High Court Is Asked to Defend First Amendment Rights Against Public Sector Retaliation

Wen Fa
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Posted: Oct 18, 2016 12:01 AM
High Court Is Asked to Defend First Amendment Rights Against Public Sector Retaliation

Freedom of speech – freedom to voice your opinions – must also include freedom from government retribution for exercising that right. The First Amendment would have little meaning if government can penalize people for saying things that are controversial or that officials don’t agree with.

The Constitution entrusts the judiciary with enforcing these guarantees. But what happens if courts shirk this duty and respond to government violations with a disinterested shrug?

This is the question that Bob Bennie, a Nebraska financial planner and member of the Tea Party in the Cornhusker State, is posing in an appeal to the U.S. Supreme Court.

Bennie was targeted by state financial regulators over his political opinions. A federal district court and the Eighth U.S. Circuit Court of Appeals agreed that the regulators were in the wrong. Nevertheless, they gave the agency a pass; in fact, the appellate court essentially rubber-stamped the trial court’s findings in favor of the wrongdoers.

Now, Bennie is asking the Supreme Court to take his case and instruct all courts to be more vigilant in defense of the First Amendment right to speak your mind – and the right not to be punished by public officials for doing so.

Bob Bennie is a successful professional who has been included in Barron’s list of top financial advisors. But it was his appearance in another kind of article – a political news story in the Lincoln Journal Star – that drew regulators’ attention. A 2010 article on the Tea Party quoted Bennie calling President Obama a “communist” and an “evil man.” Not long after, he and his employer, LPL Financial, started receiving menacing phone calls from the Nebraska Department of Banking and Finance. Regulators asked LPL whether the company had policies that it could use to limit Bennie’s speech. They threatened that “the Department may invoke whatever administrative action deemed necessary and appropriate under its authority against both Mr. Bennie and/or LPL Financial to insure compliance.” And they asked LPL to “impose heightened supervision, conduct unannounced audits, and levy other sanctions” to provide them with “some comfort.”

Although LPL initially objected to what it called “regulation by harassment,” it eventually gave way to the demands and terminated Bennie.

Shocked, he submitted a public records request, suspecting he was the victim of an ideological vendetta. His suspicions were borne out as he uncovered a string of disturbing emails. Regulators had joked about wanting to “hang [Bennie] high” because of his political views, and hoped Bennie would “hang himself” with his employer.

To protect against further government attacks, he limited his Tea Party involvement and toned down his comments about politicians. But he also filed a federal civil rights lawsuit against the regulators who had put a target on his back.

The district court agreed that they had, indeed, been motivated by his political comments, and that their conduct was inexcusable. But – incredibly – the court went on to excuse it. Like an O. Henry novel, the court’s opinion contained an odd twist, involving the legal test for whether a plaintiff may prevail in such cases — i.e., would a person of “ordinary firmness” be chilled in the exercise of First Amendment rights by the government’s retaliatory actions? Somehow, the court concluded that the tormenting of Bennie would not chill the average person of “ordinary firmness.” The court came to this determination despite evidence that Bennie subsequently muted his comments and the fact he was let go from LPL after the state began pressuring the company.

The surreal character of the case was compounded on appeal. The Eighth Circuit panel agreed that Bennie had been hounded for political reasons. But the 2-1 appellate majority also agreed with the trial court in denying any relief. Over a strong dissent, the majority held that the appellate court had no duty to engage in an independent investigation, but could rely on the trial court’s record and conclusions in the absence of any indication it was “clearly wrong.”

This laid-back approach by the Eighth Circuit is the focus of Bennie’s petition for certiorari to the Supreme Court. Filed earlier this month by attorneys with Pacific Legal Foundation, it points out that other appellate circuits take a less passive approach, and argues that, in such First Amendment cases, all appellate courts should be required to independently determine whether constitutional rights have been violated and restitution is owed.

Indeed, a rigorous investigation of the facts and the law by appellate courts is the only way to ensure that First Amendment protections are applied consistently. When appellate courts take a deferential approach to lower court decisions, the result could be different levels of enforcement from one district court jurisdiction to the next. First Amendment protections shouldn’t vary by what town or judicial district you live in. Rather, the right to “robust, wide-open, and uninhibited” speech should be consistently protected by all judges — trial and appellate.

It should go without saying that you don’t have to agree with Bob Bennie’s politics to grasp the importance of the principles he is fighting for in this case. If we value First Amendment freedoms, government cannot be permitted to retaliate against people for using those freedoms; and when such abuses are alleged, every court must do its job – fully, vigorously and independently – to protect victims and hold violators to account.

Wen Fa is an attorney with Pacific Legal Foundation. PLF represents Bob Bennie, free of charge, in asking the Supreme Court to hear his case.