In Moxley v. Town of Walkersville (D. Md. Mar. 6), land owners are suing over the town’s denying a religious group’s land use permit application. The plaintiffs allege that the decision was based largely on the group’s being Muslim, which would violate the Free Exercise Clause. There do indeed seem to be facts that support the allegation, so the town's action may well be unconstitutional, as well as a statutory violation. (I set aside whether these particulars plaintiffs have standing to raise the group’s rights.)
But the plaintiffs sued not only the town but also private citizens who allegedly (1) discussed with town officials how the land use permit can be blocked, (2) "embarked on a propaganda campaign aimed at furthering their goal," by "set[ting] up internet sites, hir[ing] 'experts,' and ma[king] statements in newspapers and blogs," (3) in a way coordinated with the town officials' activities. And the court refused to dismiss these claims against the private citizens, on the grounds that the private defendants were conspiring with the public defendants.
Can this be right, though? Can otherwise First-Amendment-protected petitioning of the government -– even petitioning for an action that would be unconstitutional if the government did it -– coupled with otherwise First-Amendment-protected public support for the government’s plans constitute a civilly (or even criminally) punishable conspiracy? (I should note that some of the statements were alleged to be false, so they might not be First-Amendment-protected. But even some false factual statements are protected by the First Amendment; some of the allegedly false statements sound like matters of opinion; and in any case, the allegations also focus on statements that can't be labeled false factual assertions.) I'm not an expert on federal civil rights conspiracy claims, but this strikes me as impermissible.
Of course, speakers who call for unconstitutional action aren’t terribly sympathetic. But such lawsuits could be filed even when it’s far from clear that the action is unconstitutional. The private defendants would have to spend their own money (not the government entity’s money) to defend themselves. Also, as I understand it, such private citizens wouldn’t even have the qualified immunity defense that's available to government officials when the matter is unsettled.
So if some person or group
urges a principal to restrict student speech,
urges a city to hire a black employee to serve a predominantly black community,
urges a government agency to arrest someone or search his property,
urges a government agency to seize someone's firearms,
urges a university administrator to pass a speech code,
urges a city to fire an employee who expressed some reprehensible views (left, right, or otherwise), or
urges a city to fire an employee for the employee's off-duty sexual conduct
and then publicly supports this action in a way coordinated with the government officials, he could find himself sued for his advocacy, on the grounds that his interactions with the government make the speech part of a "conspiracy." Maybe he'll win at trial and maybe he'll lose, depending on how a court resolves the often vague question of whether the lobbied-for action was unconstitutional. But he'll certainly be facing a massive legal bill, just for expressing certain views and interacting with government officials while doing so.
Here is an excerpt from the statement of facts as plaintiffs allege them to be -– again, I focus here only on the actions of the private defendants –- and from the court’s reasoning refusing to dismiss the lawsuit against the private defendants. Tell me, please, if there's something I'm missing.
UPDATE: Prompted by a comment from commenter AF, I revised the title, the second paragraph, and the line following the bulleted list to make clear that the private defendants are being faulted not just for lobbying and propaganda, but for coordinating their speech with government officials as part of a political advocacy campaign. But I don't think this at all changes the analysis: Coordinating your political advocacy with government officials is just as protected by the First Amendment, I think, as speaking independently of them.
I realize that coordination is of relevance when it comes to the spending of money, see Buckley v. Valeo, but that has to do with the possibility that such coordinated spending would be an implicit bribe. Here, the coordination is seen to be actionable not because of the spending of money, but because of the government action that the private speakers are advocating in a coordinated way.
Nick
They did seem to miss the 1st Amendment defense. The Court charachterized the Private Defendants' arguments as:
The complaint alleges that the private individuals met with the public officials and the public officials "instructed the Private Defendants in some detail about how to proceed in their joint effort to block the sale." (29) So the complaint alleges more than "petitioning of the government" and "public support of the government plans." It alleges agreeing with government officials to carry out a "joint effort" to engage in unconstitutional conduct.
The theory of liability doesn't seem to extend to private individuals who merely urge the government to adopt an unconstitutional course of action and publicly supported that action, but never agree with government officials to engage in a "joint effort."
But the net effect of this decision seems to be that only effective lobbying/petitioning can result in liability - a particularly perverse result. The better your exercise of constitutional rights, the more screwed you are.
On the plus side, it's been my experience in other (non-civil rights) contexts that conspiracies are pretty easy to allege, but very hard to prove. Small comfort for these defendants once the legal bills start mounting, but there may be some light at the end of the tunnel for them.
See "lawfare".
Is that a conspiracy against civil rights?
Are these Muslims in violation of their own stupid theory by filing a lawsuit with baseless claims?
The case law cited by the judge refers to private parties who are "willful participants" in state action. Don't have time to delve into those cases, but drawing the line between a private party who "willfully participates" in government action which is improper and a private party who urges that the government take action which is improper can't be done on a motion to dismiss, provided the complaint alleges action that constitutes "willful participation". I agree that the 1st Amendment allows people to express views that are bigoted and even urge that the government take action based on bigotry, even if it is illegal/actionable for the government to take action based on bigotry.
If a private person is in fact taking action with a government employee in an effort to deprive another person of their own rights, as opposed to merely urging that the government take action to deprive that person of their rights, do you believe that the private person should be immune from suit?
I understand the problems associated with allowing anyone to allege anything they want to allege in a complaint, but I think the judge got it right on this one.
Actually, I'm pretty sure they're not. The Muslim organization (the Ahmadiyya Muslim Community) isn't suing. The person (Moxley) and LLCs that owned the land, but couldn't sell it to the AMC due to the denial of an exemption are.
(Incidentally, the facts presented certainly make a more than plausible case that the decision was motivated purely by religious animus, but since this was a decision on motions to dismiss, the presentation is necessarily one-sided).
I agree that this raises first amendment questions - and may raise standing questions, given that it's not the AMC suing, though that is well out of my depth - but neither of them were brought up by the defense; Philistine noted above their two motions.
The judge cites Dennis v. Sparks:
Which seems on point against argument (1) as it was stated. And I don't think you can fit a first amendment claim into (2).
So while I think a first amendment defense could be strong, the defendants didn't raise one (in this set of motions, anyway) and I don't think either of their claims can have one shoehorned into it. Hopefully they'll bring up a claim at one point.
The question I was addressing is not whether the Muslims are simply trying to get their lawful rights just as Christians and Jews may--pause to wipe my eyes at the wonderfulness of the picture--but why the court went along with it.
The feds tried something like this in CA some years back. Some folks protesting the imposition of a group home in their neighborhood were threatened with action as violating the civil rights of the unfortunates who were to be in the home. I recall watching C-Span when Slade Gorton and Barbara Mikulski threatened to hold up a spending bill if the blatant attempt to smother the homeowners' 1A rights were not stopped instantly.
“To the extent that plaintiffs mean to assert that the rights of X-Men's employees to associate with others with whom they share religious beliefs should take precedence over other persons' speech rights, they are wrong.
* * *
The "critical line for First Amendment purposes must be drawn between advocacy, which is entitled to full protection, and action, which is not." Healy v. James , 408 U.S. 169, 192 (1972).
In the present case, as discussed in Part II.B. above, Polonetsky and King are not alleged to have had any power or authority to decide who would be awarded contracts to provide services at Ocean Towers. As to what the legislators are alleged to have done, the complaint contains several charges of "participation" in a "conspiracy" that are conclusory, and are for that reason insufficient to state a claim, see , e.g. , Thomas v. Roach , 165 F.3d 137, 147 (2d Cir. 1999); Ostrer v. Aronwald , 567 F.2d 551, 553 (2d Cir. 1977) (per curiam), along with a few concrete allegations. It is to the specific allegations that we look to determine whether a constitutional violation is alleged.
What the legislators are alleged to have done is to express their views. The only concrete acts ascribed to them are attending meetings, making statements, and writing letters. The statements attributed to the legislators are that they accused X-Men of being controlled by the Nation of Islam and Farrakhan (Complaint ¶ 42), of being part of a "hate group" that practiced racism, gender discrimination, anti-semitism, and other religious discrimination ( id . ¶¶ 44, 45), of being fraudulently mismanaged ( see id . ¶ 44), and of forcing its religious views on the Ocean Towers tenants by distributing religious literature while on duty ( see id . ¶ 43); and the legislators are alleged to have "ridiculed" HUD findings to the contrary ( id . ¶ 56) and to have urged that X-Men not be retained ( see , e.g. , id . ¶¶ 55, 56, 59). Even if false, as alleged by the complaint, the legislators' statements are entitled to First Amendment protection.
While the complaint alleges that the legislators exerted "pressure" on the decisionmakers, there is no allegation that such "pressure" took the form of anything other than speech. Though they are alleged to have communicated with State and federal regulators, a Congressional committee, and the public, the legislators are not alleged to have threatened the decisionmakers in any way or to have engaged in coercive or intimidating conduct.”
Per the opinion, the complaint alleges that the private defendants did more than just ask a governmental official to do something and then publicly speak in support of the government official's behavior. Per the allegations, there was a meeting, closed to public, at which a course of action was agreed upon, namely, to prevent the Muslim organization from achieving its goal. In other words, this was not a meeting at which the public officials were "lobbied" by the private citizens. Instead, they agreed to take actions in a coordinated way. The alleged basis for taking these actions was pure bigotry, i.e., a dislike of the group because its members were Muslim. In furtherance of those goals, false statements were made by the private individuals in a public forum.
My own view (without the benefit of having read the cases I alluded to in my earlier post) is that the alleged conduct is sufficient to withstand a motion to dismiss.
Where, exactly, would you draw the line? What more would they have had to do?
It would appear to me that the private citizens would need to continue to be represented by experienced attorneys even if they were dismissed from the suit now based on 1st Amendment grounds. They could be sued later if facts came out during depositions and other discovery which showed conduct by them that crossed the line (wherever that line might be drawn). Dismissing them now might save them some money, but they would still need to closely monitor the litigation and prepare for being deposed.
Mind you, I don't think any such exhortations should be illegal: speech is not action, and the criminal actor is free to reject the speaker's exhortations. And even if the opposite is held, it ought to be an affirmative defense that the speaker did not know that or was unable to determine whether the proposed activity was in fact illegal. But the rules should be consistent, either way.
Don de Drain: Agreeing to speak in a way coordinated with a government official's votes strikes me as fully protected by the First Amendment (again, except if the speech is otherwise unprotected, but the case is hardly limited to that). In fact, that's what political parties and other advocacy groups do all the time.
Gabriel McCall: Really? Let's take speech that is indeed unprotected "incitement" under the law, which is speech that is intended to and likely to lead to an imminent illegal action. Say that I write a newspaper column urging him to take an imminent action (e.g., make a decision that same day) that ultimately proves unconstitutional; and let's say that I'm an influential enough columnist that it's likely that the mayor would take my advice. That, you say, should be constitutionally unprotected?
It's interesting because under current housing discrimination law, the government can be sued if an ostensibly neutral housing-related statute turns out to have been motivated by racist/sexist/religiously bigoted citizen advocacy and it has a disproportionately racial/sexual/religious impact; but the private citizens themselves aren't liable just because they successfully convinced the government to do something illegal.
But under this plaintiff's theory, a few closed-door meetings and phone calls could make private citizens liable for conspiracy to violate the FHA... interesting case for sure.
Absolute judicial immunity applies to judges and prosecutors. But private plaintiffs?
Sure, if the plaintiffs meets with the judge in secret, they all decide to act jointly for an illegal activity, such as coordinating their filings etc and the judge in that meeting promises decide in their favor even though it is against the law, why not?
There's a lot written on SLAPP suits on the nets that can provide case law that pro se defendants can mention.
They can also Google their own names and find commentary like yours cut and paste and get great legal arguments for free.
As the Supreme Court cares a lot about antitrust, and antitrust cares a lot about conspiracy, there's no chance that this could slip by the Supreme Court or any antitrust lawyer who was asked this question. The conflict is too direct to miss. In my opinion, there's no way the Supremes would allow this prosecution.
There have been some zoning issues, some favoring the building or expansion of mosques, one, iirc, favoring a mosque's request that a nearby liquor store be closed.
The Muslims will be treated in courts like other Accredited Victim Groups, which is to say, get breaks other groups will not.
Unfortunately, unlike, say, Jews, Muslims get the benefit of implied violence, as well. See the Motoons.
Cumulatively, it works out pretty well.
I was pleased to see the cabbies at Minneapolis airport didn't get their way. But the flying imams got a good deal more than they deserved. I corresponded with a Strib reporter on the subject and his responses ranged from insouciant to dishonest. When I pointed out that a skinny guy doesn't need a seat belt extender, he said he sometimes asks for a pillow even if he isn't sure he'll need it. Even a journo isn't dumb enough to miss the point by that much by accident.
What's happening in Britain wrt pre-emptive surrender will be hard to avoid here.
I'm starting to think Muslims are the new Jews: a tiny, despised minority who are claimed to possess enormous influence over government affairs.
Your rights against the State impose no limitations whatsoever on non-State actors. Period.
Yeah, right.
Tell that to the Brits, the Dutch, the Spaniards, the Swedes, the Malays, the Phillipinos, and many others, about how the stealth jihad, lawfare, taqqiyah, and demographic creep are totally ineffective tactics in slowly but inexorably imposing sharia law and otherwise forcing the infidels to cater to them in their countries.
Once again our insulation from the real world by two oceans prevents some of us from seeing what is happening to other nations, and learning from history. That, and the fact that Mexico invaded us first.
How many think Muslims will be indicted--or whatever the UNHCR calls it--for criticising Christians?
Counting.... About half.
Snort. About to give myself a nasal hemmorhage here.
Not only do you once again fail to cite any actual facts anywhere in your comments besides vague allusions to things that "there have been" somewhere, someplace, at some time, you may not be aware of this, but politicians routinely accommodate churches that don't want liquor stores, adult entertainment, etc., nearby. (You may not have noticed, but many jurisdictions don't even let liquor stores -- or sometimes any retail stores -- be open on Sunday mornings because the churches are afraid of the competition.)
I don't see how speaking "in a coordinated way" is "more than" speaking.
Churches don't object to liquor stores in the first place, certain Baptists excepted. I wasn't talking about Sunday hours, but about the store's existence.
Yeah, I failed to cite news reports because I failed to write down the specifics when channel surfing.
Malaysia is majority Muslim. You can see how it's going for the infidels. Who gets to say "Allah". Hair covering for non-Muslim women is now a matter of prudence.
How about Thailand and their slo-mo ethnic cleansing in the south of the country?
State actors are given powers and trained how to use them. Private actors who assist State actors are not. We generally want to encourage such cooperation.
The first is what constitutes a conspiracy in this case as regard private individuals? Certainly speech which is used to orchestrate or coordinate a conspiracy towards an illegal end is not protected (I can't tell you to kill my wife and then hide behind the first Amendment when you do so). How are things fundamentally different when the government is involved?
The practical elements of the speech "We are going to make an end-run around the law and here is how we are going to do it" are generally not protected. What makes one think that they would be just because an elected official is involved?
at the same time....
It seems to me that the sorts of statements the defendents are accused of making in public do not rise to the level of slander, etc. Why should they be held liable for speaking their mind?
It seems to me that the court decision while it seems to flow from reasonably uncontroversial bases IMO seems also to run smack dab into the substance of the First Amendment, but this defence was never raised. Why not?
It seems to me that the defense they raised is the more valid one. You can't conspire to violate rights you have no responsibility to respect. State actors are subject to special rules because they are given special powers. Private actors have no such powers and should not be expected to follow those rules.
If anything, the denial might seem to violate civil rights statutes, but no one actually blocked the sale of the property. The sale could have proceeded by dropping any contingent requirements for changes in the zoning element from the purchase offer.
The situation seems more analogous to the lobbying activities of groups seeking to deny marriage rights to gays, no?
On a related note, how does RLUIPA even pass muster with the free exercise clause? That is, how is one's religion a "use" of land? Can a municipality impose a "Historic Christian Preservation Overlay Zone" over a whole town?
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