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Governments can weaponize First Amendment to silence critics, groups tell SCOTUS

Appeals court allowed Pennsylvania school districts to file "objectively baseless" suit against anti-union group.

Updated: May 6, 2021 - 10:55pm

Is it constitutional for the government to file a lawsuit to stop you from criticizing its decisions? 

If you live in Pennsylvania, New Jersey or Delaware, it is for now.

Anti-union and free speech groups are urging the Supreme Court to hear a challenge to a ruling in favor of the Pennsylvania School Boards Association (PSBA), whose members are public school districts.

The 3rd U.S. Circuit Court of Appeals found that PSBA sued activist Simon Campbell and Pennsylvanians for Union Reform (PFUR) expressly to make them stop filing embarrassing public records requests and pressuring members to leave the PSBA.

Though it determined the suit was "objectively baseless," the 3rd Circuit upheld "petitioning immunity" for the PSBA. That means it has First Amendment rights to file lawsuits against individuals using their own First Amendment rights to criticize it.

The case has been pending at the Supreme Court for nearly two months yet has received little attention in legal communities. That may soon change: Erwin Chemerinsky, dean of the University of California-Berkeley Law School, recently joined the petitioners as counsel.

"The Third Circuit's opinion is a road map for how government officials and other state actors can retaliate against their critics with impunity by using the judicial process," Jack Cohn, who is representing PFUR and Campbell, told Just the News.

He agreed that public college professors and administrators could use the ruling to silence their critics as well. They would simply need to be "wearing their badges" as public officials and acting "under color of state law" when they went to court, as did the elected governing board of PSBA.

Both private and government plaintiffs could use the ruling to circumvent state laws that crack down on "strategic lawsuits against public participation" (SLAPP), according to Campbell, a naturalized U.S. citizen whose YouTube channel calls him the "Government's (Least) Favorite Pain-in-the-Arse."

Faced with paying a defendant's legal fees, a plaintiff could argue "'I subjectively believed in the merits of my retaliatory lawsuit and that fact automatically grants me constitutional immunity, so go shove your state law,'" he wrote in an email.

The PSBA sought and was granted a monthlong extension, to May 17, to file its opposition to the Supreme Court hearing the case. It declined to provide a summary of its planned argument or comment on the case.

If you plan to win, it's not a "sham"

Campbell and PFUR obtained and posted PSBA "guidance" emails that instructed member school districts — sometimes falsely — how to resist Right to Know Law requests, according to the petition

They then filed requests for financial records and contractual relationships with PSBA, a private corporation run by elected officials, and explicitly called on members to "stop making taxpayers fund" its salaries and pensions. PFUR's website also published "satirical cartoons" against PSBA.

While PSBA's resulting lawsuit claimed its critics made defamatory statements, abused the public records process and committed "tortious interference" with its members, it could not legally accomplish anything, the petition says. Several school districts "sought to collect responsive records" even though they could deny requests as "disruptive" under state law.

The 3rd Circuit tossed the case on the grounds that the plaintiffs had not demonstrated the second prong of the "sham" exception to petitioning immunity. 

"Subjectively baseless" lawsuits intend to use the governmental process itself, "not the outcome of that process," as a weapon against critics. The appeals court said the plaintiffs failed to show the "indifference" of the PSBA to winning its lawsuit, or that it was primarily intended to inflict "collateral injuries" on Campbell and PFUR.

The Supreme Court has never shielded government entities from civil rights liability for First Amendment retaliation through baseless litigation, based on their own supposed First Amendment rights, the petition says.

The 3rd Circuit wrongly said the two sides have "competing" First Amendment interests, providing cover "for the worst inclinations of government officials who tire of their critics," it argues.

There's no dispute that "being hit with an onerous SLAPP suit is enough to chill a person of ordinary firmness from continuing to exercise his constitutional rights."

Conflating government rights with government powers

UCLA law professor Eugene Volokh told Just the News the issue of First Amendment rights for state and local governments was "surprisingly unsettled" in the courts. 

He addressed the issue in a 2015 blog post on the Supreme Court's ruling that license plates are government speech, which suggests state and local governments have First Amendment rights "with respect to federal regulations."

That ruling was invoked in a friend-of-the-court brief by the Institute for Free Speech, the only outside party to file in the pending case. It's represented by prominent D.C. First Amendment lawyer Bob Corn-Revere.

He told Just the News the 3rd Circuit ruling "could have broad implications," but the judicial doctrine on which it's based has not been invoked much in situations like this.

Corn-Revere has dealt with one such case: Chicago State University administrators unsuccessfully invoked petitioning immunity against his faculty whistleblower clients in a First Amendment retaliation lawsuit.

"Governments do not have constitutional rights; they exercise powers limited by the Constitution," the friend-of-the-court brief argues. The license-plate decision confirmed that "once speech is categorized as that of the government, the First Amendment does not apply."

Public officials making statements pursuant to their duties — such as authorizing a lawsuit against their critics — can actually be constrained by the First Amendment as they exercise government power, the brief says.

"To suggest that government speech is both immune from, yet protected by, the First Amendment is a constitutional non sequitur."