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
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urges a principal to restrict student speech,
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urges a city to hire a black employee to serve a predominantly black community,
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urges a government agency to arrest someone or search his property,
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urges a government agency to seize someone’s firearms,
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urges a university administrator to pass a speech code,
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urges a city to fire an employee who expressed some reprehensible views (left, right, or otherwise), or
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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.