>>he u.s. supreme court heard oral argument in nra, case on whether former new york regulator violated the natiol rifle association's free-speech gh by threatening companies that do business with them. the former superintendent of the department of financial services instated the nra endorsed insurance program. the inveigion concluded it violated state law. the nra filed suit, arguing the access violated its first amendment right to protected speech as a gun rights organization. the supreme court has through june 2024 to issue a ruling. chief justice roberts: we'll hear argument next in case 22-842, national rifle association versus vullo. . cole.

>> mr. chief justice, and may it please the court: government officials are free to urge ople not to support political groups they oppose. what they cann dis use their regulatory might to add "or else" to that request. respondent vullo did just that. not content to rely on the force of her ideas, she abused the ercive power of her office. in fruy 2018, she told lloyd's, the insurance underwriter, that she'd go easy its unrelated insurance violations if it aided her campaign to weakenhera by halting all business with the group. lloyd'agreed.

six weeks later, she issued guidance letters and a press release reing thousands of banks and insurance companies that she direcy oversees to cut off their ties with the nra not becau oany alleged illegality but because they promote guns. in the accompanying press relee,ullo's boss and co-defendant, governor andrew cuomo, said he directed vullo to issue the guidanceecse doing business with the nra "sends the wrong message." shortly thereafter, vullo extracted legally binding coenorders from the nra's three principal insurance providers, barring them from ever providing affiny insurance to the group ever again, no matter how lawfull they do so. these actions worked as multiple financial institutions refused to do business with the a, citing vullo's threats. this was not about enforcing insurance law or me vernment speech. it was a campaign by the state's highespotical officials to use their power to coerce a boycottf political advocacy organization because they disagreed with s advocacy. governor cuomo essentially nced as much in two tweets responding to this lauit in which he said, and i quote, "the regulaonnew york put in place are working. we're forcing the nra into financial jeopardy.

weo't stop until we shut them down. it's time to put the gun lobby out of business. hashtag, bankrupt thnr" at the motion to dismiss stage, the only question is whether these allegatis,aken as a whole, plausibly plead a first amendment ai because vullo chose coercion over persuasion, they do. i welcome the court's questions. justice thomas: mr. cole, what is the speech here, protected speech, that you alle s been sureed? mr. cole: promoting guns, advocating for gun rights, sending the wrong message. it is -- is that --it was --it's precisely the speech of the nra whh caused vullo and cuomo to decide to target their partners and seek to coerce them into boycotting the nra. ty are seeking to penalize the nra because of its speech advocating for gun rights. ste thomas:

so your argument is that the sanctions on a third pty suppress the speech of nra? mr. cole: yeah, it doesn't --your honor, it ds't --the court's first amendment jurisprudence does n ruire proof of suppression. it requires proof of burden. ifullo had imposed a $1 fine on the nra for promoting guns, it would be unquestionably unconstuonal even though it wouldn't actually suppress their spch but, here, we have actually led -- and this is at the motion to dismiss stage, t allegations are true that the allegations have cost the nra llions of dollars as a result of the kinds of coeronhat has been put in place here and that the nra, like any other advocacy group, li on banks, relies on insurance companies to be able to do their business. and what is their business? political advocacy. justice jackson: isn't the issue of coercion different, though, than the first amendment question? mean, you are relying on, i

think, bantam books, is at correct? mr. cole: yes. justice jackson: as i read that case, there were really two different things going on. there was an uonitutional prior restraint, and the court recognized that. anthe was the implementation of that unconstitutional restraint through the means government coercion. so, if i'm right about that in rmof how we should be thinking about bantam books, then don't we have two different questions here, the firsbeg did vullo actually coerce any regulated entities to do something vis-a-vis the nra, and then was that something a violation of e nra's first amendment rights, say, through retaliation or censorship, which are the two first amenentheories that i pick up from your complaint? mr. cole: yeah. justice jackson, i think what bantam books stands for is that

government officials are free to encourage people to take down speech or to pale a group. what they are not free to do is to use coercn that end. here, there's no questioon this record that they encouraged people to punish t n precisely because and only because of itsolical views. justice jackson: no, i understand tt,ut -- mr. cole: so the question is, is there coercion? that's the whe justice jackson: no, no, but --but --but --but there are two different pieces, right? you have to show that there' coercion, and you alleged that, but you also have to show that that coercion resulted in a rst amendment violation. bantam books is saying you can't do indirectly wh y can't --right, what you can't do directly. but e rect thing in bantam books was a prior restraint. th here doesn't look like a prior restraint. so what is your --this is sort of justice thos's question again, right? what is your theory of t fst amendment? mr. cole: again, it's the same answer as to juscehomas. the first amendment --of course, the first enent prohibits absolute censorship or suppssn of speech, but it also prohibits the imposition of

y rden on speech because of its content. even if the government denies a contract to an entity becae saroves of what that entity says. justice jackson: right, but isn't the hard part figuring out whhethe burden is being imposed because of the content of the speh because of the conduct? that's why we have to be really careful about what you're allegings e first amendment problem because the government can regulate conduct, correct? . le: i agree. and if this was a case in whh the government had said, you know, the nra is violati t law left and right and we have to respond to th a here are the legal obligations, that would benehing. that is not what they said. they said we want to shut the nra do, want to put the gun lobby out of business. why? the title of the guidance tters that she issues are guidance regarding therand other gun promotion organizations. the whole guidance is saying, i don'li the fact that people

use guns. i don't like the fact that peledvocate for the use of guns. nd to stop this. we need to stop this now. juice jackson: isn't that her motivation? understand, that sounds to me more like a retaliation ndf first amendment theory, as opposed to somethi tt's happening in bantam books, which is pressure inapplied to actualnties that themselves are speech distributors so that those entities are censori t spch as in their power because they are the kinds of things -- ey are book distributors or et te. these are insurance companies who are being pressured, and so it's at least attenuad in that sense, the impt speech, correct? mr. cole: so, if the govnmt were providing insurance, it had a contract with -- let's say it provid se sort of insurance to advocacy organizations, and it said we'll give insurance to some, but we're not going to give it to advocacy organizations that disagree with usnd that, for example,

promote guns, that would ba clear violation of the first amendment. it would not be censorship. it would not be suppression. but it would be a penalty imposed because of the viewpoint expressed byherganization. in this case, maria vullo herself and governor cuomo mad it absolutely clear both in cledoor meetings with lloyd's and in public guidan leers and in tweets about this case that they were singli o the nra not for insurance law violations; eyere singling out the nra beuse it promoted guns, and they were against the promotion of guns. theyandvocate against the promotion of guns. they can encourage people not to support grps that like the nra. what they can't do is then invoke the coercive authory of her office. and look at the guidance letters. she could have written aopd if she was moved by the problems of gun violence, but she didn't.

she invoked her statutory authority, uqustatutory authority, to issue guidance letters. at are guidance letters? according to respondent, they are designed to tell regulated entities the oigations. then, in that guidance letter, what she does is go on for four paragrap aut how bad guns are and then, in the fifth paragrh,ays, in light of the above, we urge you to reconsider your relations with the nra d other gun promotion organizations, no evidence that any other gun promotion organizations are involved in any insurance illegality or anything, and reconsider your risks and manage those risks, take prompt acon. and then she issues a press release that same day in which she says, cut your ties. justice barrett: mr. cole - mr. cole: --in order to manage your risk. justice barrett: --can i ask you a question? are you asking the court to break any new ground in this case? . cole: absolutely not. this is about as square corners a bantam books case as you can imagin justice barrett: how does your understanding of bantam books diff iat all from reondent's and from the sg's? mr. cole: so the sg, as you'll

note, is essentially oouside in this case, formerly in support of neith pty but taking our time because they're supporting reversal on the merits queio we belvehat you do have to demonstrate coercion. yoha to demonstrate some coercive threat, some invocation of regulatory adversacon. we have that here. we have it with thensance law enforcement. we have it witthinvocation of reputatnarisk. reputational risk, she didn't just say, you know, guns are ba y should reconsider your relation with the nra. she said guns are bad, you should reconsider urelations with the nra because it's a reputational risk if you don' justice kagan: but that idea of retational risk, mr. cole, that is a real idea. it wasn't invented f t nra. there is a view that bank regulators have that companies arsupposed to look at their

reputational risks. so how do we know, i mean, there is obviously a lot about gs that letter. t it might be that gun advocacy groups, gun companies do impose reputaon risks of the kind that bank regulators are concerned about. so h do we know? mr. cole: so i don't think --i don'thk you actually have to make that decision, justice kagan. the questi uer bantam books, there's two elements to bantam books. did the government urge third parties to penizor suppress speech, one, and two, did they use coercion to effectua tt encouragement. and the invocatioof reputational risk is the use o coercion. whether or not it is, in fact, a reputational risk or not, it is still the usofhe coercive authority of the state to encouragthe entities to pushhe nra because of its

speech, to cut their ties. that's number one. number two, look at the lld's meeting. there's no discussion about justice kagan: so i --i put the reputational risk there. justice kagan: so i --i p the lloyd's meeting in a different category and was reallmo interested in --in --i think that this is a closer one just because if --if if --reputational risk is a real thing, and if gun companies or gun advocacyros impose that kind of reputational risk, isn't it a bank gutor's job to pot at out? mr. cole: imay well be. and in bantam books, the court says that there's a safe harbor for genuine advice about --about law enforcement. this wano genuine advice about law enforcement. y would she spend four paragraphsyoknow, denouncing guns? that actually has nothing to do with whether there's reputaon risk. that has everything to do with what she sa in the meeting with lloyd's

she was trying to do: levege her authority to weaken the nra because she disagreed with its political viewin. so, yes, reputational risk, if it was employed in a content-utl way to --to address conduct across the board ataises reputational risk, that's one thing. if y u it --it's a very broad term. if you use it to target a partila political group because you disagree with its point of view and you announce tt,ou know, in your --in the very document in which y're doing it and in the press release in which, again, andrew cuomo says, i dicted her to issue the guidance because doing buses with the nra sends the wrong message, that is n cates reputational risk. that is it --it supports an organization that i as governor disagree with. he can disagree with it. he can urge people not to support it. what he can't is, again, invoke the coercive power of the state in this way. and whether or not the ia reputational risk n i don't think ultimately changes the outcome if you're using coercive authority. takbaam books. suppose in bantam books the --the commsi had, instead of

say, hey, how's it going, have you kethe books down, they said, we're going to send t police to the bookstores that ntinue to sell these books and look into code violations, building code violations, and they, in fact, foundod violations, and they enforced those code violations against those bostes. that would be a legal activity. the code violaonis a legal tity. there's nothing illegitimate about lookingnt code violations. but, if y're doing it to give force, give coercive power to a vement effort to encourage a third party to suppress speech, it violates the first amendment. justice barrett: mr. cole, speakingf olations, your friends on the other side complain that you haven't made the adua showing for a retaliation claim. so how do you diinish between a bantam

books claim like the one tha y're bringing and a retaliation claim under nieves? and is it just a pleading choice, or dyowant to say a little bit more about that? mr. cole: don't think the nieves question is here at all because this is a eson about whether the first amendment, the scope of the first amendment, was violat bthese actions. nieves is about -- y know, is about section 1983, where there's a particular remedy, a particular damages remed we have an injunctive relief claim in this case which continues to be li a which would, i think, appropriately require taking down the guidance letters, which remain on the new york dfs website to this day warninbunesses not to do business with the nra. so we ven injunctive claim. that takes it out altogether. so don't think it's appropriate, butf u're in

nieves land at all, this is a lozman case. this is a case where, remember, loan says where the -- where the --where government offia have adopted an official policy of targeting speech on mter of concern, public concern for retaliation, th's a straightforward retaliation casemthealthy. the requirements in nieves heritage reporting corporation don't apply. i think whether you're in nieves land ono this case would ha to go forward. but i don'think it's appropriate --it wasn'raed -- discussed below, wasn't raised in the op, anth waive nieves. they don't real me a nieves argument. they waive a nveargument. and then, finally, i would say th court --nieves and hartman were identified as narrow

exceptions to the mt. healthy rule for particular crin contexts. this court has never extended it to the administrative law eorcement context that we have here, and i think there would be very serious esons about --about doing th. and as to mt. healthy, we've clearly made out a case. all you have to demonstrate is that, as justice alito was saying in the former case, that you have identified that theyav targeted you for some adverse action and that the --they did so, the substantial motivating factor was your speech. well, they' admitted as much in public statements, as well as private back door meetings. so wclrly meet mt. healthy. and it would be open to them on --on --at trial to say, well, we have somalrnative theories. you'll hear my friend advance some various alternative theories. the e open to them at trial. chief justice roberts: thank u, counsel. mr. cole: but this is a motion to dismiss. chief justice roberts: justice thom, ything further? justice alito? justice alito:

on the question of the meaning ofoercion, i can think of a --of a spectrum, and on one d of the spectrum, a government official says, look, suppress this speech and, if you don't do it, i have legal weapons i can use against you and i'm going to punish you using those. that's very clear suppression , coercion. at the other end, the --the government official who has no authority to do anytngor any practical purposes to the entity that the government official is speaking to says you should do this. it would be a good thing to do, you'd be a gd citizen if you did it. and in between, there are a lot of different gradations, particularly when the official w's making this request has that power and you have to assume that the person or the entity to whom or to which the request is being madkns that, just as i --i am sure that these insurance mpies were well aware of the power of ms. vullo. so how do you define when it goes too far along that line?

mr. cole: so i do think that the wer of the official over those to whom she is speaking a relevant factor in the assessment, but the assessnt is, at the end of the day, would a reasonable psoin these --in this situation feel that the government is coercing it, that iismplying some sort of threat of action against it, of adverse action against it. so the mere fact that someone exercises regulatory power over you i don't think is sufficient, but when combined wi wt you have here, explicit requests to a group because of its advocacy anthinvocation of the very toolshhas to make life miserable for them, you're n managing reputational risk, we ghfine you, or, you know, you've got these technic insurance infractions, we might go after your partnersnd-and require them to never provide you affinity insurance ever again, this is on th-- you know, the first end of the spectrum that you identified, justicalo. so i agree there are hard cases inheiddle, and that's true with any standard that at end of the day looks at coercion. in the context of confessions,

coerced confessions, there are some hard lines to draw. this one is not. justice alito: okay. the --the solicitogeral urges us not to consider the enforcement actions against lloyd's, lockton, and chubb's and the consent decrees, and it gu that the district court held that those actionsrentitled to absolute prosecutorial immunity, and tioner has not challenged that holding here. do you want to comntn that? mr. cole: respondent never asserted absolute immunity with respect to the bantam books. thfirst amendment claims in this case. sote immunity was only asserted with respect to aepate selective enforcement claim. they chose, with respect to the first amendment claims, to only assert qualified immunity. that's number one. so it was not asserted below. it was not asserted in the court of appeals.

it was not raised in the bio. it's not appropriate for this court to decide at this stage. justice alo:thank you. chief justice sotomayor: tell me how --and i'm going to ask the sg this questio--w do we write this case for you and that would differ frohothe --you think the sg would write it? because juste rrett asked you whether you were breaking new ground, and you say i'm not. but it seems to me you' ting to in the way you're putting this. there ia lot about the guidance letters that you agree standing othr own would be ok. i'm still not sure that if the february 18th meeting had t happened, that standing alone, that guidance letteras written, would necessarily be coercion. i'm not sure the consent decrees could be viewed as selective prosecution when there is no eson, i don't believe, that the carry guard had provisions, the carry guard insurance

policies, had provisions that violated new york law. they reimbursed for criminal activity and they reimbursed for intentionaac, which new york insurance law clearly says you c't do. standing alone, none of these things might be coercive. i s this as in light of the february 18th meeting, these things now, which is how the distctrote it. so how would you write it differently than the district court did, nbeone? and, number two, how would you it it differently than the s would? mr. cole: i would write that bantam books holdshawhen government officials encouge third parties to penalize a speaker because of itsie, they cannot use coercion to further that end. here, respondent usecocion.

the threat, implicit or explicit --and my friend agrees they can be implicit or explicitf coercive government action. --that's coercion. and, here, she explicit teatened that to lloyd' she said, i'll go easy on you if yocuyour ties with the nra. that's the same as i'll go hard you if you don't cut your ties with the nra. she invoked her authority to punish organizations and financial institutions with respect to failing to manage reputaon risk and made it clear that what she meant by ane reputational risk" was cut your ties with the nra. and enhe very shortly thereafter announced these consent orders with three of the nra's principal insurance provids which she not only pushes them for insurance infractions but imposes an traordinary ban, a lifetime

ban, in perpetuity. esorganizations can never provide affinity insurance to the nr en if every t is crossed and every i is dotted under new york law. and withesct to chubb, one of the three, she got them to agree not to provide insurance to the nra anywhe the country, not jt new york. she has no jurisdiction out there. so ihi, when you look at those under bantam books, you have to look at --the governn's action as a whole, you see that she encouraged third parties, insurance companies and banks. justice sotomayor: you still han't told me how you're going to write it diertly than the sg. mr. cole: the only --i think the only difference twn the sg

and us is the sg says the guidance letters might be a closer question, but they ort the allegation that she targeted this group and sought to use coercion. anthen they say, with respect to the consent letter, there was absolute immunity. but as i had the discussion with justice alito, they didn't asse aolute immunity with respect to the first amendment aithat comes out of the consent letter. chf stice roberts: justice kagan? justice gorsu? stice -- justice gorsuch: we've gone back and fthll morning about the standard. but you've got a first amendment taliation claim in this case. and we often look at retaliation in the title vii context iju the manner you described, the effectt uld have on a reasonable person in this

circumstance. do you see any daylight really between those two standards? mr. cole: in terms of defining what constitutes -- justice gorsuch: yeah. mr. cole: --an adversacon? justice gorsuch: rit. i'm nosu that there is. i d't know that for this case one has to look very hard to see adverse action wheyo see a concerted campaign, million-dollar fines, an explicit threat to a major insurance provider, we're going to go hard on you if you don't cut your ties with the nra. inhat context, this is clearly an adverse action under title vii, under any english-language undersndg of adverse action. justice gorsuch: retaliation is faliar concept in --in a lot of our case law, is all i'm tryingo int. out here.

and they he gy area cases, all of them. mr. cole: and i think you --i think, you know, bantam books and retaliation are slightly different, i think, in their --the way they --they conceptualize the firs amendment violation. ntam books, encouraging a third party pish speech with crcn. justice gorsuch: can we look at the lloyd's cident in isolation or --i mean, you he a complaint, we're at the motion to dismiss stage, we havto take ierences in your favor. and, certainly, you don't nt to be to be limited on remand to arguinju the lloyd's incident as your -- your case. mr. cole: well, that's right. i mean, you know, i think, rht now, the most significant harm to the nra is that the 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 company in new york. those should be taken down. so weou urge you, both for purposes of guidceo --to others and because it matters to the tite remedy in this case, to address the meeting with llo's, the guidance letters, and the subsequt enforcement action. and the other thing i would say about the meeting with lloyd's is it was in private. it was in private. so that the nra might have suffered some damages vis-v lloyd's with respect to that meeting. but the real damage in terms of putting the scarlet letter on the nra comes from h plic actions and governor cuomo's public actions to issue these guidance letters. so i would urge you aress the whole picture here, to --to reinforce bantam books, and to

vee on the merits. chief justice roberts: justice kavanaugh? justice kavanaugh: quickly, your view on the four-part test that some of the circuits ve developed? mr. cole: you know, i think 's a -- i think it's fine. i think justice kavanaugh: that's about all i need. [laughter] mr. cole: yeah, and i would just sa along as --as long as the ultimate inquiry is has the government engaged in coercion, has it invoked its coercive authority in some way, sha, form? justice kavanaug a what if new york went to insurance coanies and said, we don't want you to continue insin gun manufacturers or sellers for

the same reasons? mr. cole: well, that woul't be a first amendment problem because i don't thinkhe is a first, but it might. mht be a second amendment problem. if the government's coercion is focused on conduct rather than speech, then it's not a rs amendment problem. justice kavanaugh: and that's then my last question. on bantam books, this a little bit unusual, obviously, becset's not going to --the government's not going to aomnications company, a bookstore, a social media company, to say, take down that speech, but it's going an insurance company. but i guess i take your point th bantam books, as long as the ultimate action is again speech, it doesn't matter that the intermediary is t self a speech business. . cole: yeah, i think the key is it's this use of e ird

party to punish the target. so, for example, in bantam books, if they had said, we're going to encourage --those providers of insurance, the bootos -- to stop providing insurance, that wouldn't be a speech inrmediary, but it would be the same problem. justice barrett: i just want to give you a chance, mr. cole, to address your friends on e other side's arguments that we shouldn't reach the merits because we lack jurisdiction on the we denied cert on the qualified immunity question. and then they also say that the injunct --claim for an injunction is no longer in the caseecse you didn't cross-appeal it. i wanted to give u chance to address that. mr. cole: no, this court did not divest itself of jurisdiction

when it grand e case and asked for briefing on only one of the two questns presented. if the court reverses on that ground it would be totally appropriate to send it back to the sendircuit to reconsider the qualified immunity question, which is, as resndt herself argued in the second circuit, inextricably intertwined with the metsetermination. the court's assessment of the merits here bically disregard of what happened a lloyd's. it's adopting every inference in favor of vullo and against the nra with respect to the guidance letters. all of that infected not jus e merits determination but the qualified immunity determinio so the cou h jurisdiction over the case. it canevse it on the question and then it can ask the

second circuit. and as to the injunction, it was noin --this was --there was no final order. tr's no final judgment. and so we have the right aeal that and we will appeal that when there's a final judgment. this was ainrlocutory appeal from immunity holding only, so we had no obligation to cross-appeal. justice jackson: so justice kavanah cked up on what i think might be a critical distctn, and i'm just trying to understand it. so he said here we have a situation in which the government is not acting on a company that is itself in the business of speech, which is true, unlike bantam books, where it was. and so what i'm worried about is your position ultimately reducing to anytime relator enforces the law against an entity that do biness with an advocacy organization, we have a fir andment violation

because it seemed like your answ thim was, well, what gets this into the first enent column, unlike other scenarios, is that the nra advocates for guns, and it's an advocacy organization, and so action taken against it makes it a first enent violation. even though the government was not coercing the speech itself in the same way as bantabos. so how do we avoid a world in which advocacy organatns are exempt from regulation? mr. cole: so we're definitely not ki for a, you know, advocacy organization exemption fr regulation or even from regulation of thd rties. what bantam books requires is that the government encoure third parties to party speech. once they have done that. justice jackson: but is it --it -- it'not --forgive me, but it is not punishing speech.

it is censoring speech. mr. cole: no, it's --it's --it's true in bantam books iwa about --censoring speech, but, ai as i have said -- justice jackson: but why isn't that relevant? i mean -- mr. cole: be --be -- justice jackson: justice gorsuch. suggests that you might ha a retaliation claim, which is a kind of fit endment, it's a species of firsamdment. you allege it in this case. and that makes perfect sense, right, that ty're --they're punishing me because of my speech. that is retaliation. censorship is something different. and what i'm suggesti ithat bantam books is a --basically a censorship case, that what they're doing is forcing thes companies to take down or --or remove speech that the government objects to. and that i don't quite see happening here, as opposed to the other theory that you do

algewhich is they don't like what it is that we do and they're using the levers of government to prevent us from operating. . cole: yeah. and --and if there were a distinction ith first amendment between censorship and burdening speech because of its content, then maybe that will be correct. but theriso such diinion. the first amendment requires strict scrutiny when the government censors speech because it doesn't like what it when it burdens speech because it dsn't like its content. and in this case, it sought to burden rather than censor. but that doesn't --it doesn't in any way alter the --the logic of bantam books, the way bantam books has been applied for 60 years. it has been applied consistently to situations in which government officia. justice jackson: i've never seen any other situation like chief justice roberts:

counsel, there's considerable overlap obviously with the first case. could you articulate what the significant differences are between your position in this case and the offi's position in the prior case? mr. mcdowell: there are no differences as to the legal prciples. the difference here is tha there is a specific coercive threat, particularly in the lloyd's meeting, where she threatened adversection in the form of an enforcement action so that lloy's would comply with a specific instruction to cut ties wi a gun groups, especially the nra, whereas, in murthy, the aiiffs did not identify any instance in which a government official threatened toak adverse action against a social media company toethe social media company to engage in specific content moderation. they just point to generic references to legislative reforms that were untethered from any content moderation reest. chief justice roberts: so i -- are you focusing on the ecificity of the government action or -- or what? mr. mcdowell: in murthy, there was no threaatll. there was no threat of adverse action at all. there were just talks about leslive reforms, but they

were not connected to any specific instruction. sooeion in our view requires a threat of adverse action connected to a specific instruction such that it's saying, if you do't do x, we will do y to you. and that wasotn the record in murthy. it is in the record -- or accorngo the complaint here with respect to the lloyd's meeting in particular. justice alito: so does that mean that really the new york officials could have achieved what they wanted to achievif they hadn't done it in such a ham-handed manner? so, instead of having the meeting with lloyd's and -- they just gave speeches about e rror -- about guns and how bad the nra is and they spoke about social backlash against guns and those who advoteor gun rights in the wake of the terrible parkland shooting, but in all of that, they don't mention anhing about any regulatory

authority, and then, after harping on that for a while, then they make general atents about the importance of every insurance company taking into account reputational risk, and then they sit back and eyee whether that's achieved the desired result, basically, that's what your position is, isn't it? mr. mcdowell: n yr honor. justice alito: well, what -- if what th d was what i just outlined, would that be a violation of bantam books? mr. mcdowell: probably not because there would be an attenuation between the invocation of legal consequences and the instruction or the message. but we think the first four paragraphs of the guidance letters, standing alone, are permissible governmentpeh because those four paragraphs involved criticisms of the nra and urging thirdares not to support the nra. that's the classic form of governmentpeh that falls within longstanding tradition. presidenrean expressly criticized the kkk and urged tins not to support or associate with the kkk. that's what the first four paragraphs are doing. justice alito: well, and if

they had said evytng in those first four paragraphs in some otherort, it would be a different matter, but this is a guidance letter. mr. mcdowell: i take the point -- jti alito: i mean, they understand what a guan letter is about, right? mr. mcdowell: i te e point that the fact that it's in a guidance letter is hhl unusual. you would expect to see this in an op-edr a press conference. and that is a factor, i think, in gngo the implicit coercive analysis. but, who the fifth paragraph, there's no invocation aadverse action at all. so the first four paragraphs standing alone, although unusual, would still be permissible government speech. justice alito: yeah. so they -- ey gilded the lily or whatever the phrase is. i mean, they were ham-handed about this. the people up in new york are rus. they don't really understand how to do this. if you do it in a more sophisticated manner, you can achieve what you want to achieve. . dowell: i -- i don't know, justice alo, because i don't know that insurance compieand banks would feel that their will was overborne or that th we really at riskf periencing adverse action in your hypothetic. that's the question. are the parties able to exercise their own independent judgment?

justice alito: i mean, seriously, you think that sophisticated insurance companies are not taking into count adverse risks? they probably had heard about the parkland shooting and the aftermath of it. you think they hadn't already taken this into cot, and didn't they already know all the power that ms. vullo had over them? mr. mcdowell: they certainly knew about the authority that dfha but without any invocation of that authoritynd tying of that authority to a specific instruction likwe have in the guidance letters, i don't think we wldet to coercion. justice gorsuch: you -- you agree, though, the fifth paraaph changes the calculus? mr. mcdowe: es, your honor, but i want to be -- i want to say something me it very clear. wehi that this has to be considered alongside the press release and the tweet. we think that's one itf governmental communication, so it's -- we would not look at the guidance letters alo. and we would lk the guidance letters particularly as a way to reinforce the allegations about the lloyd's meeting rather than considering the guidance letters as a standalone matter. justice kagan: and why are you so -- juicgorsuch: do you -- i'm sorry.

justice kagan: no, go ahead. stice gorsuch: just to finish up, do you -- do you view this as -- as justice barrett asked, as a clearcut case under exti law? mr. mcdowell: yes, your honor, especially with the -- with the lloyd's meeting, ablutely. justice kagan: why are you so concned about only looking at the guidance letters in combinatiowi everything else? what would be wrong with looking at the guidance letters alone, given that there is this fifth paragraph? mr. mcdowell: yeah. the fifth paragraph, i think, takes you pretty far and we're not saying that it woulbempossible to conclude that that would be a threat alone, buthiwas one unit of government communication because it was in the same 24-hour period and they were all discussing the same thing. and i think the press release measurably more explicit. it says it "urges businesses t join the companies that have already discontinued tir arrangements with the nra and to take prompt actions to manage their risks." so it's pointing back tthrisk management obligations from the guidance letter, and it's putting it into onseence to make it very clear. d then the cuomo tweet says the nra is an extremist organization, and he's urging companies to revisit any ties they have to the nra and consider theirepations.

and our broader coeris just that plaintiffs will -- if the courterto focus on the guidance letter alone, it could allow plaintiffs to try to cobble together first amendment ai by pointing to disparate statements of government speech antrying to connect them up to invocations of legal obligations. obviously, it'eaer here because it's in one document, but that's oubrder concern. and these are soust very unusual documents, the guidance letters, and it's kind of hard to interpret them in isolation because it is very odd to see this sort of government spee in a guidance document. justice alito: if this ca goes back for trial, do -- do you claim that the guidance letters and the enforcement actions would not be relevant and admissible? mr. mcdowell: no, your honor. we think the guidance letters wod be relevant. as i said, they reinforce the plausibility -- justice alito: yeah. what about the -- the consent decrees? what about the enforcement actions and the consent decrees? mr. mcdowell: so the district court did held -- did hold thashwas entitled

for absolute immunity for those. we also think that they were targeting conduct because they appear to have beebad on bona fide violations of new york insurance law. so we don't see a free speech concerinpendently with them. but i do think that the lloyd's const cree, again, could bear on the plausibility of the allegations with respect to the lloyd's meinin the following way: there's a term in the lld's consent decree that broadly banslo's from doing even lawful business with the nra, and that sheds light on the plausibility of the allegation that in the meeting, vulloas trying to coerce lloyd's into stopping even lawful business with gun groups. justice alito: has this court ever held that every federal and state officer who is the head of an ecuve department or the head of an independent gulatory agency with enforcement powers has absolutely immunity? mr. mcdowell: no, your honor. but this was a prime -- the holding ofheistrict court was that this was a -- she was exercising prosecutorial function witreect to the enforcement actions at issue. justice alito: yeah. have we ereld that all of those officials have absolute

prosecutorial immunity? mr. mcdowell: no, your honor. we're not taking a position on the merits of the absolu chief justice roberts: thankr. you, counsel. justice thomas, ng further? justice alito? justice sotomar? justice sotomayor: so i already previewed what my question would be. how do you see them writing -- wanting the opinion and how do you want it? and tell me what the differences are and why they're important. mr. mcdowell: so our first order preference is, as i said, to use the guidance letters as a way to reinforce the plaubity of the allegations about the lloyd's meeting and to hinge the first amendmenanysis on the lloyd's meeting because that's an explicit threat. it's just a straightforward way of resolving ts se. and as i said, the guidance letters reinforce the plausibility of those allegations because e idance letters were sent not only to insurance companies but also to banks. and there's no suggestion that the nra was dog lawful business with banks. and, of course, the guidance letters also expressly urge insurance companies and banks to

cut l ties with the nra, not just the lawful business. ose aspects of the guidance letters reinforce the allegation that in the lloyd's meeting, she was trying to coer lyd's to stop all of its business with gun groups, not just to target unlawful conduct. chief justice roberts: justice kagan? justice go justice kavanaugh? justice rrett? justice jackson: just one quick clification. you say the lloyd's meinis an explicit threat. so, fine, let's y ey state a claim. what's next ites of proof? don't they have to show something about her motivation? mr. mcdowell:o, justice jackson, thage to, i think, somethinmrcole was talking about. there are two kind of aspects of this sort of claim. e's the coercion question, and then there's the first enent harm question. re, the first amendment harm is based on viewpoint discriminaon so, yes, they would have to show that she was motivated by the -- the targeting of a particular viewpoint, as opposed to the targeting of conduct. we just think that the complaint alleges that that's what her motive was because, on page 223,

it says -- i think says it most explicitly, 223 of the petition appendix, she was engaging in this threat in order to get lloyd's to aid dfs's campaign against gun groups. so there's a focus on the speech aspect of the nra, as opposed to any conduct that it was engaging in. justice ja thank you. chief justice roberts: thank you, counsel. mr. katyal. mr. katyal: thank you, mr. chief justice, and mayt ease the court: the key fact in this case is the conceded illal conduct. as justice sotomayor said, the three insurers and the nra broke the law. they were selling intentional criminal act insurance, and all the products they offered were unlawful because thnr refused to get a license. that's why bantam books is miles away from this case, a 's why the court below found qualified immunity protects vullo. in this posture, iqbal demands courts ask, asetween the invidious coercion asserted or the obvious explanation she was

enrcing the law, is coercion plausible? when illegal action is present, the plausibility burden is higher. to use mr. cole's phrase, the governme imore likely responding to conduct then, not spee, d four separate doctrines explain why. first, iqbal held plausibity rules are "especially important in suits where government defendants assert qualified immunity because they must be neither deterred nor distracted from vigorous performance by disruptive discovery. second, the presumption of regularity is at its height. third, absolute immunity protects enforcement actions. and, fourth, causation is more difficult. that is particularly so after parkland, which led many businesses that ms. vullo has no control over, such as united airlines and avis cars, to sever ties with the nra. for this court to accept this thin complaint and the tee o the conceded illegal conduct, it would empower strikeui to enjoin valid enforcement and

open sensitive discove. that's why the court's traditional test he is right. a government official crosses the linerocoercion to persuasion when, one, they are objeiv-- when they are threatening as pod to encouraging and, two, there is no objectively reasonable basis for their action. the nra can't meet that test, and that's why they are seeking to weaponize the first amendment and exempt themselves om the rules that govern you and me, simply because ty're a controversial speaker. i welcomthcourt's questions. juicthomas: would you spend just a small amount of time explaining why you think t conduct, all of this, is infected by, i guess, the one illegal insurance product involved here? mr. katy: so, justice thomas, our position and ms. vullo's position throughout has been the's not one illegal insurance product, it's all illega and the attachments to the complaint attach the consent orders which make that cle. the nra never goa cense for all of the affinity products.

it's thr rden to prove -- i know the word "lawful insurance oduct" is in the complaint. theyever identified it in the complaint. our red brief spent, obviously, a huge amount of time onhi and called them out. to this day, they v't explained one lawful product that was ever issued by these three insurs, and that's why we think, if you're asking yourlf under iqbal and twombly is there an obvious likely explanation for what's ing on, that's what it is. that's why the consent orders read the do -- the way they do. justice sotomar:sorry, these affinity programs could have been altered. and these consent decrees and what she was seeking was a ban enf potentially lawful affinity programs. i mean, if they had tan t the intentionalityrosion or the criminal activity provision and just insured for accidents with guns orhings like that, those would have been lawful.

she went further and said you can't even have -- mr. katyal: and dfs and regulators do that all the same, justice sotomayor. so there are twoucts of illegal activity, serious illegal activity that ms. vullo isoledand they're at issue in the consent orders by name. e is the provision of intentional act insurance, sometimes called murder insurance. that violates public poly in new york, as almost every state. second, the fact nra was doing all of these ainity products without a license. now, just wiout a license alone, dfs routinely imposes massive sanctions, including feme bans. for example, metlife, which we ci in our brief, in 2014, they were offering -- did the same thing, offering unlicensed insuran wh a partner, lifetime ban. lifetime bs e not unusual. they hpeall the time. in securities regulation, you can have a lifetime ban for a meing. what normally happens, justice sotomayor, in these cases is, if the nra ever decided that they wanted to get a license and offer a lawful plan, they then

come back and seek a modification of the consent order. but there's nothing unusual whatsoever about pishment like this. what is unusual is to allow a strike suit like this. remember, th case was filed during the investigation, in may of 2018, in order to stop it from going forward. the consent orders then happened. and so now they're here tryi to effectively undo that enforcement action. and the worry here, it's not just about this case. it's about any case because everyoneanllege, you know, can stop a plea negotiation or a consent set of negotiations by ying you're retaliating against me. i mean, you know, if you just think about what dinh d'souza said publicly in his filings or michael avenat about the president, i'm being retaliated against becausof me -- because of my speech. and th's the danger, and that's why there's alyseen an objective unreasonability standard. and mr. cole says h brief at page 23, in his reply brief,

oh, don't worry, the nra will never do thi 've only filed one suit on bantam books before in our histo and it's this one. that's wrong. in five minutes of internet research, we found another case in which the nra sued san francisco on exactly that theory and if you look at his amici brfs, at least 10 of them admit they want to do this to open up lawsuits for when chick-fil-a isn't being zoned in the right place -- justice sotomar:counsel, you've answered my question. chief justice roberts: mr. katyal, wh dyou do about your friend's argument that you've waived this, not raising it in the district court or the court of appeals or in the brief in opposition? mr. katyal: so the -- he has a couple of waiver arguments. which is the "this," the absolute immuny int? chief justice roberts: yeah. i'm sorry, y. mr. katyal: so, on absolute muty, i don't think that we -- we waived it. so, you kn, rst of all, everything i just said before esn't turn on absolute immunity or not. i'm explaining why this was't ercive, what happened in either the lloyd's etg or the consent orders.

now we do think the's a separate argument about absolute immunity and there's od reason to reach it. it was ventilated down below, and i thini's squarely before this court. soe's what the district court said at petition appendix 53a. th is its holding. "vullo's decision to enter into the loto lloyd's, and chubb consent orders and tirrecise terms are all entl to absolute immunity because they are prosecutorial actions premised oenrcement decisions intimately associated with the judicial process. " noi's fair, as he says, we raised that in the selective enforcement claim t t in the first amendment one, but there is good reason forhabecause, at that point in the district court, their first amendment claims were focused entirely or almost entirely on the letters and thprs release and absolute immunity we're not claiming attended -- atnded to those acts. we're saying it explains what happened in the consent orders and in the 2/27 lloyd's meeting. justice kavanaug . katyal, it's a t rring, i guess, for

me that the solicitor general is on the other side from you in isase given that the solicitor general represents t united states and, as we know from the last case, has a ry strong interest in not expanding bantam books. so how should we thi about that? mr. katyal: i think, you know, i don't want to characterize their movations or anything. i just think ultimately, when they get to, you know, what -- their test is not different an our test. i think we're all basically in agreement that, for example, that the second circuit got it right. the second circuit's test is government officials cannot use their regulatory powers to coerce individuals or entities into refraining from protected speech. justice kavanaugh: are you okay with that four-part test? . tyal: absolutely. fine with that. think the difference is that we do have to insist on an objective reasonability when you're dealing with enforcement actions, that second prong that i started with, because, otherwise, you're opening the door to, as nieves points out,

annean -- anyone will be highly incentivized if they'rehe target of an investigation to say i'm being retaliated against. so you need to show obcte unreasonability, and it's here where their claims fall apart. they were dog ssively illegal things. new yo eorces that all the time. if their complaint pled something like jaywalking and id: look, you're not enforcing it, except against us, that states a claim. that's not this complaint. justice gorsuch: i'm sorry, mr. katyal, just to foowp on justice kavanaugh's original question, it seems like that we're all in agreement that the law here is clearly established under bantam books and it's just a matter of application. that right? mr. katyal: i certainly think the law is clearly established in terms of what i rd you at the second circuit is fine. justice gorsuch: the standard, yeah? you think that's clearly establhe mr. katyal: yes. so the concern is, without an obcte reasonability test, you open the door to people ling strike suits against

enforcement actions alth time. now i guess they then say: well, okay, it'not the 2/27 meeting thloyd's or the consent orders themselves. you'veot to read that in light of the guidance letters, the guidanceetrs. we think absolutely you should look at them all together, a the solicitor general says. justice kavanaugh: and i thin they do say the meeting itself is enough. mr. katyal: yeah. and if that meeting is enough, justice kavanaugh, every meeting, every ple negotiation's enough. that's literally what they ar they'reonin secret, behind a closed door, to use their insidioulanguage. that's the natural give and take. what vullo said, according to their own allegations, is we've got some goods on you, and we are willing to look pa some in order to make a resolution here. now it's true that she and -- and governor cuo have said things about the nra. there's nothing that ties that givendake in the complaint, and certainly not plausibly so, to the feelings about the a. and, by the way, the tweets that my friend has beenefring to

from governor cuomo aren't even in the complaint and were issued months after the complaint was even filed. so i thi it's very natural that in a 2/27 meeting about resoing these issues, you're ing to say: look, i'm going to look past some issues in order to strike a resolution. that's all that is. justice jackson: mr. katyal, can i justskou about the standards again? so suppose i agree with you that illegality was sort of at the heart of what was going on he, that all of the products were legal. let's just assume that i agree with you for a second on that. doesn't that go less to coercion than to the next question, which is whether or not that coercion of a trdarty affected a violation of the first amendment? i mean, the fact that the siness was illegal doesn't necessarily mean that th february meeting wasn't coercive. i think gornnt action in enforcing the law is coercive.

so i't it just that she has a go defense to the argument that there's a problem here under the first amendment? mr. katyal: igree with almost everything except your last sentence, justice jason -- justice jackson: okay. mr. katyal: and the same point you made in the first argument. coercion by itself is not illegal. the government coerces all the time, in plea negotiations, in bringing criminal charges, and the like. what makes it illegal is if you're retalti against someone's speech, and it's that where the mpint falls apart. justice jackson: do you concede that in this case? that if she was coercing -- coercing them under these circumans, it was retaliation? mrkaal: well, no. justice jackson: okay. . katyal: so we think that it was anxeise of legitimate law enforcement. we think they're aolely fine to bring a complaint that has some direct eviden tt says, oh, no, she is -- actually, this is not a prosecution thatou ordinarily be brought. this is, ratr, selective targeting of me. justice jackson: but that's at the suarjudgment stage,

right? mr. ty: it could be done at 12(b)(6), as it was here, and, indeed, the selective enforcement claim wathwn out. and our point y is, in order for them to state a claim -- and niesays this, you've got to plead and prove. that's the language, "plead and prov" ou've said it four times in the decision. and this complaint does not eaand prove that enforcement wouldn't be ordinary -- wouldn't be ordinarily done. what they've said in the complaint is we have some comparators, the oomrists association, the new york city bar offers insance. i guess they allege there are technical olations there. none of those folks are doing what the nra -- was doing and what vullo said. justice alito: mr. katyal, y're shifting the burden to them. this ia rst amendment case. all they need to do is to show that the desire to suppress ee was a motivating factor. they don't have to prove that the regulatory action would have

been taken even if ms. vullo didn't ha ts motivation. mr. katyal: so i think, your honor, that nies directly says no to at. wh nieves says is precisely because allegations against enforcemenare so easy to allege and difficult to disprove, and beusit bumps up against the presumption of regularity, and because it opens the door tmaive discovery into senti government files, and because it incentivizes op to make controversial speech and then claim an exemption, no, you inst at this be in the pleading itself. and that's -- and, you know, that's consistent, of course, with, like, for example, iqbal and twombly, which said similar things even outside of the retaliation context. justice alito: i -- i mean, really, this is kind of -- suppose the allegationase had a meeting with ms. vullo and she pulled out a - a pistol and she held it to our heads and shsa, i'm going to

bl yr brains out unless you stop writing insurance for the nra. at would not be enough to even allege a bantabos violation because she might have taken that same regulatory action -- she might have taken regulatory action for a perfectly legitimate reason. mr. katyal: your honor, there, the government's conduct would be oecvely unreasonable, and it would flunk our test. so we think th inot a hard test. 're not seeking to change the law. we're just pointing out that when you're in a situation like this of conceded illegality that there is an obvious alternative explanatn r what ms. vullo was doing here, which was enforcing the law. d is is the worst case in order for you to say this shld past 12(b)(6) because, if you allow this case with i conceded illegality to go past 12(b)(6), then i think any plaintiff will be able to do this. the government -- juste tomayor: i'm sorry. what was the conceded ilgaty?

mr. katyal: yeah. so, in the complaint, it taches the three consent orders by the insurers, l which say we agree, weer offering illegal insurance. justice sotomayor: l ght. those are those three. and what does that have to do with the nra and cutting ties witht? mr. katyal: because they -- they were offering -- what they said was illegal w e insurance products with the nra, that the nra refused to get a license. and so all of the insunc-- justice sotomayor: but what made it illegal for -- nra didn't have to or it could offer its products to someone else? that's where i'm confused. it could use a licensed broker to -- mr. katyal: well, once -- once the nra was acting in thi way as a bad actor, ms. vullo entered a -- entered into a consent order with them for a broader prophylactic setf nctions. this goes back to your first question. that happensllhe time. and the reason for that -- justice sotomayor: yeah. all right. then stop. and why are the other program --

sunce carriers that are -- have these similar policies, the new york state bar associaon all the other people who have similar policies, why are they differt? mr. katyal: because they didn't do what the nra did here and the three insurers, which was not just act as unlicensed but offer this - these insurance policies that serislviolate public policy, called -- -cled murder insurance, that cover intentional criminalct and when you have those two things together, this enforcement action -- justice sotomayor: i thought some of them did, but i can check the record. ok. mr. katyal: so our -- our positionere is that the court shouldn't -- shou aolutely look at both of the -- you know, all e different conduct together. we think any one of them individually doesn't add up to something that's coci, and together, they don't add up to something that's coercive. the other thing -- other point i'd like to make, and this goeback to, justice alito, to your points about iqbal and twombly --

the standard about -- at the pleading stage. i think it's relevant to no at in twombly itself, there were two alternative explanations for what was going on with these big behemoth companies. one was that they were conspiring a iegally agreeing to divvy up the market. the other s at they made individual determinations on their own to do that. here, it's in what -- justice gorsuch: and -- an m katyal, you're right, twiql says you have to look at the whole of the allegations to determine whether it'plausible or not, right? so, here, doesn't that mean that we have to look all of the allegations in the complaint? mr. katyal: correct. justice gorsh:okay. mr. katyal: and when you do that, thk the only -- the one we haven't talked abo yet is this reputational risk, esindustry guidance letters, and we think these industry idce letters are so far removed from bantam books, we'd ge you to look at footnote 5 in bantam books and hold them up against the reputational risk letters.

in those letters, ey- doesn't say anywhere anything like we're going to sue you or we're going to regulate, unlike what the threat was in bantam books at footnote 5, bringing in the attorney general, bringing inhe chiefs of police. they don't say that she's even investigating the compans r anything. there's no refercehatsoever to an investigative body. it doesn'ev actually say, as the second circuit points out, that tres any reputational riskitthe banks and insurers maintaining their ties. ss if any reputational risk. and i think the most important int -- and, justice kagan, thisoeto something you said to my friend earlier -- is that these letts e viewed -- you know, the en't the only industry letters dfs sends. they sd em all the time and -- including reputation rk letters. and you have amici after ami before you saying these ar milquetoast reputation risk letters. and if you want a go emple, take a look at the one they cite in their brief autrypto --

about cryptocurrency at page 23. that says companies have "legal uertain practices, they make inaccurate or mieang representations and disclosures, and that agencies are evaluating the legal permissibility and complnc with applicable laws and regulations." of course, if you're going to issue there's no e concern is into that a bantam books claim, you will diss incentivize people to issue reputation risk letters. >> you are n suggesting that after the initial conduct by ms. vullo d t rction of the national rifle association, that

e instructed her staff to go through these policies and find something that violates some regulation, that she could then defend against the basis of terminating those newly discovered violations. mr. katyal: that is like going through to selectively target one person. nieves says that will be impermissible. the difference with this case is they did not point to a comparat. nieves is asking, is this an outlier case or not? as justice sotomayor was saying, the optometrist association and e like, those folks were not doing the same thing at all. at the most they were offering an unlicensed affinity product. they certainly weren'offering something as dramatically dangerous to public policy as so-called murder insurance. that's why what ms. vullo was doinhere was absolutely explainable. there's an obvious alternative explanation, to use the twiql

words. and that's wh iyou let this complaint go fwa, you will be then saying to government regulators eryere that you have to be careful about the speech you say. so, for example, last week, some of youeard the president say, you know, we beat the nra, we're going to beat the nra again. you heard my -- in the first argument a discussion about tiktok and -- and, you know, a government -- a hypothetical in whh the government attacks tiktok and criticizes it. all of those things -- those statents now will be used as -- in examples in affirmative tition to -- to issue strike suits to stop enforcement actions by thetc by the justice department, by ates and the like. and, justice kavanaugh, i am troubled by the fa t solicitor general isn't embracing that, bui do think it's important to point out many states are. you haveefe you a brief by 10 different individuals. i ta wt the solicitor general's done is to read pagrh 5 of the reputational risk letter so broadly that it

becomes coercive. and we just don't think that opinion can write, that if you tried to do thatyowould be opening the door to something very, very dangerous and destructive down the road, which is this case will be cited, and they've already had a track recordf using a bantam books situation in other enforce -- to sp other enforcement actions, not just this one. and it's not just the nra today. it's every regulated party tomorrow from tiktok on. chief justice roberts: justice thomas? justice alito? justicalo: you say in your brief this case is not even close. y stand by that? mr. katyal: i do. i do under the existing justice alito: thank you. chief justice robertstice sotomayor? justice kagan? justice gorsuch? justice kavana justice barrett? justice jackson? okay. thank you, counsel. rebuttal, mr. cole? mr. cole: so i agree with my

friend on one point. this case is not closed. [laughter] with respect to nieves, he -- he's taking a -- a particular standd at this court adopted in the particular context of retiatory arrests, tens of thousands occur every day, and adopted aarcular rule with respect to 1985 -- 83 damage actions. this is a first amendment question. it's not a 1983ueion. it's a first amendment question that's bereou. this is not a retaliatory arrest case. there is -- this is ca that arises very rarely. w've looked at bantam books, and in 60 years, there have been about 20 to 40 cases in the courts of appeals over 60 years involving attempts by the government to coerce a third party to punish sobo else's speech. that's ve dferent from the nieves situation. so that's just not in the law. yowod have to change the law substantially to adopt that.

secondly, with respect to e cuomo tweets, they werised after the first complaint, but they were issued before the second amended complaint, which is the operaveomplaint here. and under tellabs, they are perfectly appropriate to coid at the motion to dismiss stage, judicial notice. nobody disputes that he said extly what he said. they want them out of the se because they demonstrate the permissible motive. carry guard, carry guard is a red herring here. the carry guard progm s suspended by lkts and the nra in november 2017. everythingls-- everything that we're talking abouhe happened after november 2017. her eting with lloyd's, lloyd's did not underwri cry guards. and her meeting with ly's says cut your ties with gun groups, especially the nra, because i'm trying to weaken them. gun groups don't have carry guard. only the nra did. it wasn't even operative at that pot. the guidance letters say notng

about carry guard. this is not a guidceetter about insurance infractions. this is a idce letter about the nra and other gun promotion organizations. e a's insurance was not all illegal. no, the nra didn't have an insurance license inework because it's not an insurance company. nor does the aba. nor does the american ophthalmologistsssiation. but they all he affinity insurance, and it's just run by broks,s justice sotomayor said, in new york. a's perfectly legitimate. there were some infractions terms of how it was maet, how the compensation structures, that were actuallyui commonplace in the industry, and she enforced them against them and not against -- against otrs finally, the notion that this is buness as usual, business as usual for a -- a government official to speak

with a privatearty and say we'll go easy on you if you aid my campaign weaken the nra, that is not business as usual. that is not an ordinary plea negotiation. nor is the guidance letter.