An appellate court has ruled that government-like entities and officials have a constitutional right to sue critics who are exercising their constitutional right to object to official actions.
And it could create a bad precedent, unless the Supreme Court responds to a request to take up the fight, reported Just the News.
The battle is between the Pennsylvania School Boards Association and anti-union and free speech activists.
The 3rd U.S. Circuit Court of Appeals ruled the PSBA was allowed to sue activist Simon Campbell and Pennsylvanians for Union Reform “to make them stop filing embarrassing public records requests and pressuring members to leave the PSBA.”
The critics, asserting their constitutional rights, appealed.
The 3rd Circuit said the PSBA lawsuit was “objectively baseless,” but the group still held “petitioning immunity” and had a First Amendment right “to file lawsuits against individuals using their own First Amendment rights to criticize it.”
Erwin Chemerinsky, dean of the California-Berkeley law school, recently joined the case on behalf of the petitioners.
“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,” he told Just the News.
The report explained it is constitutional for a government-like organization, such as the group representing school boards, to file a lawsuit to stop a critic of government decisions in Pennsylvania, New Jersey and Delaware.
The petition notes that Campbell and PFUR obtained and posted PSBA “guidance” emails that instructed member school districts – sometimes falsely – how to resist Right to Know Law requests.
The critics 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, the report said.
PSBA alleged the critics made defamatory statements, abused the public records process and interfered with its members.
Just the News noted the petition charges that “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.”
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.
The Institute for Free Speech, in a friend-of-the-court brief, said, however, “Governments do not have constitutional rights; they exercise powers limited by the Constitution.”
Officials making statements in their formal roles, including authorizing a lawsuit against 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,” it states.
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