june 2024 to issue a ruling. chief justice roberts: next in case 22-842, national rifle association of america v. vullo mr. cole? mr. cole: mr. chief justice, and may it please the court, gornment officials are free to urge people not to support political groups they oppose, buthey cannot use their regulatory might to add "or else" to that request. respde vullo did justha not content to rely on the force of her ideas, she used the coercive power of her office. in february 2018 she told lloyds, the sunce underwriter, that she would go easy on its unrelated insurance violio if it aided her campaign to weaken the nra by halting all duesith the group. llds agreed. six wes ter she issued guidance letters and a press release directing the thousands

of banks and insurance companies that she directly overse to t off their ties with the nra, not becae any alleged illegality, but because they promote guns. in the accpanying press release vullo's boss and cofendant, governor andrew cuomo, said he directed vullo to issue the guidance because doing business witthnra "sends the wrong message." shortly thereafter, vullo extracted legally binding consent orders from the nra's three principal insurance provider barring them from eve providing insurance to the group ever ain no matter how lawflyhey do so. these actions workeds multiple financial institutions refused to do business with the nra, ting vullo's threats. this was notbo enforcing insurance law or goveren speech. it was a campaign by the state's highest political officials to use their power oerce a a

boycott of a political advocacy ornization because they disagreed with its advocacy. governor cuomo essentially conceded as chn two ....... responding to this lawsun which he said, "the regulations new york put in place are working. we are forcing the nra into financial jeopardy. we won't stop until we shut them wn. it is time to put e gun lobby out of business. #bankruptthenra." the only question is whether ese allegations taken as a ol plausibly plead airst amendment claim. cause vullo chose coercion over persuasion, they do. i welcome the court's questions. justice thomasmrcole, what is the protected speech that you allege has been supesd? mr. cole: promoting guns. voting for gun rights. sending the wrong message. is precisely the speech of

the nra which caused mr. col and omo -- which caused vullo and cuomo to decide to target their partners and seek to coerce them into boycotting the nr they are seeking to penalize the nra because of its speech advocating for gun rights. justice thomas: so your argument ishat the sanctions on a third party suppressed thepeh of nra? mr. cole: your honor, the court's first amendment restrictio ds not require proof of suppression, it requesroof of burden. it is legal to propose on dolla fine -- a $1 fine. here we have actually alleged -- it has cost the nra millions of dollars as a result of the kinds of coercion that has been put in place here, and the nra like any

other advocacy gupelies on banks, relies on insurance companies to be able to do their business and what is the business? political advocacy. justice kagan: isn't the issue of coercion different than the firsamdment question? you are relng think bantam books, is that correct? mr. cole: y. >> as i read that case, there were two this going on. there was unconstitial prior restin and the court recognized that, a tre was the limitation of the unconstitutional restraint through the means of government coercion. if i'm right about that in terms of how we should be inking about bantam books, then don't we have two different questions here, the first being did vullo actually coerce any regulad entits to do something vis-a-s e n, d then was that something a violation of ther's first amendment rights, say through

retaliation or censorship, the two first amendment theories i pick up from your complaint? mr. cole: justice jackson, i thk what bantam books stands for is government officials are free to encourage people tta down speech or to penalize a ou what they are not free to do is to use coercion to that end. here there is no questioon this record that they encouraged people to punish the nra ecisely because, and only because of its political views. justicjason: no, i understand that -- no, no, but there are two different pieces, right? you have to show there is coercion, and you allege that, but u so have to show that that coercion resultedn first amendment violation. bantam bookss ying you can't do indirectly what you -- right, what you can't do directly. butheirect thinking bantam books was prior restraint.

this here doesn't look like prior restraint, so what is your -- this is justicehomas's question again, what is your theory of the first amendment? mr. cole: again, it is the same sw as to justice thomas. of course the first amendment prohibits absolute censorship or suppression of speech, but it also prohibits the imposition of any burden on speech because of its content. even if the government denies a contract to an entity because it disapproves of -- justice jackson: right, but isn't the hard part figuring out whether or not the burden is being imposed because t content of the speech or becau of the conduct? that is where we have to be real ceful about what you are alleging is a first amendment problem, because e government can regulate conduct. mr. cole: i agree, and if this was a case where the government d said the nra is violating e law left and rht and we have to respond to that, and here are the legal obligations, that would be one thing. that is not what they said. they said "we want to shut the

a dow wwant to put the gun lobby out of business." the title of the guidance letters that she issues are guidance regarding the nra and her gun-promotion organizations. the whole guidances saying i don't kehe fact that people use guns, i don't like the fact that people advocate for the use gun wneed to stop this, we need -- justice jackson:s't that her motivation? at sounds to me more like a retaliation kind of first amendment theory, as opposed to something that is happening in bantam books, which is pressure being applied to actual entit ies that themselves are speech distributors, so that those entities are censoring the speech in their power because they are the kinds of things, but distributors, etc. -- book distributors, etc. these are insurance companies who are being pressured, so it is at least attenuateinhat

sense, the impact on speech, correct? mr. co: so if the government were providing iurance, you have a contract -- let's say provides some sort of insurance to advocacy organizations and said "we will give iurce to some but we are nogog to give it to advocacy organizations that disagree with us and promote guns." that would be a clear violation of the first amendment. it would not be censorship, it wod t be suppression, but it would be a penalty imposed becaus of the viewpoint expressed by the organization. in this case, maria vullo herself and governo cuomo made it absolutely clear both enclosed-door -- both in closed-door meetings wh lloyd's and public guidance letters an and in tweets about this case that they were singling out the nra,nofor insurance violations, but because of omoting guns. they were against the promotion

ofgo. they can advocate against the promioof guns and encourage people not to support the nra, what they can to do is voke the cohorts of -- coercive authority fice. she could've written an op-ed that e s moved by the problems of gun vien, but she didn't. she invoked her statutory authorit ique authority, to issue guidance letters. what are idce letters? according to respondents, they are sied to tell regulated entities their litions. sending a guan letter, what she does is talk about how bad guns are, anthen says, in light of the abov we urge you to reconsider your relations with the nra and other gun promioorganizations. no evidence that any other organitis are involved in any insurance legality or ytng. and we consider you your risks d nage those risks. take prompt action. that she is is a press release the same day and says, cut your

ties. >> are you asking the court to break any new ground in this case? >> absolutely not. this is about as square corners of bantam books case as you can imagine. >> how does your understanding of bantam books differ, if at all, from respondents from the ? >> the sg is essentially on our side, formally not supporting either rt but they support the reversal emirates question we believe you have to demonstrate coercion. you have to demonstrate some coercive threat. some invocation of regulatory adrse action. we have that here. we have it ththe insurance law enforcement, we have it with the invocation of reputationalri. reputational risk, shouldn't just say guns are bad, we

should reconsider relation with the nra. she said guns are bad, you ould reconsider relations with the nra because it is a reputational risk. >> but that idea of reputational risk, that is a re idea. it wasn't invented for the nra. there is a view that bank regularshave the companies are supposed to look at the reputational risk. so how do we know, there is obviously a lot about guns in that tt, but it might be th guy and efficacy groups, gun companies, do impose reputational risks of the kind that bank regulators are concerned about. where -- how do we know? >> i don't think you actually have to ma that decision, justice kaga the question under bantam books, there are two emts. did the government urge third paies to penalize or suppress spch and two, did they use coercion to effectuate that encouragement?

e vocation of reputational risk is the use of coci, whether or not it is, in fact, a reputational risk or not. itisstill the use of the coerci thority of the state eourage these entities to punish the nra because of its speech, to cut their ties. that is numberon number two, look at the lloyds meeting. there is no discussion about putional risk there. >> i put the lloyds meeting on the different category. was really more intest in, i think this is a closer one. just because, if reputaon risk is a real thing, and if gun companies or advocacy groups imsethat kind of reputational risk, isn't it a bankrelator's job to point that out? >> so itmay well be. in bantam books the court says there is a safe harbor for genuinadce about law enforcement. this is not genuine advice about law enforcement.

why would you spend four paragraphs denouncing guns? that has nothing to do th whether there is reputational risk. it has everything to do with what she idin the meeting with lloyds. she was trngto leverage your authority to weaken the nr because she disagreed with his political viewpoints. so yes, reputational risk, if ployed in a content neutral way to adesconduct across the board that raises reputational risk, that is one thing. if you use it, it is a very broad term, if you use it to taet a particular political group because you disagree with its point of view and announced that, you know, in the very document in which you ardoing it, and in the press reasin which, again, andrew omo says i directed her to issue the guidance because dog business with the honore sends the wrg message. that is not creating putational risk. that is, it supports an gazation that i, as governor, disagree with. n disagree with him. he can urge people noto support it, but what he can' do is, again, invoke the

coci power of the state in this way. whether or not there is a reputational risk or not. i don't think, ultimately, it changes the outcome if you' using course of authority. take bantambos. suppose the commission had, instead of sending the police to visit and say, hey, how's it gog? take the books down. he says, we wi send the police to the bookstores i continue to sell these books anlo into code violations. building code violations. and th nd violations of the fourth those against those bookstores. that wod illegal activity. the code viatns illegal. nothing illegitimate about looking into code violations, but if you're doing it to force, coercive power, to a government effort to encourage a third-party to suppress speech it violates the first amendment. >> speaking violations, your friends on the other side

complained ha t made the adequate showing for retaliation claims. how do you distinguish between a bantam books claim like the one you are bringing and taation claim under any other? is it just a pleading choice? >> i n'think that this is a question about whether the score e first amendment was violated by these actions. the other is particular remedy or damages to remedy. we have and injunctive relief claim in th case that continues to be alive. i think that would appropriately requirtang down the guidance letters, whicremain on the new york dfweite to this day, warning businesses not to do business with the nory. we have and injunctive ai thattas it out altogether. i don't think it is appropriate. but if you e in that land at all, th a lowes when case. it says whergovernment officials have adopted an

official policy targeting speech on a matter of coern, public concern for retaliatio that's a straightforward retaliation case. the requiremtsdon't apply. so i think with yourthat or not, this case woulhave to go forward. >> i n'think is appropriate. it wasn ised in the -ed. and they waived -- they don't make the argument, they waive it. nueves and hartman work narrow. this court never extended to the administrative law enforcement context that we have here. i think it would be serious questions about doing at. asked to mount healthy, we clearly made a case. are you have to demonstrate is that, in the rmer case, you have identified they ve

targeted you for some adverse action and did so with bsntial motivating factor of your speech. well, they admiedas much in public statements, as well as private backdoor meetings. we cleay meet mount healthy. would beop to them on a trial to say we have some alternative theories. you will, my friend, advance alternativings. those are open to them at trial. >> anything further? >> on the question of the meaning of coercion, i can think of a spectrum. one end the government official says, look, suppress the speech, and you don't, i have legal weapons i can use against you and will punish you for using those.

that is very clear suppressed coercion. at the other end, the vement official who has no auority to do anything for any practical purpesto the entity that the government ofcial is speaking to says, you shlddo this, it would be a good thg to do, you would be a good citizen if you did it. in between there are a lot of different gradations, particularly when the official who is making this qut has that power. you have to assume the person, or the entity to whom or towhich the request is being made, they know that. ju i am sure these insurance companies are ll aware of the power of vullo.

how do you define what it goes too far? >> i do think the poweof the official over those to whom she is speaking is a relevant factor in the assessment, but the assessment is, atthe end of the day, a reasonablepeon in this situation feels the government is coercing it, that it is plng some sort of threat of action against it. so the mere fact that someone exercises vetory power over you, i don't think that is suicient. but when combined with what you have he, explicit requests to punish a group because of it advocacy, and the invocati the very tools she s to make life mirae for them, you're not managing reputational risk, we might find you -- fine you. we might go after yourpartners and require them to never provide you insurance ever again, this is on the first end of the spectrum that you identified i agree there are hard cases in e ddle, and that is true

with any standard that looks at coercion at the end of the y knowing the context of confessions. there are some hard lines to draw. this one is not. >> the solicitor general urges us not to consider the enforcement actions against lloyd's,locked in and consent decrees and ares that the district court held those actions are entitled to absolutely prosecutorial immediately and the petitioner has not challenged that holding. you want to comment onthat? >> yes, thank yo responde ver asserted absolute immunity with respect to the first amended-- first amendment claims is. it was only asserted with reect to a separate selective enforcement claim. they chose with respect to the

first amendment claims to only assert qualified immunity. it was not asserted below. it was not asserted in the court of peals, it was not raised in the bio, it is not appropriate for this court to decide at this stage. >> thank you. >> justice sotomayor. >> how do we write this case for you and that would differ from how you think the sg wod write it? because justice barrett asked whether you were eang new ground, and you say, i am not. but it seems to me you e trying to in the way you're putting this. there is a lot abt the guidance letters that you agree, standing on their own, would be okay. i am still not sure that the

february 18 meeting, if had not happened, that standing one, that guidance letter is written would necessarilbe coercion. i am not sure the consent decrees could be viewed as selective proseciowhen there is no question, i don't believe, that the key guard had provisions, the insurance pocies, have provisions that violated new yo law. they reimbursed for criminal activity and reimbursed for intentional acts, which new york insurance law cleay ys you can't do. so standing alone, none of these things might be coercive. i see this asin light of the february 18 meeting these things now -- which how the district court heard it. how would you write it differently than the district court. and number two, how would you write fferently than the

sg would? >> i woulwrite it that bantam books holds that when government officials encourage third parties to penalize a speaker because , they cannot use coercion to further th end. here the respondent used coercion. the threat, implicit or exquisite, my friend agrees it could be either, of coercive government action, that is coercion. and here she explicitly threatens that to lloyd's. she said i will go easy on you if you're cutting ties with the nra. that is the same as i will go harden you if you don't cut ties withthe nra. she invoked her authority to punish organizations and financial institutions with spect to failing to manage reputational risk and made it clear that what she meant by manage reputational risk was cut youres wi the nra, and

then she very shortl thereafter announced the consent de with three of the nra's incipal insurance providers in which she not ly punishes them for surance infractions, but imposes an extraordinary ban in perpetuity . esorganizations can never provide affini surance to the nra even if every i dotted. with respect to chugg, she t them to agree not to provide assurance to the nra anywhere in the country, not st in new york but she has jurisdiction out there. when you look at those three, i think under bantam books u have to look at the government's action as a whole.

you see she encouraged third parties, insurance companies and banks. >>yostill haven't told me how you will write it differently. >> the only differencebeeen sg and us is that the sg sa the guidance letters might a clos estion, but they support the allegation that she targeted this group and sought to use coeron and then they say with respect to consent letter, there was absolute immunity. but as i have the discussion with justice alito, they did not assert absolu immunity with respect to thfirst amendment claim. >> thank you. >> justice kagan. justice gorsuch it's. >> we have gone back d forth all morning about the standard. you have a first amendment retaliation clm this case. we often look at retaliation in thtie vii context. the effect it would have a reasonable person ina circumstance. do you see any daylig tween those two standards? >> in terms of defining adverse action? >> right. >> i am not su that there is.

i don't know for this case one has to look very hard to see adverse action when you see a concerted campaign, million- dollar fines, an explicit threat to a major insurance provider, we are going to harden you if you don't cut tieswith the nra. in that context, this is clearly an adverse action under title i, under any language understanding ofth. >> retaliation is a familiar concept in a lot of case law. i'm pointing that out. >> yes. >> there are gray area cases in all of them. >> i think bantam books in retaliation are slightly diffen i think, in the way they conceptualize a first amendment violation. bantam books encouraging a third party to punish speech with coerci. >> can we look at the lloyd's incident in isolation?

i mean, you vea complaint with the motion to disms stage. we have to take inferences in your favor. certainly you don't want to be limited on remand to arguing justthlloyd's incident as your case. >> th'sright. i think right no the most significant harm to the nra is dfs continues to maintain on its website these guidance letters which essentially put a scarlet letter on the nra with respect to every bank and every insurance mpy in new york. though should be taken down. we would urge you, both for purposes of guidance to others, and because it matters to the ultimate remedy in this case, to address the meeting with lloyd's, the guidance letters, and e bsequent enforcement action. the other thing i woulsay about the meeting with lloyd's

is that it was in prive. the nra might have suffered some damages vis-@-vis lloyd's with respect to that meeting, but the real damage in terms of putting the scarlet letter on the nra comes from her public actions and governor cuomo's public actions . i would urge you to addrthe whole picture here, to reinforce bantam books and to reverse on the merits. >> justice kavanaugh. >> quickly, your view on the fourartest that some of the circuits have devepe >> you know, i think it's fine. >> that's about all i need. [ uger ] >> i would just say, as long as the ultimate inquiry is -- has the government engaged in coercion, has invoked its

coercive authority in some way, shape or form. >> what if new yo went to insurance companies and said, we don't want you to continue enri gun manufacturers or sellers? for the same reass, how does the constitutional analysis we? >> that would be a first amenenproblem. >> what would it be? >> it ghbe a second amendment problem, i dot know. i am not sure it would. if the government coercion is focuseonconduct rather than speech, that it is not a first amendment issue. >> my la question, on bantam book is is a little bit unusual cause the government is not going to a communications company, a bookstore, social di company, to say to take down thatspch, but it is going to an insunccompany. i guess i take your point that bantam books, as long as the ultimate action is against speech, it doesn'maer that the intermedia is not,

itself, a speech busine. >> i think he is the use ofthe third party to punish the target. for example, in bantam books, if they said we will encourage those providers insurance to bookstores to stop providing insurance, that wouldn't be a speech intermediary, but it would be the sa problem. >> justice barrett. >> i ntto give you a chance, . cole, to address the arguments we ou not reach the merits because we lack jurisdiction because we denied the qualified muty question. they also say the claim for injunction is no longer the case becae u didn't cross- appeal it. >> anyou. this court did not divest self of jurisdiction when it granted the case and ked for briefing on only one of e two questions presented. if the courrerses on the first amendment grnd it would be totally appropriate to send it ck to the second circuit to reconsiderth qualified immunity question, which is, as threspondent herself argued in the second circuit, inextricably intertwined with the met

determination. the court assessment of e merits here isbasically to disregard what happened at lloyd's. is adopting every inference in far of vullo anagainst the nra with respect to th guidance letters. all ofthat. the court has jurisdiction over the case. it can reverse on the question it took up and can ask -- >> what about the injunction? >> as for e injunction, there was no final order. there is no fil judgment. so we have the right to appeal that. we will appeal that when there is a final judgment. this was an interlocking tour appeal fr a qualified immunity only. we have no obligation to os appeal. >> justice jackson. >> justice kavaugpicked up on what might be a critical distinction. i am trying to understand it. he said, here we have a situation in which the government is not acting on a company that is itself in the

siness of speech, which is true unlike baambooks where was. what i'm worried about your position ultimately reducing to any time a regulator enforces the law against an tity that does business with an advocacy organization we have a first amendment violation. it seems like your answer to him was, well, what gets this in the first amendment column, unlike other scenarios, is that the nra advocates for guns, d is an advocacy organization, and so acti taken against it makes a first amendment violation, even though the government was not coercing the speech itself in the same way as bantam books. how do we avoid a rlin which advocacy organizations are exempt from regulations? >> we're definitely not asking for advocacy organization

exemptions from regulaonor even for regulation of third parties. what bantam books requires is that the government encourage third parties to punish speech. once they have done that -- >> but forgive me, it is not punishing speech. it is ceorg speech. >> no, it is true in bantam bookitwas about censoring speech, but again, that >> why is it that lent? justice gorsh ggests you might have retaliation claim, whicisa kind of first amendment, a species first amendment. you allege it in this case. that makes perfect sense. they are punishing me because of my speech. that is retaliation. censorship is differen what i am suggesting is that bantam books is, bacay, a censorship case. what they are dog forcing these companies to take down or remove speech the government objects to.

i don't quite see that happening here, as opposed to the other theory atyou do allege, which , th don't like what we do, and th are using the levers of government to prevent us from operating. >> yeah, and ifthere were a distinction in thfit amendment between censorship anbuening speech because of its content, then maybe th would be correct. but there is no such distinction. the first amendment requir strict scrutiny when the government censors speech beuse it doesn't like it's content, when it burdens ee because it doesn't like its ntent. in this case, it sought to burden rather than sensor but that doesn't, in any way, alter the logic of nt books, the way bantam books has been pld for 60 years. it has been applied consistently to situations in which government officials -- >> i have never seen any other situation like this. all the other bantam books situations are censorship. >> i don't think so, with all

due respect. backpage, thsenth circuit decision, is very simila it was a sheriff who didn't like what a particular social media platform was doing, and what he did was encourage credit card companies not to do business with that platform. >> all right. thank you. >> he did it through course of means. >> thank you, counl. >> may it please the court, government officials may criticize private speech that ey deem harmful and persuasive, the government officials may not threaten take adverse action against private rts to coerce those parties into penalizi a disfavored speaker. taking petitioner allegations

istrue, that is what respondent says here. in the oys meeting she especially threatened to bring enforcement action against lloyd's unless lloyd's to cease providing insurance to gun groups, especially the a." the court should find a strahtforward first amendment violation under bantam books , but in recognizing the first amendment claims here, e court should take care to avoid suggesting any new limits on the government's ily to speak to the public or its ability to provide ordinary legal guidance to regute entities. i welcome the court's queson >> could the government, rather than coerce a third rty, simply entice them to reach the same suppression, do the exact same thing and ppss speech? but it depends what you mean by entice. if it doesn't rise to e level of significant encouragement. what's the difference by >> bloom requires that significant encouragement essentially overwhelmed the dgment of the independent intermediary. >> what would th ok like? in this case? >> in this case, i think you can kind of think the offer leniency that vullo made to

lloyd's as either a form of significant encouragement, we will go easy on you r legal violations, or as a threat, basically saying, we will bring these enforcenactions against you if you do not stop doing business with gun groups. so convsi and significant encouragement are two sides of the same coin. >> counsel, this ovlap with the first case, could you articulate with the significant differences are beeeyour position in this case and the position in the prior case? >> there are no differences as to legal principles. the differcehere is that there is a specific coercive threat, particularly in the lloyd's meeting whe e threatened adverse action in the form an enforcement action so that lloyd's uld comply with the specific instruioto cut ties with all the gun groups, especially the nra. and murphy, the plaintiffs did not identify aninance in which government officials

threatened to take adverse action against a ci media company to get the company to engage in specific content moderation. they just want to generic references to legislative reforms that were untethered from any content moderation. >> are you focusing on the spifity of the government action or what? >> and murphy there was no re at all. no threat of adverse action at all. there talked about legislative reforms,bunot connected to any specific instructions. ercion, in our view, requires a threat of adverse action connected to a specific instruction such that it is a, if you don't do we will do y to u. that is not in the record and murphy. it is in the record here with respect to the lloyd's meeting a paicar. >> does that mean that the new york officials could have achieved wh ey wanted to achieve if they had not done in such a m-handed manner? so instead of having the meeting with lloyd's , they just gave eeches about guns

and how bad the nra is, and they spoke about social backlash againsgu and those who advocate for gun rights in the wake of the terrible pa when shooting. but in all of that the don't mention anything about regulatory authority. and then, after harping on that, they ke general statements about the importance of er insurance company taking into account reputational risk, and then they sit back and see whether that achieves the desired result. basicay,that is what your position is, isn't it? >> no, your honor. if wh ey did was what i outline, wiouthe violation of bantam books? >> probably no cause they would be an attenuation between the invocation of legal consequences and the

instructn message. but we think the first four paragraphs of the guidance letter standing alone are permissible government speech, because those paragraphs involve criticisms of the nra and urging irparties that the support the an array. that is the classic form of government speech that falls within long-standing traditio president reagan expressly criticize the and urged tizens not to support or associate with the . that is what the firsfo paragraphs are doing. >> well, it some other format, itwould be a different matter. but this is a guidance letter. >> i take the pot. >> you understand what a idce letter is about. >> take the point the fa it is in a guidance letter is highly unusual. he would >> seth in an op-ed or press conference. that is a factor, i think, going to the implicit coercive analysis. but without the fifth paragraph, there is no dication of an adverse action at all. thfit four paragraphs standing alone, although unua would still be permissible government speech. >>th gilded the lily,

whatever the phrases. ey were ham-handed about this. if you do it in a more sophtited manner, you can achieve what you want to achieve. >> i don't know, justice alito. i don't know that surance companies and banks with feel there will was overboard and they were really at risk of expensing evers action in a hypothetical. that's the question. are the parties able to exercise her own independent judgment? >> seriously? you think sophisticated insurance companies are not taking intoacunt adverse risks? they probably have heard abou the part that shooting and the aftermath. u ink they had not already taken this into cot? didn't they already know all e power that vullo had over them? >> eyknew about the authority, but without incaon of that authority and tying it to a specif instruction like we have in the guidance letters, i don't think

we would get tocoercion. >> you agree, though, the fih paragraph changes the calculus? >> yes, urhonor. but i want to make itclear. we think this has to be considered alongside the press release and e eet. we think it is one unit of governmental communication. we would not okat the guidance letters alone. we would look at the guidance letters particularly as a way to reinforce the allegations out the lloyd's meeting rather than considering the guidance letters as a standalone matter. >> go ahead. >> just official. do you view this as justice barrett asked as a cleat case under existing law? >> yes, yo nor. especially with the lloyd's meeting, solutely. >> wiry so concerned about only looking at the guidance letters in combination with everything else? what would be wrong with looking e guidance letters alone given that there is th fifth paragraph? >> the fifth paragraph take you pretty far. we're not saying it would be

impossible to conclude that would be a threat alone, but this s e unit of government communication. was in the same 24 hour period. they were l scussing the same thing. i think the esrelease is measurably more explicit. it urges businesses to join the companies wod' already discontinued their arrangements with the nra antotake prompt actions to manage their ris. it is pointing back to the risk- management obligations from the guidance letter and puttinit into one sentence to make it very clear. and the cuomo too says the nr is an extremist organization and needs coans to revisit any ties i have to thnra and consider the repetitions. the broader concern is that if the court were to focus on th guidance letter alone, it could allow plaintiffs to try to cobble together firsamendment claims like pointing to statemen government speech and connect them to invocations of legal obligations. obviously, it is easier here because it is in one document, t that is the broader concern. these aralso unusual documents. the guidance letters. is hard to interpret them in isolation because it is very odd to see this government speech in a guidance document.

>> if this casegoes back for trial, do you claim that the guidance letters and the enforcement actions would no be relevant and admissible? >> no, yo honor. we think the guidance letters would be relevant. they reinforced the plausili. >> okay, what about the consent decrees and foement actions on the consent decrees by >> the distctcourt did hold that she was a title for absolute immunity for those. we also think they were targeting conduct, beusthey appear to have been based on violations of. insurance law. we'll see free-speech concern dependently. but i think the lloyd's consent deee could bear on the plausibility of the allegaon with respect to the meeting in the following way. there is a term in the oyd's consent decree that probably bansth from even doing lawful business with the nra. that shed light on the plausibility of the allegation that come in the mein vullo was kind -- trying to that >> has is court ever felt th

every federal and state officer who is the head of an executive department or the head ofan independenrelatory agcy with enforcement powers has absolu munity? >> no, your honor. but this -- thholding of the district court was the was exercising prosecutorial function with respect to the enforcement action. but have we ever held that all of those officials have absolute prosecutorial immunity? >> no, yo honor. we are not taking a position of -- on the immunity question. >> i alrey previewed what my question would be. how do you see them writing the opinion and how do you want it and tell me what the differences are? >> so the first order of preference is, as i said, to e the guidance letters as a way to reinrcthe

plausibility of the allegations about e lloyd's meeting into hinge the first amendment analysis on the lloyd's meeting. that an explicit threat. it is a straightforward way of resolving this case. as i said, the guidance letters reinforce the plausibility of those allegations. the guidance letters were sent, not only to insurance companies, but also to bank there is no suggestion that the nra was doing unlawful business with banks. of course, the guidance letters also expressly urged insurance companies nks to cut all ties with the nra, just the lawful business. those aspects of the guidance letters reinforce the allegation that in the lloyd's meeting she was trying coerce lloyd's to stop all this business with groups, not just to target laul conduct. >> justice kagan. juste rsuch. justice barrett. >> just one quick clarification. you say the lloyd's meeting is an explicit threat. let sathey stay the claim. what's next in terms approved?

don't they veto show something about her motivation? >> justice jackson, that guest is something mr. cole was talk about. there are two aspes this play. there is a coercion question , and that there is a first amendment harm question. here the firsendment harm is based on viewpoint discrimination. so yes, they would have to show that she was motivated by the rging of a particular viewpoint as opposed to the targeting of conduct. we think the complaint alles that what her motive was. page 223 says it will x pleasantly. she was engangin this threat in orr to get lloyd's to aid the dfs ca against gun groups. there is a focus on the speech aspect of the nra as opposed to any conduct . >>thank you. >> thank you counsel. >> thank you, may it please the court. the kefactor in this case is the conceited illegal conduct,

as justice soto mayor said, th three insurers and the nra oke the law. they were selling intentional crimin act insurance and all of the products they offere were unlawful because the nra resed to get a license. that is why bantam bookis miles away from this case. it is why the court below found qualified immunity protects vullo. in this posture, between the coercion inserted into th obvious explanation that she was enforcing thla is coercion plausible? when illegal action present, the plausibility burden higher to use the phrase by mr. cole, the government is more likely responding conduct, not speech, in four separate dorines that explain why. first, plausibility rules are "especially important in suits were government defendants assert qualified immunity because they must be neither deterred r distracted from virous performance by disruptive discovery." second, the peepon of regularity. third, absolu

immunity protects enforcement actions. and forth, causation is more difficult. that is particully so after parkland, which led many businesses that ms. vullo has no control over to sever ties with the nra. for this court to acce this complaint in the teeth of the conceited illegal conduct, it would empower stke suits to enjoin valid enforcement and open sensitive discovery. that is why the court' traditional test here is right. thgovernment official crosses the line from coercion to persuasion when they are threatening as opposed to encouraging, and there is no objectively asonable basis for their action. the nra can meet that test. that is why they are seeking weaponizing first amendment and empt themselves from the rules that govern you and simply because they are a controversial speaker. i welcome the court's questions. >> would you spend just a small amount of time explaining why you think the conduct, all of this, is fected by the one

illegal insurance frauact involved here? >> so, justice thomas, our position and the position of ms. llo throughout has been that it is all illegal. the attachments to the complaint attached the consent orders, whicmakes that clear. the nra never got a cee for all of the affinity products. i know the word lawful insurance product in the complaint, they never idenfi in the complaint we spent a huge amount of time of this and call them out. to this day, they haven't explained one lawful product that was ever issued by the three insurers. that is why, if you're asking yourself, is there an obvious likely explanation fowhat is going on? that is what it is. that is y the consent orders -- >> soy. these affinity programs could have be altered. these consent disagrees and wh she was seeking was a ban,

even a potentially lawful fity programsif they had taken out the intentionality provision or the criminal activity provision, and just insured for accidents with guns or things like that, the would have been lawful. so she we further and said, you can't even have-- >> dfs and regulators do that all the time. there are two buckets of illegal activity, serious illel activity that ms. vullo olated atissue in the consort -- consent orrs biting. what is the provision of intentional act insurance that violates publ policy, in new york in almost every state. second, the fact that the nra was doing all of these affinity produc without a license. just without a license alone, dfs routinely imposes massive sanctions, including lifetime bans.

metlife did the same thing, feng unlicensed insurance with a partner, lifetime banter lifetime bans are not unusual. to happen all the time. it is a securities regulation. what normally happens justice sotomayer, if the nra ever decided they wanted to get a license, and offer unlawful an, there will come back and seek a modificati of the consent order. but there is nothg unusual, whatsoever, about a punishment like this. what is unusual is to allow a strike suit like this. remember, this casewas filed during the investigation, y of 2018, in order to stop her from going forward. the consent orders then happened. so now they're here trying to effeively undo that enforcement action. the worry here, it is not just about this case, it is about any case. everyone can allege, you ow, can stop a plea negotiation or

consent set of negotiations by saying, you arretaliating against me. if you just think abt what dinesh d'souza said publicly in his filings or michael avenatti , i am being retaliated against because of me, because my speech. that is a danger. that is why there has always be an objective on reasonability standard. mr. le says in his brief on page 23 , don't worry, the nra will never do this. we've on filed the one seated on bantam books beforein our history. that is wrong. in five minutes of research, we found another case, the nra suit against san francisco on exactly that theo. if you look at his briefs, at least 10 of them and me they want to do this to open up wsuits for when chick-fil-a and think stash >>th answers my question. >> what you do abt your friends argument that you waive this, not raising interest or court or the court of appeals or in the brief in opposition? >> a couple of waiver arguments

. the absolute immunity. >> i'm sorry. on absolute immunity, i don't think we waved . first of all, everything i just said before doesn't turn on absoteimmunity are not. i am explaining why this wasn't coercive. what happen either the lloyd's meeting or consent orders. now, we do think there's a parate argument about absolute immunity. there is asod to reach it. it was ventilatedowbelow. i think it is squarely before this court. years with the district court said. the decision to enter to the consent orde d their precise terms are all entitled to absolute immunity because they are prosecutorial actions premised on enforcement decisions intimately associated with the judicial process. we raise that in the selective enrcent claim, but not in the first amendment one.

but there is good reason for at at that point in the district cot,there first amendment claims were focused entirely, almost entirely, on the letters and the press release,d absolute immunity were not claiming attended to those acts. we are saying it displays what happened in the consent orders and in the lld'meeting. >> mr. katyal, it is a bit jarring, i guess, for me that the solicitor general on the other sidefr you in this case, gin the solicitor genel represents the united states, and as we know fr the last case, has a very stro interest in not expanding bantam books. sohow should we think about that? >> i think, i don't want to characterize their motivations or anything, i just think, ultimately, their test is not different than our test. we are all basically in agreement that, for example, the second circuit got it right. government officials cannot use their regular tory powers to coerce individuals or entities

and to refrain from protected eech. >> are you okay with that test? >> absolutely. fine with that. i think the dierce is that we do have to insi on an objective reasonability when u are dealing with enforcement actions. the sendprong i started with. because otherwise, you're opening the door, as nieves points out, anyone would be incentivized if they are the taetof an investigation to say that they are beg retaliated against. you need to show objecte reasonability. it is here where the ai fall apart. they were doing massively illegal things. new york enforces that all the time. if there complaint pled something like jaywalking and said, you are t enforcing it except against us, that stat a claim. that is not this complaint. >> i'm sorry. just a follow-up on the original question. it seems like we're all in agreement that the law here is clearly established under

bantam books. it is just a maer of application. is that right? >> i certainly think the law is clrly established in terms of what i read to yofrom the second circuit standard. >> okay. >> yes. the concern is, without an objective reasonability test, you open e or to people filing strike suits against enforcement actions all the time. i guess they ensay, okay, it is nothe meeting with lloyd's or the nst orders themselves, you have to read that in light of the guidance letters . absolutely you should look at them altogether, as the solicitor general says. >> they do say the meeting itself is enough. >> yeahifthat meeting is enough, juste kavanaugh, every plea negotiation is enou. that is literally what they argue. ey are done in secret and behind closed doors, use their insidious language. that is the tural give-and- take. what vullo said, according to

their own allegations, we have t some goods on you, and we e lling to look past some in order to make a resolution here. there is nothing that ties that give-and-take in the complain certainly not plausibly so. it doesn't titothe feelings about the nra. the way, the tweets that my frie has been referring to from governor cuomo aren'tev in the complaint. they were issued mont after the complaint was even filed. i think it is very naturathat in the meeting about resolving these issues you're going to say,lo, i will look past some issues in ordeto strike a resolution. that is all that is. >> can i just ask you about the standards again? suppose i agree withyou that illegality was sort of at the heart of what was going on here, that all of the products were illegal. let's assume i agth you for second on that. esn't that go less to version

-- coercion then the next on, whether or not that coercion of a third party affeeda violation of the first amendment? business was illegal doesn't necessarily mean the february meeting wasn't coercive. that the vement action enforcing the law is coercive. is an address that she has a good defense to the argument thatthere is a problem here une first amendment? >> i agree with almost everything except your last sentce coercion by itself is not illegal. the government coerces all the me in plea negotiations of bringing criminal charand the like. what makes it illegal is you are retaliating against someone's speech. it is that where complaint -- >> you can see thin this case? if she was coerthem under the circumstances, itwas >> no. tio

we think it waan exercise of legitimate law enforc we think they're absolutely fine to bring a laint that has some direct evidence that says, oh no, this is not a prosecution that would ordinarily bebrought. this is, rather, a selective targeting of me. >> that is the summary judgment stage. >> indeed, the selective enforcement claim was thwn out. our point to you is -- >> we're going to take you live now to capitol hill for hearing with homeland security secretary he was testifying a day after the senate voted to dismiss articles of impeachment against him and in relation to his handling of the southern border. you are watching live coverage.