Monday, September 19, 2016

Ninth Circuit Upholds Public Officials' Right to Respond to Public Smears

In Mulligan v. Nichols et al., the Ninth Circuit upheld public officials' right to respond to disparaging public comments against them. The court's opinion reaffirmed that public officials' speech, by itself, is insufficient to support a First Amendment retaliation claim.

In Mulligan, a former Deutsche Bank executive, who had ties to the entertainment industry, was arrested during a drug-induced tirade. The executive filed an administrative complaint against the arresting officers claiming, in part, that they had used excessive force. Given the executive's former position, the administrative complaint attracted significant media attention. In response, the Los Angeles Police Protective League ("LAPPL") issued a press release exposing the executive as a frequent user of bath salts. Because of the press release and associated negative media coverage, the executive lost his job at Deutsche Bank.

The executive sued the City of Los Angeles, the officers, and LAPPL claiming they had retaliated against him for exercising his First Amendment Right to file an administrative claim against the City. The court denied his First Amendment retaliation claim. In support of its finding, the court stated:

"Retaliation claims involving government speech warrant a cautious approach by courts. Restricting the ability of government decisionmakers to engage in speech risks interfering with their ability to effectively perform their duties. It also ignores the competing First Amendment rights to the officials themselves. The First Amendment is intended to 'preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.' McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014) (quoting FCC v. League of Women Voters of Cal., 468 U.S. 364, 377 (1984)). That marketplace of ideas is undermined if public officials are prevented from responding to speech of citizens with speech of their own. See Bond v. Floyd, 385 U.S. 116, 136 (1966) ('The interest of the public in hearing all sides of a public issue is hardly advanced by extending more protection to citizen-critics than to legislators.')"

The court held that public officials' speech, by itself, is insufficiently adverse to give rise to a First Amendment retaliation claim. The executive was unable to show the City, the officers, or LAPPL took any action which affected his rights, benefits, relationship or status with the state. The court expanded, "As we stated in Nunez, '[i]t would be the height of irony, indeed, if mere speech, in response to speech, could constitute a First Amendment violation."