The First Amendment to the U.S. Constitution protects the rights to free speech, to peacefully assemble, and to petition the government for redress of grievances. The First Amendment bars federal, state, and local governments from passing laws that restrict protected speech. It also prohibits the government from retaliating against a person for their constitutionally protected speech or expression.
As a result, a person who experiences some adverse action by the government intended to stop them from continuing their protected speech or to punish them for it may have a valid First Amendment retaliation claim. This type of claim allows them to pursue various kinds of relief, including injunctive relief to stop the government’s retaliation or compensation for financial losses caused by the government’s conduct.
Understanding First Amendment Retaliation
First Amendment retaliation occurs when government officials take some form of adverse action against a person to dissuade them from continuing constitutionally protected speech or expression or punish the person for their speech. The First Amendment only bars government officials from retaliating against a person for protected speech. A private party that takes adverse action against a person for their speech or expression does not commit First Amendment retaliation. Common scenarios that may constitute First Amendment retaliation include:
- The police arrest or cite a person for participating in a peaceful protest
- A local governing council denies a property owner’s zoning or land use application because the owner supported the councilmembers’ political opponents
- A government employer disciplines a worker for publicizing the agency’s violation of public contracting rules
The Three-Part Tests for First Amendment Claims
A viable First Amendment retaliation claim will have three elements:
- Protected Conduct – A claimant must have engaged in constitutionally protected speech or other forms of expression. Common examples of protected conduct include criticizing public officials, advocating for specific legislation or government action, or participating in protests. However, conduct like threats, harassment, or incitement of public disorder will not receive First Amendment protection.
- Adverse Government Action – A claimant must show that they experienced an adverse action by the government that would deter a person of ordinary firmness from continuing to speak or demonstrate. Common examples of adverse government action include denial of permits, arrests, citations, denials of contracts, or termination from public employment.
- Causal Connection – Finally, a claimant must demonstrate a causal connection between their protected speech and the adverse government action. A causal connection means the claimant’s speech provided a substantial or motivating factor for the government’s action. Claimants may use direct and circumstantial evidence to prove the government’s motive. However, the government may claim that it would have taken the same action regardless of the claimant’s speech or demonstration.
Who Can File a Retaliation Claim?
Various individuals may have a First Amendment retaliation claim. For example, a private citizen may have a retaliation claim alleging that the government has denied licenses, approvals, or benefits to retaliate against the individual for their protected speech. Government contractors may also have retaliation claims by alleging that the government denied or terminated a contract to punish them for their protected speech. Students might also bring First Amendment retaliation claims against school officials for unconstitutionally restricting speech, such as by disciplining them for social media posts made outside of school.
Finally, government employees may allege that they suffered adverse employment actions for protected speech. However, whether a public employee may have a valid First Amendment claim will depend on whether they spoke outside their official duties about a matter of public concern and whether their right to free speech outweighs the government’s interest in maintaining a disruption-free workplace.
Contact a Civil Rights Attorney Today
If government officials have retaliated against you for making constitutionally protected statements, you may have the right to pursue accountability and justice through a First Amendment retaliation claim. Contact Hale & Monico today for a confidential consultation with an experienced lawyer to discuss your legal rights and options.