Your right to speak freely - to criticize the government and government officials!
The First Amendment guarantees an individual the right to speak freely, including the right to criticize the government and government officials. To protect that right, public officials are prohibited from retaliating against individuals who criticize them. Fear of retaliation may chill an individual’s speech, and, therefore, permit the government to “‘produce a result which [it] could not command directly.'”
Trulock v. Freeh, 275 F.3d 391, 404 (4th Cir. 2001),
Needed for a § 1983 1st Amendment Claim
A First Amendment retaliation claim under Section 1983 consists of three elements:
- the plaintiff engaged in constitutionally protected First Amendment activity such as speech,
- the defendants’ action caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in the protected activity, and
- there was a causal relationship between the plaintiff’s protected activity and the defendants’ conduct.”
Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000).
A threat intimating punishment or adverse action violates an individual's 1st Amendment rights.
In Suarez, the Fourth Circuit held “that a public official’s retaliatory action in the nature of speech that threatens, coerces, or intimidates, intimating that punishment, sanction, or adverse regulatory action will imminently follow, establishes a violation of an individual’s First Amendment rights.” Suarez Corp. Indus. v. McGraw 202 F.3d at 687; See also Blankenship v. Manchin, 471 F.3d 523, 533 (4th Cir. 2006). That a public official’s speech includes a threat, coercion, or intimidation represents a bright line. Id. at 533
Clearly Established Law - No Qualified Immunity
The Fourth Circuit couldn’t be clearer, “The general proposition that a government official may not retaliate against a citizen for the exercise of a constitutional right is clearly established law, per Trulock. The specific right at issue here, the right to be free of threats of imminent, adverse regulatory action due to the exercise of the right to free speech, was clearly established by this Court in Suarez.” Blankenship v. Manchin, 471 F.3d 523, 533 (4th Cir. 2006).
“[i]t is well established that a public official may not misuse his power to retaliate against an individual for the exercise of a valid constitutional right.” Trulock, 275 F.3d at 405 (citing Suarez, 202 F.3d at 685).
Chilling of Speech
A § 1983 retaliation plaintiff must demonstrate that the defendant’s actions had some adverse impact on the exercise of the plaintiff’s constitutional rights. Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000) This is an objective test – an objective inquiry into whether “a similarly situated person of ‘ordinary firmness’ reasonably would be chilled by the government conduct in light of the circumstances presented in the particular case.” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005).
It’s not enough that the Government might subject a person to ridicule–the test is whether the Government threatens or takes action against which an individual may not use the marketplace of ideas to shield himself from the adverse consequences. Blankenship v. Manchin, 471 F.3d 523, 532 (4th Cir. 2006) citing McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 162 L. Ed. 2d 729, 125 S. Ct. 2722, 2747 (2005) (O’Connor, J., concurring) (” In the marketplace of ideas, the government has vast resources and special status.”); Finzer v. Barry, 255 U.S. App. D.C. 19, 798 F.2d 1450, 1493 (D.C. Cir. 1986) (Wald, J., dissenting) (“The driving concept of the first amendment to promote a marketplace of ideas is twisted out of shape when, through governmental action, only one side of the debate is permitted access to the premium selling booth.”), aff’d in part, rev’d in part sub nom. Boos v. Barry, 485 U.S. 312, 108 S. Ct. 1157, 99 L. Ed. 2d 333 (1988).
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