Objective Test to Govern Private-Plaintiff First Amendment Retaliation Claims

Interesting free speech case today from the Eleventh Circuit:

Plaintiffs Danny M. Bennett and Danny L. Reid filed a complaint alleging that Dennis L. Hendrix, former Sheriff of Forsyth County, Georgia and Earl A. Singletary and David W. Waters, deputies who served under Hendrix, violated their civil rights. Plaintiffs alleged that these officers carried out a campaign of police harassment and retaliation after plaintiffs supported a county referendum opposed by the sheriff.
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Taken in the light most favorable to the plaintiffs, the record is replete with instances where the defendants followed, pulled over, cited, intimidated, or otherwise harassed the plaintiffs. The defendants allegedly accessed confidential government databases containing information on the plaintiffs, attempted to obtain arrest warrants against the plaintiffs without probable cause, and produced and mailed to Forsyth County residents flyers depicting the plaintiffs as criminals terrorizing the county.

The issue was this: Even if the sherrif's acts would not have prevented the plaintiffs from exercising their First Amendment rights, could the plaintiffs nonetheless state a First Amendment retaliation claim?  Answer:  "[T]oday we expressly adopt the following standard: A plaintiff suffers adverse action if the defendant’s allegedly retaliatory conduct would likely deter a person of ordinary firmness from the exercise of First Amendment rights."  There's an interesting discussion of the circuit split worth reading.  Also, given the wide circuit split, I'm filing this under "Cert. Watch."

Comments

[Windypundit]

Not being a lawyer, I have to ask: Is the "person of ordinary firmness" standard something new, or did they just make that up?

I ask because it seems like such a standard would be useful in some of the other decisions I've heard about. For example, if armed police board the bus you're riding in and walk down the aisle asking questions, would a person of ordinary firmness realize they were free to leave?

Sorry if this is a thread-jack, and I realize these are different kinds of cases, but I had a sudden feeling that this "ordinary firmness" standard seems much more true-to-life than "supreme court justice sitting quietly in his own chambers three years later" standard that is usually used.

[Mike]

Windy, they apply a standard like that in 4A cases. E.g., would a reasonable person feel free to leave, if yes, then there's a seizure. Problem is that in the Court's view, a reasonable person would almost always feel free to leave.

Two cops and a drug dog on a bus. Sure, a reasonable would feel free to leave. Thus, the standard they apply leads to some kooky outcomes.

[Maren Chaloupka]

A successful First Amendment retaliation case against a private party ... sigh.

[mythago]

An acting sheriff using police authority is not exactly a 'private party'.

[Mike]

Private party = private plaintiff, as distinguished from a government party/plaintiff (there's a different line of cases when a gov't employee is bringing a 1A retaliation claim. I'll amend the headline to clarify, though.