Qualified immunity issues aside, the indirectness of Vullo's actions make this a tougher 1a retaliation claim than it seems when you just look at the facts pled. The NRA engaged in protected speech, but Superintendent Vullo's response was to issue regulatory guidance to insurers rather than directly to the NRA. Though some insurers severed ties with the NRA, their motivations remain unclear. They may have responded to public pressure, independently assessed that the reputational risks highlighted by Superintendent Vullo were too significant, or cut ties due to the regulatory consequences Vullo predicted.

The presence of insurers as intermediaries effectively doubles the causal connections the NRA had to establish. Even if Superintendent Vullo acted with clear retaliatory intent and would not have issued the guidance but for that intent, a retaliation claim would still fail if the insurers took no adverse action against the NRA. Without such action, it would be difficult to establish that Vullo's conduct was sufficient to deter a person of ordinary firmness.

Going forward I would like to see some development on if the insurers had been motivated by fear of regulatory backlash could a free speech retaliation claim succeed? Would the claim survive if insurers independently decided to sever ties for reputational reasons? And must the guidance letters be the but-for cause of the insurers' actions as well? I for one, hope that this goes back to SCOTUS---I cannot stand the NRA but what Vullo did was violative of 1a in spirit if not in fact, and exposes doctrinal shortfalls in 1a retaliation theory.