This summer, Erica and Zach Mallory of Eagle, Wisconsin, scored an important victory for the freedom to speak out against government abuses. A federal court ruled for them and for IJ in our challenge to unconstitutional retaliation from local government officials who didn’t like the Mallorys’ criticism of their bad behavior. The judge ordered Eagle to stop enforcement actions against the couple while their case continues.
Back in November 2020, IJ stepped in to help Erica and Zach, who own a family farm in Eagle, a small town in southeastern Wisconsin. The Mallorys started speaking out against actions by local government there when they noticed neighbors being treated unfairly. Unhappy with these criticisms, town officials soon came after the Mallorys, issuing citations for petty code violations like patches of grass being too tall and an unpermitted flower box. The Mallorys tried to comply with the ordinances enforced against them, making numerous changes to their property. The town wouldn’t relent; instead, it repeatedly inspected the Mallorys’ farm and threatened them with tens of thousands of dollars in fines.
So the Mallorys joined with IJ to hold the town accountable for its retaliatory, unconstitutional ordinance enforcement practices. Eagle’s actions violate the First Amendment’s protections against government retaliation, and the town’s enforcement methods violate due process. For instance, Eagle relies on an hourly paid law firm to enforce its code, then passes its hefty legal bills on to accused town residents. The town also begins racking up fees against residents without any proof that the violations it alleges actually occurred.
The Mallorys’ case began in a Wisconsin state court but was soon transferred to a federal district court, where the Mallorys asked for protection from the town’s abuses while their case is ongoing by requesting a preliminary injunction. The town, meanwhile, asked the court to dismiss the Mallorys’ case altogether.
In August, the court granted our request for a preliminary injunction, prohibiting Eagle officials from entering the Mallorys’ property or calculating fines and fees while the case continues. And it mostly denied the town’s request for the Mallorys’ claims to be dismissed. The court ruled that the Mallorys’ retaliation claim will proceed in federal court and that their claims that the town’s enforcement system violates due process must go back to the Wisconsin state court for resolution.
In ruling for us, the court indicated that the Mallorys have made “a ‘strong showing’ of success” on their free speech claim. The court was particularly persuaded by one town board member’s email telling Erica that the board had “voted with emotion” to take enforcement actions against the Mallorys because Erica had “literally ticked off all the board members with [her] meeting comments and on [F]acebook.” As the court recognized, this email provides strong evidence of the town’s retaliatory motive.
IJ will build on this early victory to ensure that the Mallorys’ rights are ultimately vindicated and local government leaders in Eagle are held accountable. The Constitution promises all Americans the freedom to criticize the government without reprisal—a promise that extends to those who live in big cities and small towns alike.
Alexa Gervasi and Marie Miller are IJ attorneys.
Also in this issue
Subscribe to get Liberty & Law magazine direct to your mailbox!
Sign up to receive IJ's bimonthly magazine, Liberty & Law, along with breaking news updates about the Institute for Justice's fight to protect the rights of all Americans.