Question
I criticized a city official and a city council. I believe as a result, I lost my ability to apply for a city art program. Did the city wrongly retaliate against me?
Answer
The First Amendment generally prohibits official retaliation by governmental officials for exercising free speech rights. As one court said, “To state a First Amendment retaliation claim, a plaintiff must plausibly allege that (1) he was engaged in a constitutionally protected activity, (2) the defendant’s actions would chill a person of ordinary firmness from continuing to engage in the protected activity and (3) the protected activity was a substantial or motivating factor in the defendant’s conduct.” Capp v. County of San Diego, 940 F.3d 1046, 1053 (9th Cir. 2019) (cleaned up).
“While an individual’s critical comments may be ‘provocative and challenging,’ they are ‘nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.'” Capp, 940 F.3d at 1054 (quoting City of Houston v. Hill, 482 U.S. 451, 461 (1987)).
In particular, as the Supreme Court has noted, “the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006).
As another court said, “Any form of official retaliation for exercising one’s freedom of speech, including prosecution, threatened prosecution, bad faith investigation, and legal harassment, constitutes an infringement of that freedom.” Izen v. Catalina, 398 F.3d 363, 367 n.5 (5th Cir. 2005); see also, e.g., Hodgkins v. Peterson, 355 F.3d 1048, 1056 (7th Cir. 2004) (“The Supreme Court has often noted that a realistic threat of arrest is enough to chill First Amendment rights.”) (citing City of Houston, 482 U.S. at 459 n.7).
The question whether a public agency has retaliated against a person in violation of the First Amendment depends on the facts of each case. For example, it is a fact-intensive issue whether the agency’s action created a sufficient chilling effect on speech or was substantially motivated by a person’s speech.
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