespass, the defendant would then claim legal

authorization as a federal officer, and the plaintiff

would in turn claim that the trespass was

unconstitutional to overcome this defense. See Akhil

Reed Amar, Of Sovereignty and Federalism, 96 YALE

L.J. 1425, 1506–07 (1987). These lawsuits did not

permit a good faith defense. See generally JAMES E.

PFANDER, CONSTITUTIONAL TORTS AND THE WAR ON

TERROR 3–14, 16–17 (2017); Ann Woolhandler,

Patterns of Official Immunity and Accountability, 37

CASE W. RES. L. REV. 396, 414–22 (1986); David E.

Engdahl, Immunity and Accountability for Positive

Governmental Wrongs, 44 U. COLO. L. REV. 1, 14–21

(1972).

10

The clearest example of this principle is Chief

Justice Marshall’s opinion in Little v. Barreme, 6 U.S.

(2 Cranch) 170 (1804). See James E. Pfander &

Jonathan L. Hunt, Public Wrongs and Private Bills:

Indemnification and Government Accountability in the

Early Republic, 85 N.Y.U. L. REV. 1862, 1863 (2010)

(“No case better illustrates the standards to which

federal government officers were held . . . .”). The

federal law at issue authorized seizure only of a ship

going to a French port, but President Adams had

issued broader instructions to also seize ships coming

from French ports. See Little, 6 U.S. (2 Cranch) at 178.

The question was whether a captain’s reliance on the

president’s instructions was a defense against liability

for a seizure that violated the federal law.

This Court rejected such a defense, rejecting the

very rationales that now justify qualified immunity.

Chief Justice Marshall, speaking for the Court,

considered but ultimately rejected protecting officers

from damages when they act in good faith. Id. at 179.

Even if the defendant had acted with “pure intention,”

the Court held, “the instructions cannot change the

nature of the transaction, or legalize an act which

without those instructions would have been a plain

trespass.” Id.

This “strict rule of personal official liability, even

though its harshness to officials was quite clear,”

persisted throughout the nineteenth century.

Engdahl, supra, at 19. Its severity was mitigated by

congressional indemnification. Pfander & Hunt,

supra, at 1867. Still, for the first century of the

Republic, courts routinely held public officials

personally liable for unconstitutional conduct without

adopting a good-faith defense. See, e.g., Miller v.

11

Horton, 26 N.E. 100, 100–01 (Mass. 1891) (per Holmes,

J.) (holding officials acting under orders liable for

killing an animal they mistakenly believed to be

diseased).

Most importantly, this Court rejected a good-faith

defense to § 1983 liability in particular. In Myers v.

Anderson, 238 U.S. 368 (1915), the Court considered a

suit against election officers who had refused to

register Black voters under a discriminatory

“grandfather clause” statute, thereby violating the

Fifteenth Amendment. Id. at 377–78. The defendants

argued that they could not be liable for money

damages under § 1983 because they acted in good

faith. See Br. for Pls. in Error at 23–45, Myers, 238

U.S. at 368 (Nos. 8–10). The Myers Court noted that

“[t]he non-liability . . . of the election officers for their

official conduct is seriously pressed in argument”—but

still rejected their claims of immunity. Myers, 238 U.S.

at 378–79.

Such rejection of any general good-faith defense “is

exactly the logic of the founding-era cases, alive and

well in the federal courts after Section 1983’s

enactment.” Baude, supra, at 58 (citation omitted).

Neither the text, congressional intent, nor history of

§ 1983 provides support for qualified immunity.

II. IT IS CLEARLY ESTABLISHED THAT COERCING THIRD PARTIES TO SUPPRESS

PROTECTED SPEECH IS UNCONSTITUTIONAL.

The court below applied an excessively strict

“clearly established test.” It held that even if Vullo had

“offered[ed] leniency” to financial institutions on the

condition that they “severed ties with the NRA,” she

12

could not have known that such conduct violated the

First Amendment. But this Court has already

recognized—in this very case—that the prohibition on

government coercion of third parties to suppress

speech is solidly established First Amendment law.

Vullo II, 602 U.S. at 180 (“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, 83 S. Ct. 631, 9 L. Ed.

2d 584 (1963). Today, the Court reaffirms what it said

then . . . .”).

The Second Circuit’s own precedent reflects that.

In Okwedy v. Molinari, the Second Circuit found it

unconstitutional for a borough president to threaten a

billboard company with regulatory action if it did not

remove a controversial advertisement. Okwedy v.

Molinari, 333 F.3d 339, 342–44 (2d Cir. 2003) (per

curiam, for a panel including Sotomayor, J.). Even

though the borough president lacked direct regulatory

authority, he could not exert an “impermissible type

. . . of pressure” over third parties. Id. at 343 (finding

that the threat was sufficient to cause the billboard

company to fear that noncompliance would interfere

with its business). Further, this principle has been

Second Circuit precedent for decades. See, e.g., Rattner

v. Netburn, 930 F.2d 204, 209–10 (2d Cir. 1991)

(finding a plausible allegation of a First Amendment

violation where an official threatened a newspaper

with regulatory action if it kept airing certain views);

see also Hammerhead Enters. v. Brezenoff, 707 F.2d

33, 39 (2d Cir. 1983) (dicta) (recognizing the possibility

of a First Amendment violation “where comments of a

government official can reasonably be interpreted as

13

intimating . . . adverse regulatory action” for “failure

to accede to the official’s request”). The Second Circuit

acknowledged, as it had to, that “the cases cited above

clearly establish that coercion amounting to

censorship and retaliation violate the First

Amendment.” Pet. App. 21a. Yet the court failed to

hold that those precedents clearly established the law.

The Court’s previous decision in this case provided

helpful reinforcement for the First Amendment, but it

was not doctrinally groundbreaking—in terms of

either this Court’s precedent or that of the Second

Circuit. The impermissibility of coercing third parties

in order to suppress others’ speech has been “beyond

debate” since Bantam Books in 1963. Ashcroft, 563

U.S. at 741. It was lucidly established at the time Vullo

violated the NRA’s constitutional rights.

III. THE SECOND CIRCUIT’S BROAD APPLICATION OF QUALIFIED IMMUNITY WILL

HAVE A CHILLING EFFECT ON THE FIRST

AMENDMENT.

Qualified immunity not only misunderstands

§ 1983 and invites official misconduct, it has a chilling

effect on speech. When public officials can suppress

ideas with little fear of liability, expression is chilled

and people self-censor.

Even if a speaker proves that a government official

violates its constitutional rights, in many cases, it

cannot recover damages. Unsurprisingly, then, public

officials frequently test the limits of the First

Amendment.5 For instance, police incredulously

5 Though not subject to § 1983 liability, federal officials also fre-

quently test First Amendment protections and benefit from qualified immunity. President Trump recently issued an executive

14

construed a meme about Charlie Kirk’s assassination

as a threat to a local school and held a Tennessee man

in jail for a month. Will Oremus & Ben Brasch, A

retired policeman posted a Charlie Kirk meme. He

spent a month in jail., WASH. POST (Oct. 31, 2025).6

And California officials attempted to regulate

“misinformation” regarding COVID-19, even though

conformity to existing scientific consensus is not a

prerequisite to constitutional protection. Julia

Swerdin et al., California Repeals Law Preventing

Spread of Misinformation Regarding COVID-19, THE

FREE SPEECH PROJECT (July 26, 2023);7 see United

States v. Alvarez, 567 U.S. 709 (2012). What is more,

this Court recently granted certiorari in a case where

a local Texas journalist was jailed for reporting

order directing federal prosecutors to pursue charges against individuals who “violate our laws” while burning a flag—an act long

recognized by this Court as protected expression. Prosecuting

Burning of the American Flag, Exec. Order No. 14,341, 90 Fed.

Reg. 42127 (Aug. 25, 2025); Texas v. Johnson, 491 U.S. 397 (1989).

Similarly, after the assassination of Charlie Kirk, Attorney General Pam Bondi declared that “we will absolutely target you, [and]

go after you” for using hate speech (she later retracted this warning). Thomas A. Berry, Pam Bondi Had to Walk Back Her ‘Hate

Speech’ Comments—for Good Reason, CATO INST. (Sept. 17, 2025),

https://tinyurl.com/4u26485s. See also David Folkenflik, Jimmy

Kimmel’s suspension shows power of FCC’s Brendan Carr, NPR

(Sept. 19, 2025), https://tinyurl.com/27a7c3aw; Matthew Harwood, The Global Free Speech Recession, FOUND. INDIVIDUAL RTS.

EXPRESSION (Oct. 30, 2025), https://tinyurl.com/4khabza3 (Trump

administration officials “leaning on” Facebook to remove an app);

Brent Skorup, House Judiciary Committee Report Documents

More Evidence of Government Coercion of Social Media Companies, CATO INST. (May 13, 2024), https://tinyurl.com/c5jkz2dr.

6 Available at https://tinyurl.com/3994xazv.

7 Available at https://tinyurl.com/4r6ptmt9.

15

critically on the conduct of government officials. John

Fritze, Supreme Court revives case of citizen journalist

arrested for seeking information, CNN (Oct. 15, 2025).8

Qualified immunity endangers speech. As the

government finds ever more creative ways to infringe

upon the First Amendment, qualified immunity

dictates that courts sit idly by and deny those harmed

any remedy. Absent the ability to recover for their

losses, many would-be speakers will censor themselves

in the face of official threats. Qualified immunity

exchanges for the First Amendment’s promise of a

robust marketplace of ideas an awful vacuum of

thoughts left unvoiced.

CONCLUSION

For these reasons and those given by Petitioner,

this Court should grant the petition.

Respectfully submitted,

Matthew P. Cavedon

Counsel of Record

Brent Skorup

Harrison Prestwich

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(706) 309-2859

mcavedon@cato.org

Dated: November 19, 2025

8 Available at https://tinyurl.com/3bssrh98.