A&A: Government has retaliated against me for publicly criticizing the Vets Administration.

Q: I am service connected veteran openly criticizing government officials at the Veterans Administration. By exercising my rights under the constitution I was subjected to a pattern of retaliation from being denied educational benefits, denied requests for information about my vocational rehabilitation records, and denied due process under the 5th Amendment. What can I do?

A: The First Amendment generally guards against “[o]fficial reprisal” because retaliation for exercising one’s right to protected speech “threatens to inhibit [the] exercise of the protected right.”  Lacey v. Maricopa Cnty., 693 F.3d 896, 916 (9th Cir. 2012) (internal quotations omitted).

In order to show a First Amendment violation, a plaintiff must present evidence demonstrating that the defendant, by its actions, “deterred or chilled” the plaintiff’s “political speech and such deterrence was a substantial motivating factor in [the defendant’s] conduct.”  Id.

Every case is different, and any First Amendment analysis is necessarily fact specific:

In Lacey, the court found that the plaintiff, a newspaper reporter critical of the county sheriff’s office, could maintain his First Amendment retaliation claim against the Maricopa (Ariz.) county sheriff based on the sheriff’s “intrusive investigation and arrests designed to chill his speech and press rights.”  Id. at 922.

In Tichinin v. City of Morgan Hill,  the court found plaintiff, who was publicly reprimanded for investigating city officials, made prima facie showing of success on merits of retaliation claim, as the reprimand would have chilled a person of ordinary firmness from engaging in same protected conduct.  177 Cal. App. 4th 1049 (2009).  To succeed in a retaliation action, a plaintiff must prove “(1) the conduct he complained of was committed by a person ‘acting under the color of state law’; and (2) ‘this conduct deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States.’”  Id. at 1062.

It would seem that the VA’s conduct might be unlawful, although the inquiry is necessarily fact specific.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries.  In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.