Is “government speech” superior to an individual’s First Amendment rights?

Just about everything the government does involves speech of one form or another. Certainly, nobody will contest that government officials enjoy their freedom to take to the bully pulpit. But, when they do, is their speech entitled to the same protection that individuals are entitled to under the First Amendment to the U.S. Constitution? If so, is government speech superior to individual rights?

Last week, PLF attorneys filed an amicus brief in the U.S. Supreme Court asking these very questions.

These questions arise from a public interest lawsuit, Vargas v. City of Salinas, in which two residents of Salinas, California, sued the city for having used taxpayer funds to oppose a ballot measure that would have repealed a utility tax. The residents argued that the city’s actions violated state election laws that prohibited the government from using general funds to influence the outcome of an election. After years of litigation, the residents secured an important, precedent-setting decision from California’s Supreme Court establishing the test for determining when government expenditures on political campaigns cross the line. But, despite winning on their legal argument, the court found that Salinas’ comments did not cross the line.

Case closed? Not quite. Apparently, winning the case was not enough for the city. It wanted to extract a pound of flesh from its residents and filed an anti-SLAPP motion to strike, which is a special procedure whereby a defendant can request a punitive award of fees against a plaintiff who files a lawsuit designed to chill the defendant’s exercise of his or her free speech rights. The court ruled in favor of the city and awarded it almost a quarter million dollars of attorneys’ fees as a punishment for the residents having challenged the government’s “right” to speak on public issues.

How is this possible? Doesn’t the Petition Clause of the First Amendment prohibit the court from penalizing a person for having filed a non-frivolous, public interest lawsuit against the government? Well, according to the California court, the state’s interest in punishing and deterring lawsuits that challenge government policies is superior to the rights guaranteed by the First Amendment. Thus, the court upheld the outrageous and ruinous fee award.

PLF’s amicus brief warns of the significant and chilling effect that the California court’s decision will have on the First Amendment rights of citizens, in general, and the practice of public interest law, in particular. Public interest law has played a vital role in the development of our legal and cultural institutions. For example, in the early history of our nation, prisoner petitions sowed the seeds for legislation to reform debtor laws, including the abolition of debtors’ prisons. Petitions also played a central role in the effort to abolish slavery in the years preceding the Civil War, and in the early women’s suffrage movement. Public interest litigation has, therefore, been recognized as a legitimate vehicle for individuals to engage in effective political expression and association, as well as a means of communicating useful information to the public.

Indeed, the U.S. Supreme Court has recognized that even unsuccessful public interest litigation is beneficial to society in that such lawsuits allow for the “airing of disputed facts and raise matters of public concern. They also promote the evolution of the law by supporting the development of legal theories that may not gain acceptance the first time around.” BE & K Constr. Co. v. NLRB (2002).

The California court’s decision is both wrong and harmful. An individual’s right to petition is recognized as one of “the most precious of the liberties safeguarded by the Bill of Rights.” United Mine Workers v. Ill. State Bar Ass’n (1967). Thus, an individual cannot be punished for exercising his or her right to petition in good faith except in the most extreme circumstances “without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions.” McDonald v. Smith (1985). The government’s ability to speak on matter of public interest—whether you call it a right a freedom or something else—is not a constitutionally a protected right. Pleasant Grove City v. Summum (2009).  And it cannot be held superior to those rights guaranteed by the U.S. Constitution.

Public interest litigation can only flourish where courts safeguard the liberties guaranteed by the First Amendment. The California court’s understanding of our civil liberties, however, is dangerously flawed. And, if left unreviewed, its decision threatens to chill public interest litigants from exercising their right to seek redress against the government by burdening the right to bring a bona fide lawsuit with the threat of a ruinous award of attorney’s fees if the government prevails.

The U.S. Supreme Court will decide whether to review this important case in the fall (the court’s docket is here).

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