The Volokh Conspiracy - Lobbying, "Propaganda," and Political Activity Coordinated with Government Officials as Legally Actionable "Conspiracy"?

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.

(Read excerpts from the opinion.)

Plaintiff[s] ... own a 224-acre parcel of land located at 8939 Woodsboro Pike in the Town of Walkersville, Maryland, known by the parties in this lawsuit as the Moxley Farm. On September 7, 2007, Plaintiffs reached agreement to sell the Moxley Farm to the Ahmadiyya Movement of Islam, Inc., a corporation representing the Ahmadiyya Muslim Community (“AMC”). [Footnote: The AMC is not a party to this action.] The AMC intended to use the Moxley Farm as a place of worship and residence for its imam, as well as to hold an annual three-day religious event called the Jalsa Salana. Plaintiffs' seventeen-count Amended Complaint alleges that the sale of the Moxley Farm to the AMC was blocked by government officials and private citizens in a concerted effort motivated by anti-Muslim hostility [in violation of, among other things, the First and Fourteenth Amendments]. [The government officials and private citizens were all named as defendants, and they moved to dismiss the complaint.]

On August 20, 2007, the AMC publicly disclosed its intention to build a mosque on the Moxley Farm. Two days later, on August 22, 2007, Defendant Weddle, a Town Commissioner, introduced an amendment to the zoning ordinance to prohibit places of worship in the agricultural zoning district (the “Weddle Amendment”).

On September 7, 2007, while the Weddle Amendment was still pending, the AMC filed a petition for a special exception under Walkersville Code § 88-24.3 to establish a place of worship with an ancillary multi-purpose recreational facility on the Moxley Farm. The AMC retained various land use professionals (in the fields of traffic engineering, civil engineering, land planning, fire and rescue safety, architecture, and real estate appraisal) to develop a plan that would satisfy public health, safety and welfare issues. The AMC commissioned an examination of traffic patterns for its proposed use, which found that any impact on local traffic would be minimal for 362 days per year, and would not be significant even during the Jalsa Salana event....

On October 13, 2007, one month after the application was filed, Private Defendants Marino and Berryman are alleged to have held a “secret meeting” at Creamery Park in Walkersville to discuss strategies in preventing the AMC's purchase of the Moxley Farm. Three of the Town Commissioners (Defendants Winch, Schildt, and Weddle) allegedly attended this meeting. Defendant Berryman, acting as a spokesman for Citizens of Walkersville, stated that the “[Citizens of Walkersville has] connections to the Burgess, the [Town Commissioners], the [Appeals Board], [p]olice, [f]ire, [r]escue, [m]edia, [r]etirement homes, GVAA, the City of Frederick, and more.”

Commissioner Weddle, a prominent member of the allegedly conspiracy, acted as a moderator and gave “talking points” to use against the AMC and told the Private Defendants that following the points would avoid violations of the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”). Commissioner Weddle discussed his proposed Weddle Amendment and advised the Private Defendants about how to approach the public hearings on the AMC's petition, including refraining from using “terms like Muslim, those individuals, religion etc.,” and how many people should testify. Commissioner Weddle then offered $500 to the Private Defendants to pursue the goal of “beat[ing] the Muslims.”

A list of recommended attorneys was given to the Private Defendants, and public documents (including the AMC's application for a special exception) were removed from public offices and brought to the meeting for use by the Private Defendants. Commissioner Winch also spoke to the group for 25 minutes, explaining that he was concerned that other members of the AMC would move to the Moxley Farm and could thereby become politically active in the Town of Walkersville. [Footnote: After the meeting ended, Commissioner Weddle told the Private Defendants that “he couldn't meet openly with [Citizens for Walkersville] anymore until after November 1 st, as it would be a conflict of interest.” (November 1, 2007 was the original hearing date on the AMC's application.)]

Over the next several months, Plaintiffs allege that the Defendants embarked on a concerted propaganda campaign intended to prevent the AMC from being approved for a special exception. Private Defendants Marino and Berryman made numerous false statements about AMC and its proposed use of the Moxley Farm, including describing AMC as “radical religious extremists,” calling their application “willfully deceiving,” suggesting that they “strangle children due to dress code violations,” and claiming that they intended to build a “huge settlement” by “occupying new land, especially in Walkersville, MD.”

Defendant Marino is alleged to have stated that “[w]e must be diligent in protecting the lifestyle and environment we have in Walkersville.” Defendant Berryman is alleged to have stated that “I'm trying to keep Frederick free of people who don't belong.” Defendant Berryman also posted a statement on the internet that declared “I will not be ‘[d]eceived’ by the Muslim Ahmadiyya Group's efforts to infiltrate Frederick County. Neither should you!,” and also warned that the AMC's use of the Moxley Farm could be used to spread radical Islamic ideology. The Private Defendants also set up internet sites, hired “experts,” and made statements in newspapers and blogs....

Plaintiffs' Amended Complaint pleads ample facts to support their contention that the Private Defendants joined with the Government Defendants to block the sale of the Moxley Farm to the AMC. After establishing Citizens for Walkersville, an organization allegedly dedicated solely to preventing the AMC from purchasing the Moxley Farm, the Private Defendants organized and participated in the October 13, 2007 meeting.

Three Town Commissioners attended that meeting, and allegedly instructed the Private Defendants in some detail about how to proceed in their joint effort to block the sale of the Moxley Farm to the AMC. Defendant Berryman stated that Citizens for Walkersville had “connections” to various local governmental organizations, including the Burgess, the Commissioners, and the Board of Appeals. After the meeting, Plaintiffs allege that the Private Defendants embarked on a propaganda campaign aimed at furthering their goal of blocking the sale of the Moxley Farm. They set up internet sites, hired “experts,” and made statements in newspapers and blogs.

Based on these same allegations, Plaintiffs' Amended Complaint is clearly sufficient to support the conspiracy claim at this early stage in the litigation. “Turning to the sufficiency of the factual allegations, this Court finds no reason to dismiss [plaintiff's] claim. Neither party disputes that Section 1985(3) mandates that an agreement among defendants, at least to the extent that they all “actually shared the same conspiratorial objective or motive,” must be shown for there to be a conspiracy ... [Plaintiff] need not, however, allege “exactly how the agreement was made — i.e., ... where and when, and with what words, the agreement was formed.” ... Rather, [plaintiff] is required only to allege an agreement or make averments that there was a “ ‘communication, consultation, cooperation, or command’ from which such an agreement can be inferred.”.... Last, although he must make specific allegations connecting the defendants to the injury, [plaintiff] need not plead an overt act against each defendant since a single act by one conspirator may sustain a conspiracy claim.”

Therefore, the Private Defendants' Motion to Dismiss is DENIED. [Some paragraph breaks added.]

(Hide the excerpts from the opinion.)

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.

	[Eugene Volokh, March 26, 2009 at 2:17pm] Trackbacks Lobbying, "Propaganda," and Political Activity Coordinated with Government Officials as Legally Actionable "Conspiracy"? 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. (Read excerpts from the opinion.) Plaintiff[s] ... own a 224-acre parcel of land located at 8939 Woodsboro Pike in the Town of Walkersville, Maryland, known by the parties in this lawsuit as the Moxley Farm. On September 7, 2007, Plaintiffs reached agreement to sell the Moxley Farm to the Ahmadiyya Movement of Islam, Inc., a corporation representing the Ahmadiyya Muslim Community (“AMC”). [Footnote: The AMC is not a party to this action.] The AMC intended to use the Moxley Farm as a place of worship and residence for its imam, as well as to hold an annual three-day religious event called the Jalsa Salana. Plaintiffs' seventeen-count Amended Complaint alleges that the sale of the Moxley Farm to the AMC was blocked by government officials and private citizens in a concerted effort motivated by anti-Muslim hostility [in violation of, among other things, the First and Fourteenth Amendments]. [The government officials and private citizens were all named as defendants, and they moved to dismiss the complaint.] On August 20, 2007, the AMC publicly disclosed its intention to build a mosque on the Moxley Farm. Two days later, on August 22, 2007, Defendant Weddle, a Town Commissioner, introduced an amendment to the zoning ordinance to prohibit places of worship in the agricultural zoning district (the “Weddle Amendment”). On September 7, 2007, while the Weddle Amendment was still pending, the AMC filed a petition for a special exception under Walkersville Code § 88-24.3 to establish a place of worship with an ancillary multi-purpose recreational facility on the Moxley Farm. The AMC retained various land use professionals (in the fields of traffic engineering, civil engineering, land planning, fire and rescue safety, architecture, and real estate appraisal) to develop a plan that would satisfy public health, safety and welfare issues. The AMC commissioned an examination of traffic patterns for its proposed use, which found that any impact on local traffic would be minimal for 362 days per year, and would not be significant even during the Jalsa Salana event.... On October 13, 2007, one month after the application was filed, Private Defendants Marino and Berryman are alleged to have held a “secret meeting” at Creamery Park in Walkersville to discuss strategies in preventing the AMC's purchase of the Moxley Farm. Three of the Town Commissioners (Defendants Winch, Schildt, and Weddle) allegedly attended this meeting. Defendant Berryman, acting as a spokesman for Citizens of Walkersville, stated that the “[Citizens of Walkersville has] connections to the Burgess, the [Town Commissioners], the [Appeals Board], [p]olice, [f]ire, [r]escue, [m]edia, [r]etirement homes, GVAA, the City of Frederick, and more.” Commissioner Weddle, a prominent member of the allegedly conspiracy, acted as a moderator and gave “talking points” to use against the AMC and told the Private Defendants that following the points would avoid violations of the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”). Commissioner Weddle discussed his proposed Weddle Amendment and advised the Private Defendants about how to approach the public hearings on the AMC's petition, including refraining from using “terms like Muslim, those individuals, religion etc.,” and how many people should testify. Commissioner Weddle then offered $500 to the Private Defendants to pursue the goal of “beat[ing] the Muslims.” A list of recommended attorneys was given to the Private Defendants, and public documents (including the AMC's application for a special exception) were removed from public offices and brought to the meeting for use by the Private Defendants. Commissioner Winch also spoke to the group for 25 minutes, explaining that he was concerned that other members of the AMC would move to the Moxley Farm and could thereby become politically active in the Town of Walkersville. [Footnote: After the meeting ended, Commissioner Weddle told the Private Defendants that “he couldn't meet openly with [Citizens for Walkersville] anymore until after November 1 st, as it would be a conflict of interest.” (November 1, 2007 was the original hearing date on the AMC's application.)] Over the next several months, Plaintiffs allege that the Defendants embarked on a concerted propaganda campaign intended to prevent the AMC from being approved for a special exception. Private Defendants Marino and Berryman made numerous false statements about AMC and its proposed use of the Moxley Farm, including describing AMC as “radical religious extremists,” calling their application “willfully deceiving,” suggesting that they “strangle children due to dress code violations,” and claiming that they intended to build a “huge settlement” by “occupying new land, especially in Walkersville, MD.” Defendant Marino is alleged to have stated that “[w]e must be diligent in protecting the lifestyle and environment we have in Walkersville.” Defendant Berryman is alleged to have stated that “I'm trying to keep Frederick free of people who don't belong.” Defendant Berryman also posted a statement on the internet that declared “I will not be ‘[d]eceived’ by the Muslim Ahmadiyya Group's efforts to infiltrate Frederick County. Neither should you!,” and also warned that the AMC's use of the Moxley Farm could be used to spread radical Islamic ideology. The Private Defendants also set up internet sites, hired “experts,” and made statements in newspapers and blogs.... Plaintiffs' Amended Complaint pleads ample facts to support their contention that the Private Defendants joined with the Government Defendants to block the sale of the Moxley Farm to the AMC. After establishing Citizens for Walkersville, an organization allegedly dedicated solely to preventing the AMC from purchasing the Moxley Farm, the Private Defendants organized and participated in the October 13, 2007 meeting. Three Town Commissioners attended that meeting, and allegedly instructed the Private Defendants in some detail about how to proceed in their joint effort to block the sale of the Moxley Farm to the AMC. Defendant Berryman stated that Citizens for Walkersville had “connections” to various local governmental organizations, including the Burgess, the Commissioners, and the Board of Appeals. After the meeting, Plaintiffs allege that the Private Defendants embarked on a propaganda campaign aimed at furthering their goal of blocking the sale of the Moxley Farm. They set up internet sites, hired “experts,” and made statements in newspapers and blogs. Based on these same allegations, Plaintiffs' Amended Complaint is clearly sufficient to support the conspiracy claim at this early stage in the litigation. “Turning to the sufficiency of the factual allegations, this Court finds no reason to dismiss [plaintiff's] claim. Neither party disputes that Section 1985(3) mandates that an agreement among defendants, at least to the extent that they all “actually shared the same conspiratorial objective or motive,” must be shown for there to be a conspiracy ... [Plaintiff] need not, however, allege “exactly how the agreement was made — i.e., ... where and when, and with what words, the agreement was formed.” ... Rather, [plaintiff] is required only to allege an agreement or make averments that there was a “ ‘communication, consultation, cooperation, or command’ from which such an agreement can be inferred.”.... Last, although he must make specific allegations connecting the defendants to the injury, [plaintiff] need not plead an overt act against each defendant since a single act by one conspirator may sustain a conspiracy claim.” Therefore, the Private Defendants' Motion to Dismiss is DENIED. [Some paragraph breaks added.] (Hide the excerpts from the opinion.) 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.