First Amendment Retaliation

IJ Clients Reflect The Many People Across The Country Who Face First Amendment Retaliation From Government Officials

Sylvia Gonzalez—a seventy-two-year-old retiree—ran for her city council in Castle Hills, Texas hoping to give back to her community by shaking things up. Her first act in office was to support a petition calling for the removal of a city manager who was criticized for mistreating his employees and failing to address citizens’ concerns like fixing the streets. The allies of the city manager—the mayor, police chief, and a special investigator—had a different idea. They conspired to punish Sylvia for challenging the city manager, including by accusing Sylvia of stealing the very petition she championed and throwing her in jail for it. 

The next year and 1,400 miles away in East Cleveland, Ohio, William Fambrough was using his van as a sound truck to broadcast campaign messages and display campaign signs to support his friend in her bid to become mayor on an anti-corruption and police-reform platform. The incumbent mayor and his allies in the city’s law department and police force did not appreciate the political competition or criticism. They harassed William for months, eventually towing and disabling his van based on a parking ordinance the city never enforced. One of the city’s lawyers later openly admitted that the trouble William faced was because of his political activity.

IJ took on both Sylvia’s and William’s cases to fight back to protect their First Amendment speech rights against government retaliation. Sadly, their stories are not unique or rare. IJ has also represented Wisconsin small farmers who faced retaliatory code enforcement for criticizing the town board, a Texas citizen journalist arrested for documenting the police, a Detroit man prosecuted in retaliation for bringing a civil-rights lawsuit, Ohio and Louisiana residents arrested for posting social media jokes about their local police departments, Missouri parents investigated for child neglect after threatening to sue a county after a cop sexually assaulted their child, a Minnesota road-repair company accused of violating a one-hour-old road weight-limit by a civil engineer with a personal grudge, an Idaho woman who faced retaliatory code enforcement when she spoke out to the press in support of her right to live in a small home, and victims of retaliatory and meritless defamation suits from local officials they criticized.

These are just a few examples of the censorship by retaliation that permeates communities across this country.  IJ has and will continue to fight this unconstitutional practice too often deployed by government officials to target their critics.

Punishing People After They Speak Out Has Become a Backdoor Way To Silence and Intimidate Government Critics.  IJ Is Fighting To Change That.

Although suing the government is always an uphill battle, the path is relatively clear for asking courts to block a law that openly censors speech. One would think it would be the same for First Amendment retaliation claims because it has been clear since the Supreme Court’s 1977 decision in Mt. Healthy City School Board of Education v. Doyle that retaliating against speech is just as unconstitutional as passing a law against that speech.

But when the government officials use laws that don’t restrict speech on their face as a pretext to punish people’s speech—like charging Sylvia Gonzalez with trying to secret away her petition, rather than preventing Sylvia from petitioning in the first place—it’s a procedural morass for victims to enforce their First Amendment rights in court. Because a victim of retaliation will almost always know their rights have been violated only after the government has taken action against them, they have to sue for damages. That triggers a raft of judge-made governmental immunities, including qualified immunity, prosecutorial immunity, municipal immunity, and federal immunity.

If victims pay fines for retaliatory citations or plead guilty to minor retaliatory charges in order to avoid the far more expensive legal fees involved in fighting them, the government will say they forfeited any civil-rights claims. And if the retaliation victim gets over all those hurdles, the courts have invented giant loopholes in the First Amendment for retaliatory prosecutions and arrests that let the censorious government officials make up bogus reasons for their retaliation after the fact, rather than looking at what the real reason was.

The First Amendment deserves better, and IJ is the organization, with our clients, leading the fight across the country to close this backdoor to censorship and ensure that the First Amendment is more than just words on a page.