National Rifle Association of America v. Vullo

NOTICE: This opinion is subject to
formal revision before publication in the United States Reports.
Readers are requested to notify the Reporter of Decisions, Supreme
Court of the United States, Washington, D. C. 20543,
pio@supremecourt.gov, of any typographical or other formal
errors.

															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 22–842

															_________________

															NATIONAL RIFLE ASSOCIATION OF AMERICA,
PETITIONER v. MARIA T. VULLO

															on writ of certiorari to the united states
court of appeals for the second circuit

															[May 30, 2024]

															Justice Sotomayor delivered the opinion of the
Court.

															Six decades ago, this Court held that a
government entity’s “threat of invoking legal sanctions and other
means of coercion” against a third party “to achieve the
suppression” of disfavored speech violates the First Amendment. Bantam Books, Inc. v. Sullivan , 372 U.S.
58 , 67 (1963). Today, the Court reaffirms what it said then:
Government officials cannot attempt to coerce private parties in
order to punish or suppress views that the government disfavors.
Petitioner National Rifle Association (NRA) plausibly alleges that
respondent Maria Vullo did just that. As superintendent of the New
York Department of Financial Services, Vullo allegedly pressured
regulated entities to help her stifle the NRA’s pro-gun advocacy by
threatening enforcement actions against those entities that refused
to disassociate from the NRA and other gun-promotion advocacy
groups. Those allegations, if true, state a First Amendment
claim.

															I

															A

															Because this case comes to us at the
motion-to-dismiss stage, the Court assumes the truth of
“well-pleaded factual allegations” and “reasonable inference[s]”
therefrom. Ashcroft v. Iqbal , 556
U.S. 662 , 678–679 (2009). Unless stated otherwise, the
allegations aver as follows:

															The New York Department of Financial Services
(DFS) oversees insurance companies and financial services
institutions doing business in the State. See N. Y. Fin.
Servs. Law Ann. §201(a) (West 2012). DFS can initiate
investigations and civil enforcement actions against regulated
entities, and can refer potential criminal violations to the
State’s attorney general for prosecution. §§301(b), (c)(4). The
DFS-regulated entities in this case are insurers that had business
relationships with the NRA.

															Since 2000, the NRA has offered a variety of
insurance programs as a benefit to its members. The NRA contracted
with affiliates of Lockton Companies, LLC (Lockton), to administer
the various policies of these affinity insurance programs, which
Chubb Limited (Chubb) and Lloyd’s of London (Lloyd’s) would then
underwrite. In return, the NRA received a percentage of its
members’ premium payments. One of the NRA’s affinity products,
Carry Guard, covered personal-injury and criminal-defense costs
related to licensed firearm use, and “insured New York residents
for intentional, reckless, and criminally negligent acts with a
firearm that injured or killed another person.” 49 F. 4th 700, 707
(CA2 2022).

															In September 2017, a gun-control advocacy group
contacted the New York County District Attorney’s office to tip
them off to “compliance infirmities in Carry Guard.” App. to Pet.
for Cert. 206, Second Amended Complaint ¶34. That office then
passed on the allegations to DFS. The next month,
then-Superintendent of DFS Vullo began investigating Carry Guard,
focusing on Chubb and Lockton. The investigation revealed at least
two kinds of violations of New York law: that Carry Guard insured
intentional criminal acts, and the NRA promoted Carry Guard without
an insurance producer license. By mid-November, upon finding out
about the investigation following DFS information requests, Lockton
and Chubb suspended Carry Guard. Vullo then expanded her
investigation into the NRA’s other affinity insurance programs,
many of which were underwritten by Lloyd’s and administered by
Lockton. These NRA-endorsed programs provided similar coverage and
suffered from the same legal infirmities.

															In the midst of the investigation, tragedy
struck Parkland, Florida. On February 14, 2018, a gunman opened
fire at Marjory Stoneman Douglas High School, murdering 17 students
and staff members. Following the shooting, the NRA and other
gun-advocacy groups experienced “intense backlash” across the
country. 49 F. 4th, at 708. Major business institutions, including
DFS-regulated entities, spoke out against the NRA, and some even
cut ties with the organization. App. to Pet. for Cert. 244.
MetLife, for example, ended a discount program it offered with the
NRA. On February 25, 2018, Lockton’s chairman “placed a distraught
telephone call to the NRA,” in which he privately shared that
Lockton would sever all ties with the NRA to avoid “ ‘losing
[its] license’ to do business in New York.” Id ., at 298,
Complaint ¶42. Lockton publicly announced its decision the next
day. Following Lockton’s decision, the NRA’s corporate insurance
carrier also severed ties with the organization and refused to
renew coverage at any price. The NRA contends that Lockton and the
corporate insurance carrier took these steps not because of the
Parkland shooting but because they feared “reprisa[l]” from Vullo. Id ., at 210, ¶44; see id ., at 209–210, ¶¶41–43.

															Around that time, Vullo also began to meet with
executives at the insurance companies doing business with the NRA.
On February 27, Vullo met with senior executives at Lloyd’s. There,
speaking on behalf of DFS and then-Governor Andrew Cuomo, Vullo
“presented [their] views on gun control and their desire to
leverage their powers to combat the availability of firearms,
including specifically by weakening the NRA.” Id ., at 221,
¶67. She also “discussed an array of technical regulatory
infractions plaguing the affinity-insurance marketplace” in New
York. Id ., at 199, ¶21. Vullo told the Lloyd’s executives
“that DFS was less interested in pursuing the[se] infractions”
unrelated to any NRA business “so long as Lloyd’s ceased providing
insurance to gun groups, especially the NRA.” Id ., at
199–200, ¶21; accord, id ., at 223, ¶69 (alleging that Vullo
made it clear to Lloyd’s that it “could avoid liability for
infractions relating to other, similarly situated insurance
policies, so long as it aided DFS’s campaign against gun
groups”).[ 1 ] Vullo and Lloyd’s
struck a deal: Lloyd’s “would instruct its syndicates to cease
underwriting firearm-related policies and would scale back its
NRA-related business,” and “in exchange, DFS would focus its
forthcoming affinity-insurance enforcement action solely on those
syndicates which served the NRA, and ignore other syndicates
writing similar policies.” Ibid ., ¶69.

															On April 19, 2018, Vullo issued two virtually
identical guidance letters on DFS letterhead entitled, “Guidance on
Risk Management Relating to the NRA and Similar Gun Promotion
Organizations.” Id ., at 246–251 (Guidance Letters). Vullo
sent one of the letters to insurance companies and the other to
financial services institutions. In the letters, Vullo pointed to
the “social backlash” against the NRA and other groups “that
promote guns that lead to senseless violence” following “several
recent horrific shootings, including in Parkland, Florida.” Id ., at 246, 249. Vullo then cited recent instances of
businesses severing their ties with the NRA as examples of
companies “fulfilling their corporate social responsibility.” Id ., at 247, 250.

															In the Guidance Letters’ final paragraph, Vullo
“encourage[d]” DFS-regulated entities to: (1) “continue evaluating
and managing their risks, including reputational risks, that may
arise from their dealings with the NRA or similar gun promotion
organizations”; (2) “review any relationships they have with the
NRA or similar gun promotion organizations”; and (3) “take prompt
actions to manag[e] these risks and promote public health and
safety.” Id ., at 248, 251.[ 2 ]

															The same day that DFS issued the Guidance
Letters, Vullo and Governor Cuomo issued a joint press release that
echoed many of the letters’ statements. The press release included
a quote from Vullo “ ‘urg[ing] all insurance companies and
banks doing business in New York’ ” to join those “ ‘that
have already discontinued their arrangements with the NRA.’ ” Id ., at 244. The press release cited Chubb’s decision to
stop underwriting Carry Guard as an example to emulate. The next
day, Cuomo tweeted: “ ‘The NRA is an extremist organization. I
urge companies in New York State to revisit any ties they have to
the NRA and consider their reputations, and responsibility to the
public.’ ” Id ., at 213, Complaint ¶51.

															Less than two weeks after the Guidance Letters
and press release went out, DFS entered into consent decrees with
Lockton (on May 2), and Chubb (on May 7). The decrees stipulated
that Carry Guard violated New York insurance law because it
provided insurance coverage for intentional criminal acts, and
because the NRA promoted Carry Guard, along with other NRA-endorsed
programs, without an insurance producer license. The decrees also
listed other infractions of the State’s insurance law. Both Lockton
and Chubb admitted liability, agreed not to provide any
NRA-endorsed insurance programs (even if lawful) but were permitted
to sell corporate insurance to the NRA, and agreed to pay fines of
$7 million and $1.3 million respectively. On May 9, Lloyd’s
officially instructed its syndicates to terminate existing
agreements with the NRA and not to insure new ones. It publicly
announced its decision to cut ties with the NRA that same day. On
December 20, 2018, DFS and Lloyd’s entered into their own consent
decree, which imposed similar terms and a $5 million fine.

															B

															The NRA sued Cuomo, Vullo, and DFS. The only
claims before the Court today are those against Vullo—namely,
claims that Vullo violated the First Amendment by coercing
DFS-regulated parties to punish or suppress “the NRA’s pro- Second
Amendment viewpoint” and “core political speech.” Id ., at
231, ¶91, 234, ¶101. The complaint asserts both censorship and
retaliation First Amendment claims, which the parties and lower
courts have analyzed together. Vullo moved to dismiss, arguing that
the alleged conduct did not constitute impermissible coercion and
that, in the alternative, she was entitled to qualified immunity
because she did not violate clearly established law.

															The District Court denied Vullo’s motion to
dismiss the NRA’s First-Amendment damages claims. The court held
that the NRA plausibly alleged that “the combination of [Vullo’s
and Cuomo’s] actions . . . could be interpreted as a
veiled threat to regulated industries to disassociate with the NRA
or risk DFS enforcement action.” NRA of Am. v. Cuomo ,
525 F. Supp. 3d 382, 402–403 (NDNY 2021). That threat, the
court said, crossed a First Amendment line. The District Court
concluded that Vullo was not entitled to qualified immunity at the
motion-to-dismiss stage.

															The Second Circuit reversed. It concluded that
Vullo’s alleged actions constituted permissible government speech
and legitimate law enforcement, and not unconstitutional coercion.
The Second Circuit determined that the Guidance Letters and
accompanying press release were not unconstitutionally coercive
because they “were written in an even-handed, nonthreatening tone
and employed words intended to persuade rather than intimidate.” 49
F. 4th, at 717. The court found it significant that Vullo “did not
refer to any pending investigations or possible regulatory action”
and alluded only to business-related risks “amid growing public
concern over gun violence.” Ibid. As for Vullo’s meeting
with the Lloyd’s executives, the court admitted that the
allegations presented a “closer call.” Id ., at 718.
Nonetheless, just as with the consent decrees, it found that Vullo
“was merely carrying out her regulatory responsibilities.” Id., at 718–719. The Second Circuit also held that, even if
the complaint stated a First Amendment violation, the law was not
clearly established, and so Vullo was entitled to qualified
immunity.

															The NRA filed a petition for a writ of
certiorari, seeking either summary reversal or review of the First
Amendment and qualified immunity holdings. This Court granted
certiorari on only the first question presented whether the
complaint states a First Amendment claim against Vullo. See 601
U. S. ___ (2023).[ 3 ]

															II

															As discussed below, Vullo was free to
criticize the NRA and pursue the conceded violations of New York
insurance law. She could not wield her power, however, to threaten
enforcement actions against DFS-regulated entities in order to
punish or suppress the NRA’s gun-promotion advocacy. Because the
complaint plausibly alleges that Vullo did just that, the Court
holds that the NRA stated a First Amendment violation.

															A

															At the heart of the First Amendment’s Free
Speech Clause is the recognition that viewpoint discrimination is
uniquely harmful to a free and democratic society. The Clause
prohibits government entities and actors from “abridging the
freedom of speech.” When government officials are “engaging in
their own expressive conduct,” though, “the Free Speech Clause has
no application.” Pleasant Grove City v. Summum , 555 U.S.
460 , 467 (2009). The government can “ ‘say what it
wishes’ ” and “select the views that it wants to express.” Id. , at 467–468 (quoting Rosenberger v. Rector and
Visitors of Univ. of Va. , 515 U.S.
819 , 833 (1995)). That makes sense; the government could barely
function otherwise. “When a government entity embarks on a course
of action, it necessarily takes a particular viewpoint and rejects
others,” and thus does not need to “maintain viewpoint-neutrality
when its officers and employees speak about that venture.” Matal v. Tam , 582 U.S. 218, 234 (2017).

															A government official can share her views freely
and criticize particular beliefs, and she can do so forcefully in
the hopes of persuading others to follow her lead. In doing so, she
can rely on the merits and force of her ideas, the strength of her
convictions, and her ability to inspire others. What she cannot do,
however, is use the power of the State to punish or suppress
disfavored expression. See Rosenberger , 515 U. S., at
830 (explaining that governmental actions seeking to suppress a
speaker’s particular views are presumptively unconstitutional). In
such cases, it is “the application of state power which we are
asked to scrutinize.” NAACP v. Alabama ex rel.
Patterson , 357 U.S.
449 , 463 (1958).

															In Bantam Books , this Court explored the
distinction between permissible attempts to persuade and
impermissible attempts to coerce. There, a state commission used
its power to investigate and recommend criminal prosecution to
censor publications that, in its view, were
“ ‘objectionable’ ” because they threatened “youthful
morals.” 372 U. S., at 59–62, 71. The commission sent official
notices to a distributor for blacklisted publications that
highlighted the commission’s “duty to recommend to the Attorney
General” violations of the State’s obscenity laws. Id ., at
62–63, and n. 5. The notices also informed the distributor
that the lists of blacklisted publications “were circulated to
local police departments,” and that the distributor’s cooperation
in removing the publications from the shelves would
“ ‘eliminate the necessity’ ” of any referral for
prosecution. Ibid. A local police officer also conducted
followup visits to ensure compliance. In response, the distributor
took “steps to stop further circulation of copies of the listed
publications” out of fear of facing “ ‘a court action.’ ” Id ., at 63.

															The publishers of the blacklisted publications
sued the commission, alleging that this scheme of informal
censorship violated their First Amendment rights. The commission
responded that “it d[id] not regulate or suppress obscenity but
simply exhort[ed] booksellers and advise[d] them of their legal
rights.” Id ., at 66. This Court sided with the publishers,
holding that the commission violated their free-speech rights by
coercing the distributor to stop selling and displaying the listed
publications.

															The Court explained that the First Amendment
prohibits government officials from relying on the “threat of
invoking legal sanctions and other means of coercion
. . . to achieve the suppression” of disfavored speech. Id ., at 67. Although the commission lacked the “power to
apply formal legal sanctions,” the distributor “reasonably
understood” the commission to threaten adverse action, and thus the
distributor’s “compliance with the [c]ommission’s directives was
not voluntary.” Id ., at 66–68. To reach this conclusion, the
Court considered things like: the commission’s coordination with
law enforcement and its authority to refer matters for prosecution;
the notices themselves, which were “phrased virtually as orders”
containing “thinly veiled threats to institute criminal
proceedings” if the distributor did not come around; and the
distributor’s reaction to the notices and followup visits. Id., at 68.

															Since Bantam Books , the Courts of Appeals
have considered similar factors to determine whether a challenged
communication is reasonably understood to be a coercive threat.
Take the decision below, for example. The Second Circuit purported
to consider: “(1) word choice and tone; (2) the existence of
regulatory authority; (3) whether the speech was perceived as a
threat; and, perhaps most importantly, (4) whether the speech
refers to adverse consequences.” 49 F. 4th, at 715 (citations
omitted).[ 4 ] Other Circuits
have taken similarly fact-intensive approaches, utilizing a
multifactor test or a totality-of-the-circumstances analysis. See, e . g ., Missouri v. Biden , 83 F. 4th 350,
380 (CA5 2023) (“[T]o help distinguish permissible persuasion from
impermissible coercion, we turn to the Second (and Ninth) Circuit’s
four-factor test”); Kennedy v. Warren , 66 F. 4th
1199, 1207 (CA9 2023) (applying the Second Circuit’s “useful
non-exclusive four-factor framework”); Backpage.com, LLC v. Dart , 807 F.3d 229, 230–232 (CA7 2015) (considering the same
factors as part of a totality-of-the-circumstances analysis); R. C. Maxwell Co. v. New Hope , 735 F.2d 85, 88
(CA3 1984) (same). The Courts of Appeals that employ a multifactor
test agree that “[n]o one factor is dispositive.” 49 F. 4th, at
715; accord, Kennedy , 66 F. 4th, at 1210 (explaining that
the absence of direct regulatory authority is not dispositive).

															Ultimately, Bantam Books stands for the
principle that a government official cannot do indirectly what she
is barred from doing directly: A government official cannot coerce
a private party to punish or suppress disfavored speech on her
behalf. See, e . g ., 372 U. S., at 67–69; see also Backpage.com , 807 F. 3d, at 231 (holding that the First
Amendment barred a sheriff from “using the power of his office to
threaten legal sanctions against . . . credit-card
companies for facilitating future speech”); Okwedy v. Molinari , 333 F.3d 339 , 344 (CA2 2003) ( per curiam ) (holding
that a religious group stated a First Amendment claim against a
borough president who wrote a letter “contain[ing] an implicit
threat of retaliation” against a billboard company displaying the
group’s disfavored message); cf. Penthouse Int’l, Ltd. v. Meese , 939 F. 2d, 1011, 1016 (CADC 1991) (“[W]hen the
government threatens no sanction—criminal or otherwise—we very much
doubt that the government’s criticism or effort to embarrass the
[intermediary] threatens anyone’s First Amendment rights”).

															B

															The parties and the Solicitor General, who
filed an amicus brief supporting vacatur, agree that Bantam Books provides the right analytical framework for
claims that the government has coerced a third party to violate the
First Amendment rights of another. They also embrace the lower
courts’ multifactor test as a useful, though nonexhaustive, guide.
Rightly so. Considerations like who said what and how, and what
reaction followed, are just helpful guideposts in answering the
question whether an official seeks to persuade or, instead, to
coerce. Where the parties differ is on the application of the Bantam Books framework. The NRA and the Solicitor General
reject the Second Circuit’s application of the framework, while
Vullo defends it. The Court now agrees with the NRA and the
Solicitor General.

															To state a claim that the government violated
the First Amendment through coercion of a third party, a plaintiff
must plausibly allege conduct that, viewed in context, could be
reasonably understood to convey a threat of adverse government
action in order to punish or suppress the plaintiff ’s speech.
See 372 U. S., at 67–68. Accepting the well-pleaded factual
allegations in the complaint as true, the NRA plausibly alleged
that Vullo violated the First Amendment by coercing DFS-regulated
entities into disassociating with the NRA in order to punish or
suppress the NRA’s gun-promotion advocacy.

															Consider first Vullo’s authority, which serves
as a backdrop to the NRA’s allegations of coercion. The power that
a government official wields, while certainly not dispositive, is
relevant to the objective inquiry of whether a reasonable person
would perceive the official’s communication as coercive. See id ., at 66–67. Generally speaking, the greater and more
direct the government official’s authority, the less likely a
person will feel free to disregard a directive from the official.
For example, imagine a local affinity group in New York that
receives a strongly worded letter. One would reasonably expect that
organization to react differently if the letter came from, say, the
U. S. Attorney for the Southern District of New York than if
it came from an out-of-state school board.

															As DFS superintendent, Vullo had direct
regulatory and enforcement authority over all insurance companies
and financial service institutions doing business in New York. See
N. Y. Fin. Servs. Law Ann. §§202, 301. Just like the
commission in Bantam Books , Vullo could initiate
investigations and refer cases for prosecution. Indeed, she could
do much more than that. Vullo also had the power to notice civil
charges and, as this case shows, enter into consent decrees that
impose significant monetary penalties.

															Against this backdrop, consider Vullo’s
communications with the DFS-regulated entities, particularly with
Lloyd’s. According to the NRA, Vullo brought a variety of
insurance-law violations to the Lloyd’s executives’ attention
during a private meeting in February 2018. The violations included
technical infractions that allegedly plagued the affinity insurance
market in New York and that were unrelated to any NRA business.
App. to Pet. for Cert. 199–200, Complaint ¶21; accord, id., at 207–208, ¶¶36–37; id ., at 223, ¶69. Vullo allegedly said
she would be “less interested in pursuing the[se] infractions
. . . so long as Lloyd’s ceased providing insurance to
gun groups, especially the NRA.” Id ., at 199–200, ¶21. Vullo
therefore wanted Lloyd’s to disassociate from all gun groups,
although there was no indication that such groups had unlawful
insurance policies similar to the NRA’s. Vullo also told the
Lloyd’s executives she would “focus” her enforcement actions
“solely” on the syndicates with ties to the NRA, “and ignore other
syndicates writing similar policies.” Id ., at 223, ¶69. The
message was therefore loud and clear: Lloyd’s “could avoid
liability for [unrelated] infractions” if it “aided DFS’s campaign
against gun groups” by terminating its business relationships with
them. Ibid. As alleged, Vullo’s communications with Lloyd’s
can be reasonably understood as a threat or as an inducement.
Either of those can be coercive. As Vullo concedes, the “threat
need not be explicit,” Brief for Respondent 47, and as the
Solicitor General explains, “[t]he Constitution does not
distinguish between ‘comply or I’ll prosecute’ and ‘comply and I’ll
look the other way,’ ” Brief for United States as Amicus
Curiae 18, n. 7. So, whether analyzed as a threat or as an
inducement, the conclusion is the same: Vullo allegedly coerced
Lloyd’s by saying she would ignore unrelated infractions and focus
her enforcement efforts on NRA-related business alone, if Lloyd’s
ceased underwriting NRA policies and disassociated from
gun-promotion groups.

															The reaction from Lloyd’s further confirms the
communications’ coercive nature. Cf. Bantam Books , 372
U. S., at 63, 68 (noting that the distributor’s “reaction on
receipt of a notice was to take steps to stop further circulation
of copies of the listed publications”). At the meeting itself,
Lloyd’s “agreed that it would instruct its syndicates to cease
underwriting firearm-related policies and would scale back its
NRA-related business.” App. to Pet. for Cert. 223, Complaint ¶69.
Minutes from a subsequent board of directors’ meeting reveal that
Lloyd’s thought “the DFS investigation had transformed the gun
issue into ‘a regulatory, legal[,] and compliance matter.’ ” 2
App. to Pet. for Cert. 29 (Sealed). That reaction is consistent
with Lloyd’s public announcement that it had directed its
syndicates to “terminate all insurance related to the NRA and not
to provide any insurance to the NRA in the future.” App. to Pet.
for Cert. 224, Complaint ¶72; accord, id ., at 306, ¶20
(consent decree memorializing commitment not to underwrite, or
participate in, NRA-endorsed programs).

															Other allegations, viewed in context, reinforce
the NRA’s First Amendment claim. Consider the April 2018 Guidance
Letters and accompanying press release, which Vullo issued on
official letterhead. Cf. Bantam Books , 372 U. S., at
61–63, and n. 5 (discussing notice issued in “official
Commission stationery”). Just like in her meeting with the Lloyd’s
executives, here too Vullo singled out the NRA and other
gun-promotion organizations as the targets of her call to action.
This time, the Guidance Letters reminded DFS-regulated entities of
their obligation to consider their “reputational risks,” and then
tied that obligation to an encouragement for “prompt actio[n] to
manag[e] these risks.” App. to Pet. for Cert. 248, 251. Evocative
of Vullo’s private conversation with the Lloyd’s executives a few
weeks earlier, the press release revealed how to manage the risks
by encouraging DFS-regulated entities to “ ‘discontinu[e]
their arrangements with the NRA,’ ” just like Chubb did when
it stopped underwriting Carry Guard. App. to Pet. for Cert. 244. A
follow-on tweet from Cuomo reaffirmed the message: Businesses in
New York should “ ‘consider their reputations’ ” and
“ ‘revisit any ties they have to the NRA,’ ” which he
called “ ‘an extremist organization.’ ” Id ., at
213, ¶51.

															In sum, the complaint, assessed as a whole,
plausibly alleges that Vullo threatened to wield her power against
those refusing to aid her campaign to punish the NRA’s
gun-promotion advocacy. If true, that violates the First
Amendment.

															C

															In holding otherwise, the Second Circuit found
that: (1) the “Guidance Letters and Press Release are clear
examples of permissible government speech”; and (2) the Lloyd’s
meeting was “legitimate enforcement action” in which Vullo was
“merely carrying out her regulatory responsibilities” by offering
“leniency in the course of negotiating a resolution of the apparent
insurance law violations.” 49 F. 4th, at 717–719. The Second
Circuit could only reach this conclusion by taking the allegations
in isolation and failing to draw reasonable inferences in the NRA’s
favor in violation of this Court’s precedents. Cf. Iqbal ,
556 U. S., at 678–679; Bell Atlantic Corp. v. Twombly , 550 U.S.
544 , 570 (2007).

															For example, the Second Circuit failed to
analyze the Guidance Letters and press release against the backdrop
of other allegations in the complaint, including the Lloyd’s
meeting. Moreover, as discussed above, the complaint alleges that
Vullo made a not-so-subtle, sanctions-backed threat to Lloyd’s to
cut all business ties with the NRA and other gun-promotion groups,
although there was no sign that other gun groups also had unlawful
insurance policies. See supra , at 13. It is also relevant
that Vullo made this alleged threat in a meeting where she
presented her “desire to leverage [her] powers to combat the
availability of firearms, including specifically by weakening the
NRA.” App. to Pet. for Cert. 221, Complaint ¶67; id ., at
223, ¶69 (alleging Vullo hoped to enlist DFS-regulated entities in
“aid[ing] DFS’s campaign against gun groups”). Given the obligation
to draw reasonable inferences in the NRA’s favor and consider the
allegations as a whole, the Second Circuit erred in reading the
complaint as involving only individual instances of “permissible
government speech” and the execution of Vullo’s “regulatory
responsibilities.” 49 F. 4th, at 717–719.

															For the same reasons, this Court cannot simply
credit Vullo’s assertion that “pursuing conceded violations of the
law,” Brief for Respondent 29, is an “ ‘obvious alternative
explanation’ ” for her actions that defeats the plausibility
of any coercive threat raising First Amendment concerns, id ., at 37, 40, 42 (quoting Iqbal , 556 U. S., at
682). Of course, discovery in this case might show that the
allegations of coercion are false, or that certain actions should
be understood differently in light of newly disclosed evidence. At
this stage, though, the Court must assume the well-pleaded factual
allegations in the complaint are true.[ 5 ]

															Moreover, the conceded illegality of the
NRA-endorsed insurance programs does not insulate Vullo from First
Amendment scrutiny under the Bantam Books framework. Indeed,
the commission in that case targeted the distribution and display
of material that, in its view, violated the State’s obscenity laws.
Nothing in that case turned on the distributor’s compliance with
state law. On the contrary, Bantam Books held that the
commission violated the First Amendment by invoking legal sanctions
to suppress disfavored publications, some of which may or may not
contain protected speech ( i . e ., nonobscene material).
See 372 U. S., at 64, 67. Here, too, although Vullo can pursue
violations of state insurance law, she cannot do so in order to
punish or suppress the NRA’s protected expression. So, the
contention that the NRA and the insurers violated New York law does
not excuse Vullo from allegedly employing coercive threats to
stifle gun-promotion advocacy.

															Vullo next argues that this case does not
involve unconstitutional coercion because her challenged actions in
fact targeted business practices and relationships, which qualify
as “nonexpressive activity.” Brief for Respondent 32. The argument
is misplaced. That Vullo “regulate[d]” business activities stemming
from the NRA’s “relationships with insurers and banks,” ibid. , does not change the allegations that her actions were
aimed at punishing or suppressing speech. In Bantam Books ,
the commission interfered with the business relationship between
the distributor and the publishers in order to suppress the
publishers’ disfavored speech. 372 U. S., at 66–71. Similarly,
in Backpage.com , a sheriff interfered with a website’s
business relationships with payments-service providers in order to
eliminate the website’s “adult section” (if not the website
itself ). 807 F. 3d, at 230–232, 235–236. In that case,
the sheriff wanted to “suffocat[e]” the website, “depriving the
company of ad revenues by scaring off its payments-service
providers.” Id ., at 231. “The analogy,” the Seventh Circuit
explained, “is to killing a person by cutting off his oxygen supply
rather than by shooting him.” Ibid. So too here. One can
reasonably infer from the complaint that Vullo coerced
DFS-regulated entities to cut their ties with the NRA in order to
stifle the NRA’s gun-promotion advocacy and advance her views on
gun control. See, e . g ., supra , at 12–15; App.
to Pet. for Cert. 221, 230–235, Complaint ¶¶67, 87–105. Vullo knew,
after all, that the NRA relied on insurance and financing “to
disseminate its message.” Id ., at 231, ¶92; see id .,
at 203–204, ¶¶28–29.[ 6 ]

															Lastly, Vullo falls back on the argument that a
ruling in the NRA’s favor would interfere with the government’s
ability to function properly. She claims that the NRA’s position,
if accepted, would stifle government speech and hamper legitimate
enforcement efforts. This argument falls flat for the simple reason
that it requires the Court to accept Vullo’s limited reading of the
complaint. The Court does not break new ground in deciding this
case. It only reaffirms the general principle from Bantam
Books that where, as here, the complaint plausibly alleges
coercive threats aimed at punishing or suppressing disfavored
speech, the plaintiff states a First Amendment claim.

															III

															The NRA’s allegations, if true, highlight the
constitutional concerns with the kind of intermediary strategy that
Vullo purportedly adopted to target the NRA’s advocacy. Such a
strategy allows government officials to “expand their regulatory
jurisdiction to suppress the speech of organizations that they have
no direct control over.” Brief for First Amendment Scholars as Amici Curiae Supporting Petitioner 8. It also allows
government officials to be more effective in their
speech-suppression efforts “[b]ecause intermediaries will often be
less invested in the speaker’s message and thus less likely to risk
the regulator’s ire.” Ibid. The allegations here bear this
out. Although “the NRA was not even the directly regulated party,”
Brief for Respondent 32, Vullo allegedly used the power of her
office to target gun promotion by going after the NRA’s business
partners. Insurers in turn followed Vullo’s lead, fearing
regulatory hostility.

															Nothing in this case gives advocacy groups like
the NRA a “right to absolute immunity from [government]
investigation,” or a “right to disregard [state or federal] laws.” Patterson , 357 U. S., at 463. Similarly, nothing here
prevents government officials from forcefully condemning views with
which they disagree. For those permissible actions, the
Constitution “relies first and foremost on the ballot box, not on
rules against viewpoint discrimination, to check the government
when it speaks.” Shurtleff v. Boston , 596 U.S. 243,
252 (2022). Yet where, as here, a government official makes
coercive threats in a private meeting behind closed doors, the
“ballot box” is an especially poor check on that official’s
authority. Ultimately, the critical takeaway is that the First
Amendment prohibits government officials from wielding their power
selectively to punish or suppress speech, directly or (as alleged
here) through private intermediaries.

															*  *  *

															For the reasons discussed above, the Court
holds that the NRA plausibly alleged that Vullo violated the First
Amendment by coercing DFS-regulated entities to terminate their
business relationships with the NRA in order to punish or suppress
the NRA’s advocacy.

															The judgment of the U. S. Court of Appeals
for the Second Circuit is vacated, and the case remanded for
further proceedings consistent with this opinion.[ 7 ]

															It is so ordered. Notes 1 According to the
complaint, other affinity organizations offered similar insurance
policies, including the New York State Bar Association, the New
York City Bar, and the New York State Psychological Association,
among others. See App. to Pet. for Cert. 207–208, Complaint
¶36. 2 The financial-regulatory
term “reputational risk” is “ ‘the risk to current or
projected financial condition and resilience arising from negative
public opinion,’ which ‘may impair a bank’s competitiveness by
affecting its ability to establish new relationships or services or
continue servicing existing relationships.’ ” Brief for United
States as Amicus Curiae 27–28, and n. 10 (quoting
Office of the Comptroller of the Currency, Comptroller’s Handbook,
Examination Process, Bank Supervision Process 28 (Sept. 2019)). DFS
monitors the reputational risk of regulated institutions because of
its potential effect on market stability. See Brief for Respondent
6. 3 Vullo argues that the
Court must dismiss the case as improvidently granted because the
Court deprived itself of jurisdiction by limiting its review to the
First Amendment question and declining to review the Second
Circuit’s alternative holding that Vullo is entitled to qualified
immunity. See Brief for Respondent 21–24. Not so. In this case,
“[a]n order limiting the grant of certiorari does not operate as a
jurisdictional bar.” Piper Aircraft Co. v. Reyno , 454 U.S.
235 , 247, n. 12 (1981). Because the Second Circuit is free
to revisit the qualified immunity question in light of this Court’s
opinion, the NRA still could obtain “ ‘effectual
relief ’ ” on remand. Chafin v. Chafin , 568 U.S.
165 , 172 (2013). In such circumstances, it cannot be said that
the resolution of the First Amendment question is merely
advisory. 4 The NRA posits a
three-factor test that looks to: (1) the actor’s authority; (2) the
content and purpose of the actor’s communications; and (3) the
reactions of the recipient. Brief for Petitioner 26. The NRA
concedes, however, that its test is the same as the Second
Circuit’s, as it considers the fourth factor in the Second
Circuit’s test of “ ‘whether the speech refers to adverse
consequences’ ” to be an “aspect of the inquiry into the
content and purpose of the communication.” Id ., at 27,
n. 8. 5 Vullo also argues that
she is entitled to absolute prosecutorial immunity for her
enforcement actions. See Brief for Respondent 25–28. Putting aside
whether a financial regulator like Vullo is entitled to such
immunity in the administrative context, because Vullo did not raise
this defense below with respect to the First Amendment claim (or
even with respect to allegations unrelated to the consent decrees),
the Court declines to consider that argument here in the first
instance. 6 Vullo’s boss, Governor
Cuomo, also urged businesses to disassociate with the NRA to put
the organization “into financial jeopardy” and “shut them down.”
App. 21 (Aug. 3, 2018, tweet). 7 On remand, the Second
Circuit is free to reconsider whether Vullo is entitled to
qualified immunity. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 22–842

															_________________

															NATIONAL RIFLE ASSOCIATION OF AMERICA,
PETITIONER v. MARIA T. VULLO

															on writ of certiorari to the united states
court of appeals for the second circuit

															[May 30, 2024]

															Justice Gorsuch, concurring.

															I write separately to explain my understanding
of the Court’s opinion, which I join in full. Today we reaffirm a
well-settled principle: “A government official cannot coerce a
private party to punish or suppress disfavored speech on her
behalf.” Ante, at 11. As the Court mentions, many lower
courts have taken to analyzing this kind of coercion claim under a
four-pronged “multifactor test.” Ibid . These tests, the
Court explains, might serve “as a useful, though nonexhaustive,
guide.” Ante, at 12. But sometimes they might not. Cf. Axon Enterprise, Inc. v. FTC , 598 U.S. 175, 205–207
(2023) (Gorsuch, J., concurring in judgment). Indeed, the Second
Circuit’s decision to break up its analysis into discrete parts and
“tak[e] the [complaint’s] allegations in isolation” appears only to
have contributed to its mistaken conclusion that the National Rifle
Association failed to state a claim. Ante, at 15. Lower
courts would therefore do well to heed this Court’s directive:
Whatever value these “guideposts” serve, they remain “just” that
and nothing more. Ante, at 12. “Ultimately, the critical”
question is whether the plaintiff has “plausibly allege[d] conduct
that, viewed in context, could be reasonably understood to convey a
threat of adverse government action in order to punish or suppress
the plaintiff ’s speech.” Ante, at 12, 19. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 22–842

															_________________

															NATIONAL RIFLE ASSOCIATION OF AMERICA,
PETITIONER v. MARIA T. VULLO

															on writ of certiorari to the united states
court of appeals for the second circuit

															[May 30, 2024]

															Justice Jackson, concurring.

															Applying our decision in Bantam Books,
Inc. v. Sullivan , 372 U.S.
58 (1963), the Court today explains that a “government official
cannot coerce a private party to punish or suppress disfavored
speech on her behalf.” Ante, at 11. I agree. I write
separately to stress the important distinction between government
coercion, on the one hand, and a violation of the First Amendment,
on the other.

															I

															Coercion of a third party can be the means by
which the government violates the First Amendment rights of
another. But the fact of coercion, without more, does not state a
First Amendment claim. Rather, in addition to finding that the
government has crossed a line from persuasion to coercion, courts
must assess how that coercion actually violates a speaker’s First
Amendment rights.

															Our decision in Bantam Books provides one
example of how government coercion of a third party can indirectly
bring about a First Amendment violation. As the majority explains, ante, at 9–10, Bantam Books held that a Rhode Island
commission’s efforts to coerce intermediary book distributors into
pulling certain publications from circulation violated the First
Amendment rights of the books’ publishers, 372 U. S., at
61–62, 66–67. Even though the state commission had not itself
“seized or banned” any books, “the threat of invoking legal
sanctions and other means of coercion, persuasion, and
intimidation” against the distributors “directly and designedly
stopped the circulation of publications in many parts of Rhode
Island.” Id ., at 67–68. Essentially, the State’s threats to
third parties—the distributors—erected through private hands an
“effective state regulation . . . of obscenity.” Id ., at 69. And the government could not escape
responsibility for the distributors’ actions merely because the
commission did not itself seize any books. See id ., at
66–67.

															Notably, however, the government’s coercion of
the distributors into doing its bidding was not—in and of
itself—what offended the First Amendment. Rather, by threatening
those third-party conduits of speech, the state commission had
effectively “subject[ed] the distribution of publications to a
system of prior administrative restraints” lacking the requisite
constitutional safeguards. Id ., at 70. Put another way, by
exerting pressure on a third party, the State had constructed a
“system of informal censorship.” Id ., at 71.

															The lesson of Bantam Books is that “a
government official cannot do indirectly what she is barred from
doing directly.” Ante, at 11. That case does not hold
that government coercion alone violates the First Amendment. And
recognizing the distinction between government coercion and a First
Amendment violation is important because our democracy can function
only if the government can effectively enforce the rules embodied
in legislation; by its nature, such enforcement often involves
coercion in the form of legal sanctions. The existence of an
allegation of government coercion of a third party thus merely
invites, rather than answers, the question whether that coercion
indirectly worked a violation of the plaintiff’s First Amendment
rights.

															II

															Whether and how government coercion of a third
party might violate another party’s First Amendment rights will
depend on the facts of the case. Indeed, under our precedents,
determining whether government action violates the First Amendment
requires application of different doctrines that vary depending on
the circumstances. Different circumstances—who is being coerced to
do what, and why—may implicate different First Amendment
inquiries.

															In Bantam Books and many cases applying
it, the coercion and First Amendment inquiries practically merge.
This is because those cases tend to follow a similar fact pattern:
The plaintiff claims that the government coerced a distributor,
purveyor, or conduit of expression—like a billboard company,
television station, or book retailer—to shut down the speech of
another party that relies on that distributor, purveyor, or conduit
to spread its message.[ 1 ]*
Coercing an entity in the business of disseminating speech to stop
disseminating someone else’s speech obviously implicates the First
Amendment, insofar as it may result in censorship similar to the
prior restraint identified in Bantam Books .

															But, in my view, that censorship theory is an
awkward fit with the facts of this case. According to the
complaint, Vullo coerced various regulated entities to cut business
ties with the National Rifle Association (NRA). See ante, at
3–5. The NRA does not contend that its (concededly unlawful)
insurance products offered through those business relationships
were themselves “speech,” akin to a billboard, a television ad, or
a book. Nor does the complaint allege that Vullo pressured the
printer of American Rifleman (a longstanding NRA periodical) to
stop printing the magazine, or coerced a convention center into
canceling the NRA’s annual meeting. See VDARE Foundation v. Colorado Springs , 11 F. 4th 1151, 1157 (CA10 2021). In
other words, the effect of Vullo’s alleged coercion of regulated
entities on the NRA’s speech is significantly more attenuated here
than in Bantam Books or most decisions applying it. It is,
for instance, far from obvious that Vullo’s conduct toward
regulated entities established “a system of prior administrative
restraints” against the NRA’s expression. Bantam Books , 372
U. S., at 70.

															Of course, as the majority correctly observes,
none of that means that Vullo may target with impunity the NRA’s
“ ‘nonexpressive’ ” activity if she is doing so to punish
the NRA for its expression. See ante, at 17. But it does
suggest that our First Amendment retaliation cases might provide a
better framework for analyzing these kinds of
allegations— i . e ., coercion claims that are not
directly related to the publication or distribution of speech. And,
fortunately for the NRA, the complaint in this case alleges both
censorship and retaliation theories for how Vullo violated the
First Amendment—theories that, in my opinion, deserve separate
analyses.

															“ ‘[A]s a general matter,’ the First
Amendment prohibits government officials from subjecting
individuals to ‘retaliatory actions’ after the fact for having
engaged in protected speech.” Houston Community College
System v. Wilson , 595 U.S. 468, 474 (2022) (quoting Nieves v. Bartlett , 587 U.S. 391, 398 (2019)). “[A]
plaintiff pursuing a First Amendment retaliation claim must show,
among other things, that the government took an ‘adverse action’ in
response to his speech that ‘would not have been taken absent the
retaliatory motive.’ ” Wilson , 595 U. S., at 477
(quoting Nieves , 587 U. S., at 399). Although our
analysis has varied by context, see Lozman v. Riviera
Beach , 585 U.S. 87, 96–99 (2018), we have generally required
plaintiffs claiming First Amendment retaliation to “establish a
‘causal connection’ between the government defendant’s ‘retaliatory
animus’ and the plaintiff’s ‘subsequent injury,’ ” Nieves , 587 U. S., at 398 (quoting Hartman v. Moore , 547 U.S.
250 , 259 (2006)).

															Requiring that causal connection to a
retaliatory motive is important, because “[s]ome official actions
adverse to . . . a speaker might well be unexceptionable
if taken on other grounds.” Id. , at 256. In this case, for
example, analyzing causation matters because much of Vullo’s
alleged conduct, if not done for retaliatory reasons, might
otherwise be legitimate enforcement of New York’s insurance
regulations.

															How a retaliation analysis should proceed in
this case was not addressed below, so the Court rightly leaves that
question unanswered today. But, importantly, any such analysis
requires more than asking simply whether the government’s actions
crossed the threshold from permissible persuasion to impermissible
coercion. The NRA concedes that, at the very least, our
burden-shifting framework from Mt. Healthy City Bd. of Ed. v. Doyle , 429 U.S.
274 (1977), likely applies. See Reply Brief 16–17. Should that
test govern, the NRA would have to plausibly allege that a
retaliatory motive was a “ ‘substantial’ ” or
“ ‘motivating factor’ ” in Vullo’s targeting of the
regulated entities doing business with the NRA. Mt. Healthy ,
429 U. S., at 287. Vullo, in turn, could rebut that allegation
by showing that she would have taken the same action “even in the
absence of the [NRA’s] protected conduct.” Ibid. ; see Lozman , 585 U. S., at 96 (“[E]ven if retaliation might
have been a substantial motive for the board’s action, still there
was no liability unless the alleged constitutional violation was a
but-for cause of the employment termination”).

															*  *  *

															The NRA’s complaint advances both censorship
and retaliation claims, yet the lower courts in this case lumped
these claims together and ultimately focused almost exclusively on
whether Vullo’s conduct was coercive. See ante, at 6–7.
Consequently, the strength of the NRA’s claim under the Mt.
Healthy framework has received little attention thus far. On
remand, the parties and lower courts should consider the censorship
and retaliation theories independently, mindful of the distinction
between government coercion and the ways in which such coercion
might (or might not) have violated the NRA’s constitutional rights.
That analysis can and should likewise consider which First
Amendment framework best captures the NRA’s allegations in this
case. See, e . g ., VDARE , 11 F. 4th, at
1159–1175 (separately analyzing censorship and retaliation
claims). Notes 1 *See, e . g ., Okwedy v. Molinari , 333 F.3d 339 , 340, 342–344 (CA2 2003) ( per curiam )
(billboard company); R. C. Maxwell Co. v. New
Hope , 735 F.2d 85, 85–88 (CA3 1984) (same); American Family
Assn., Inc. v. City and County of San Francisco , 277 F.3d 1114 , 1119–1120 (CA9 2002) (television stations); Kennedy v. Warren , 66 F. 4th 1199, 1204–1205 (CA9
2023) (online book retailer); Penthouse Int’l, Ltd. v. Meese , 939 F.2d 1011, 1013–1016 (CADC 1991) (convenience
stores carrying pornographic magazines); Hammerhead Enterprises,
Inc. v. Brezenoff , 707 F.2d 33, 34–38 (CA2 1983)
(department stores carrying satirical board game); VDARE
Foundation v. Colorado Springs , 11 F. 4th 1151,
1156–1157 (CA10 2021) (resort hosting advocacy group
conference).


U.S. Supreme Court Gong Lum v. Rice, 275 U.S.
78 (1927) Gong Lum v. Rice No. 29 Submitted October 12,
1927 Decided November 21,
1927 275 U.S.
78 ERROR TO THE SUPREME
COURT OF THE STATE OF
MISSISSIPPI Syllabus A child of Chinese blood, born in and a citizen of the United
States, is not denied the equal protection of the law by being
classed by the state among the colored races who are assigned to
public schools separate from those provided for the whites when
equal facilities for education are afforded to both classes. P. 275 U. S.
85 .

															139 Miss. 760 affirmed.

															Error to a judgment of the Supreme Court of Mississippi
reversing a judgment awarding the writ of mandamus. The writ was
applied for in the interest of Martha Lum, a child of Chinese
blood, born in the United States, and was directed to the trustees
of a high school district and the state Superintendent of
Education, commanding them to cease discriminating against her and
to admit her to the privileges of the high school specified, which
was assigned to white children exclusively. Page 275 U. S. 79 MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.

															This was a petition for mandamus filed in the state circuit
court of Mississippi for the First judicial district of Bolivar
County.

															Gong Lum is a resident of Mississippi, resides in the Rosedale
Consolidated High School District, and is the father of Martha Lum.
He is engaged in the mercantile business. Neither he nor she was
connected with the consular service, or any other service, of the
government of China, or any other government at the time of her
birth. Page 275 U. S. 80 She was nine years old when the petition was filed, having been
born January 21, 1915, and she sued by her next friend, Chew How,
who is a native-born citizen of the United States and the State of
Mississippi. The petition alleged that she was of good moral
character, between the ages of 5 and 21 years, and that, as she was
such a citizen and an educable child, it became her father's duty
under the law to send her to school; that she desired to attend the
Rosedale Consolidated High School; that, at the opening of the
school, she appeared as a pupil, but at the noon recess she was
notified by the superintendent that she would not be allowed to
return to the school; that an order had been issued by the board of
trustees, who are made defendants, excluding her from attending the
school solely on the ground that she was of Chinese descent, and
not a member of the white or Caucasian race, and that their order
had been made in pursuance to instructions from the State
Superintendent of Education of Mississippi, who is also made a
defendant.

															The petitioners further show that there is no school maintained
in the district for the education of children of Chinese descent,
and none established in Bolivar County where she could attend.

															The Constitution of Mississippi requires that there shall be a
county common school fund, made up of poll taxes from the various
counties, to be retained in the counties where the same is
collected, and a state common school fund to be taken from the
general fund in the state treasury, which together shall be
sufficient to maintain a common school for a term of four months in
each scholastic year, but that any county or separate school
district may levy an additional tax to maintain schools for a
longer time than a term of four months, and that the said common
school fund shall be distributed among the several counties and
separate school districts in proportion to the number of educable
children in each, to be collected Page 275 U. S. 81 from the data in the office of the State Superintendent of
Education in the manner prescribed by law; that the legislature
encourage by all suitable means the promotion of intellectual,
scientific, moral, and agricultural improvement by the
establishment of a uniform system of free public schools by
taxation or otherwise, for all children between the ages of 5 and
21 years, and. as soon as practicable, establish schools of higher
grade.

															The petition alleged that, in obedience to this mandate of the
constitution, the legislature has provided for the establishment
and for the payment of the expenses of the Rosedale Consolidated
High School, and that the plaintiff, Gong Lum, the petitioner's
father, is a taxpayer and helps to support and maintain the school;
that Martha Lum is an educable child, is entitled to attend the
school as a pupil, and that this is the only school conducted in
the district available for her as a pupil; that the right to attend
it is a valuable right; that she is not a member of the colored
race, nor is she of mixed blood, but that she is pure Chinese; that
she is, by the action of the board of trustees and the state
superintendent, discriminated against directly, and denied her
right to be a member of the Rosedale school; that the school
authorities have no discretion under the law as to her admission as
a pupil in the school, but that they continue without authority of
law to deny her the right to attend it as a pupil. For these
reasons, the writ of mandamus is prayed for against the defendants,
commanding them and each of them to desist from discriminating
against her on account of her race or ancestry, and to give her the
same rights and privileges that other educable children between the
ages of 5 and 21 are granted in the Rosedale Consolidated High
School.

															The petition was demurred to by the defendants on the ground,
among others, that the bill showed on its face that plaintiff is a
member of the Mongolian or yellow race, and Page 275 U. S. 82 therefore not entitled to attend the schools provided by law in
the State of Mississippi for children of the white or Caucasian
race.

															The trial court overruled the demurrer and ordered that a writ
of mandamus issue to the defendants as prayed in the petition.

															The defendants then appealed to the Supreme Court of
Mississippi, which heard the case. Rice v. Gong Lum, 139
Miss. 760. In its opinion, it directed its attention to the proper
construction of § 207 of the state constitution of 1890, which
provides: "Separate schools shall be maintained for children of the
white and colored races."

															The court held that this provision of the constitution divided
the educable children into those of the pure white or Caucasian
race, on the one hand, and the brown, yellow, and black races, on
the other, and therefore that Martha Lum, of the Mongolian or
yellow race, could not insist on being classed with the whites
under this constitutional division. The court said:

															"The legislature is not compelled to provide separate schools
for each of the colored races, and unless and until it does provide
such schools, and provide for segregation of the other races, such
races are entitled to have the benefit of the colored public
schools. Under our statutes, a colored public school exists in
every county and in some convenient district, in which every
colored child is entitled to obtain an education. These schools are
within the reach of all the children of the state, and the
plaintiff does not show by her petition that she applied for
admission to such schools. On the contrary, the petitioner takes
the position that, because there are no separate public schools for
Mongolians, she is entitled to enter the white public schools in
preference to the colored public schools. A consolidated school in
this state is simply a common school conducted as other common
schools are conducted; Page 275 U. S. 83 the only distinction being that two or more school districts
have been consolidated into one school. Such consolidation is
entirely discretionary with the county school board, having
reference to the condition existing in the particular territory.
Where a school district has an unusual amount of territory, with an
unusual valuation of property therein, it may levy additional
taxes. But the other common schools under similar statutes have the
same power."

															"If the plaintiff desires, she may attend the colored public
schools of her district, or, if she does not so desire, she may go
to a private school. The compulsory school law of this state does
not require the attendance at a public school, and a parent under
the decisions of the Supreme Court of the United States has a right
to educate his child in a private school if he so desires. But
plaintiff is not entitled to attend a white public school."

															As we have seen, the plaintiffs aver that the Rosedale
Consolidated High School is the only school conducted in that
district available for Martha Lum as a pupil. They also aver that
there is no school maintained in the district of Bolivar County for
the education of Chinese children, and none in the county. How are
these averments to be reconciled with the statement of the state
supreme court that colored schools are maintained in every county
by virtue of the constitution? This seems to be explained, in the
language of the state supreme court, as follows:

															"By statute it is provided that all the territory of each county
of the state shall be divided into school districts separately for
the white and colored races -- that is to say, the whole territory
is to be divided into white school districts, and then a new
division of the county for colored school districts. In other
words, the statutory scheme is to make the districts, outside of
the separate school districts, districts for the particular race,
white or colored, so that the territorial limits of the school
districts need Page 275 U. S. 84 not be the same, but the territory embraced in a school district
for the colored race may not be the same territory embraced in the
school district for the white race, and vice versa, which system of
creating the common school districts for the two races, white and
colored, do not require schools for each race as such to be
maintained in each district, but each child, no matter from what
territory, is assigned to some school district, the school
buildings being separately located and separately controlled, but
each having the same curriculum, and each having the same number of
months of school term, if the attendance is maintained for the said
statutory period, which school district of the common or public
schools has certain privileges, among which is to maintain a public
school by local taxation for a longer period of time than the said
term of four months under named conditions which apply alike to the
common schools for the white and colored races."

															We must assume, then, that there are school districts for
colored children in Bolivar County, but that no colored school is
within the limits of the Rosedale Consolidated High School
District. This is not inconsistent with there being at a place
outside of that district and in a different district, a colored
school which the plaintiff Martha Lum may conveniently attend. If
so, she is not denied, under the existing school system, the right
to attend and enjoy the privileges of a common school education in
a colored school. If it were otherwise, the petition should have
contained an allegation showing it. Had the petition alleged
specifically that there was no colored school in Martha Lum's
neighborhood to which she could conveniently go, a different
question would have been presented, and this without regard to the
state supreme court's construction of the state constitution as
limiting the white schools provided for the education of children
of the white or Caucasian race. But we do not find the petition to
present such a situation. Page 275 U. S. 85 The case then reduces itself to the question whether a state can
be said to afford to a child of Chinese ancestry, born in this
country and a citizen of the United States, the equal protection of
the laws by giving her the opportunity for a common school
education in a school which receives only colored children of the
brown, yellow, or black races.

															The right and power of the state to regulate the method of
providing for the education of its youth at public expense is
clear. In Cumming v. Richmond County Board of Education, 175 U. S. 528 , 175 U. S. 545 ,
persons of color sued the board of education to enjoin it from
maintaining a high school for white children without providing a
similar school for colored children, which had existed and had been
discontinued. Mr. Justice Harlan, in delivering the opinion of the
Court, said:

															"Under the circumstances disclosed, we cannot say that this
action of the state court was, within the meaning of the Fourteenth
Amendment, a denial by the state to the plaintiffs and to those
associated with them of the equal protection of the laws, or of any
privileges belonging to them as citizens of the United States. We
may add that, while all admit that the benefits and burdens of
public taxation must be shared by citizens without discrimination
against any class on account of their race, the education of the
people in schools maintained by state taxation is a matter
belonging to the respective states, and any interference on the
part of federal authority with the management of such schools
cannot be justified, except in the case of a clear and unmistakable
disregard of rights secured by the supreme law of the land."

															The question here is whether a Chinese citizen of the United
States is denied equal protection of the laws when he is classed
among the colored races and furnished facilities for education
equal to that offered to all, whether white, brown, yellow, or
black. Were this a new question, Page 275 U. S. 86 it would call for very full argument and consideration; but we
think that it is the same question which has been many times
decided to be within the constitutional power of the state
legislature to settle, without intervention of the federal courts
under the federal Constitution. Roberts v. City of Boston, 5 Cush. 198, 206, 208, 209; State ex rel. Garnes v.
McCann, 21 Ohio St.198, 210; People ex rel. King v.
Gallagher, 93 N.Y. 438; People ex rel. Cisco v. School
Board, 161 N.Y. 598; Ward v. Flood, 48 Cal. 36; Wysinger v. Crookshank, 82 Cal. 588, 590; Reynolds v.
Board of Education, 66 Kan. 672; McMillan v. School
Committee, 107 N.C. 609; Cory v. Carter, 48 Ind. 327; Lehew v. Brummell, 103 Mo. 546; Dameron v.
Bayless, 14 Ariz. 180; State ex rel. Stoutmeyer v.
Duffy, 7 Nev. 342, 348, 355; Bertonneau v. Board, 3
Woods, 177, 3 Fed.Cas. 294, Case No. 1,361; United States v.
Buntin, 10 F. 730, 735; Wong Him v. Callahan, 119 F.
381.

															In Plessy v. Ferguson, 163 U.
S. 537 , 163 U. S.
544 -545, in upholding the validity under the Fourteenth
Amendment of a statute of Louisiana requiring the separation of the
white and colored races in railway coaches, a more difficult
question than this, this Court, speaking of permitted race
separation, said:

															"The most common instance of this is connected with the
establishment of separate schools for white and colored children,
which has been held to be a valid exercise of the legislative power
even by courts of states where the political rights of the colored
race have been longest and most earnestly enforced."

															The case of Roberts v. City of Boston, supra, in which
Chief Justice Shaw, of the Supreme Judicial Court of Massachusetts,
announced the opinion of that court upholding the separation of
colored and white schools under Page 275 U. S. 87 a state constitutional injunction of equal protection, the same
as the Fourteenth Amendment, was then referred to, and this Court
continued:

															"Similar laws have been enacted by Congress under its general
power of legislation over the District of Columbia, Rev.Stat.D.C.
§§ 281, 282, 283, 310, 319, as well as by the legislatures of many
of the states, and have been generally, if not uniformly, sustained
by the courts"

															-- citing many of the cases above named.

															Most of the cases cited arose, it is true, over the
establishment of separate schools as between white pupils and black
pupils, but we cannot think that the question is any different, or
that any different result can be reached, assuming the cases above
cited to be rightly decided, where the issue is as between white
pupils and the pupils of the yellow races. The decision is within
the discretion of the state in regulating its public schools, and
does not conflict with the Fourteenth Amendment.

															The judgment of the Supreme Court of Mississippi is Affirmed.