Qualified Immunity Wins Again, and Free Speech Gets Another IOU

I read Supreme Court order lists the way you read a town budget at the library: slowly, suspiciously, and with the sense that the clean paper is about to describe something messy in real life.

On February 23, one line did a lot of work: certiorari denied in NRA v. Vullo, Maria T. The justices declined to review a Second Circuit decision that gave former New York financial regulator Maria Vullo qualified immunity from damages.

What the denial means (and what it does not)

The Supreme Court did not endorse the Second Circuit’s reasoning. It simply refused to take the case. But for the parties, that procedural shrug is often the same as a final period.

And here is the civic translation: the Court had previously signaled the NRA plausibly alleged a First Amendment violation, yet it is now leaving in place a ruling that says the alleged violator cannot be held personally liable because the exact contours were not “clearly established” at the time.

Yes, that was a foul. No, it does not count.

Plain courthouse English: what the NRA alleged

The NRA’s claim lived in the regulatory weeds, where censorship can hide without ever using the word. New York’s Department of Financial Services regulates insurers and other financial players. The NRA alleged Vullo used that leverage to pressure regulated entities to distance themselves from the NRA, effectively choking off business relationships to punish or suppress disfavored advocacy.

In 2024, the Supreme Court said the complaint plausibly alleged a First Amendment violation: regulators can criticize a speaker and enforce the law, but they cannot use the threat of enforcement to coerce third parties into economically isolating a speaker to silence it.

Then qualified immunity arrived

On remand, the Second Circuit still found Vullo shielded. Its reasoning: even if the general rule against coercing speech suppression was well established, it was not clearly established that this kind of regulatory pressure aimed at third parties crossed the line, especially in a setting where the state also had genuine enforcement interests.

With cert denied, that shield stays put.

The liberty ledger

• What government needs: room to enforce laws in heavily regulated industries. If every decision creates personal liability, you risk paralyzed government.
• What citizens need: a real remedy when officials allegedly use regulatory power as an end-run around the First Amendment.

A right you cannot enforce is not a right. It is a museum placard.

The Paine test, plus an Orwell check

The Paine test: does this expand liberty or concentrate power? As applied here, qualified immunity concentrates power by rewarding ambiguity: the more indirect and novel the pressure campaign, the safer it may be.

The Orwell check: watch the soothing phrases. “Regulatory discretion” and “not clearly established” are not lies, but they can function like euphemisms that launder the moral weight of coercion into something that sounds like paperwork.

Guardrails that do not require sainthood

Lawmakers can clarify remedies and adjust liability frameworks. States can create clearer causes of action. Agencies can treat off-the-record pressure tactics as an ethical hazard by requiring documentation, criteria, and internal review. And watchdogs should keep asking the boring questions: who met with whom, what was said, what was threatened, and what changed.

We do not need to like the NRA to dislike the precedent. If a constitutional wrong earns no consequence, what exactly are we teaching the next official with a lever in their hand?