January 4, 2017

High Court Should Hear First Amendment Case Against Bullying Bureaucrats

By Wen Fa Attorney

For most of his career, Nebraska resident Bob Bennie happily conducted his business as a successful financial advisor without government harassment.

But that changed after he was quoted in a newspaper making controversial remarks about President Obama.

Suddenly, Bennie had a bullseye painted on his back by regulators who oversee his industry. The regulators relentlessly harassed Bennie’s employer until Bennie’s managers fired him from his job.

Now, the U.S. Supreme Court is poised to decide whether to hear Bennie’s civil rights lawsuit against these vengeful bureaucrats.  Everyone who values free speech should hope the justices take his case and make it clear that government can’t treat the exercise of First Amendment freedom as a punishable offense.

Bob Bennie’s troubles with vindictive bureaucrats began after he gave an interview to the Lincoln Journal Star in 2010, in his role as a Tea Party leader.  Asked to describe his differences with the president, Bennie responded: “I’m a freedom loving American, and he’s a communist. I’m honest and he’s dishonest. He didn’t tell us all of what [he] was going to do. I believe he’s an evil man.”

Searing words, no question.  But even harsh political commentary enjoys First Amendment protection. Or at least that’s how it works in theory.

In practice, regulators from the Nebraska Department of Banking and Finance launched a vendetta campaign against Bennie after reading his comments.  He had just been named a top financial advisor by Barron’s, but now he was in the regulators’ crosshairs.

Bennie’s comments had nothing to do with financial regulations.  But in snark-filled emails to each other, regulators vowed to punish him, with one promising to “Hang Him High.”  They contacted his employer, LPL, asking if it had policies to stop Bennie from sharing his political views.  Warning that they needed “some comfort” that the firm was staying “on top of this activity,” they suggested heightened supervision for Bennie, unannounced audits, and other sanctions.  One bureaucrat even threatened to “invoke whatever administrative action deemed necessary” to ensure compliance.

LPL soon relented, first by increasing its scrutiny of Bennie’s speech — and then by firing him.

Shocked, Bennie filed a public records request to find out what sparked the regulatory crusade.  His suspicions were borne out: The department’s internal communications confirmed that regulators were incensed over his comments about the president.

Bennie’s first response was to limit his political involvement, hoping to ward off further government oppression

His second move was to take a stand for his constitutional rights, and sue the oppressors.

He was soon in for another shock: Although the federal trial court acknowledged the regulators acted wrongfully, it refused to provide him any relief.   In this kind of First Amendment case, the plaintiff must establish that the government’s retaliatory actions would have intimidated an average person – a “person of ordinary firmness” – into no longer speaking freely.  Incredibly, the trial court held that this standard was not met.   Despite the regulators’ pressure on LPL to discipline Bennie – ending in his dismissal – the court concluded that a “person of ordinary firmness” would have continued to speak as if nothing had happened.

Still more incredible: A three-judge panel of the Eighth Circuit upheld the ruling on appeal, even while implying it was wrong.  Indeed, one judge voted in favor of Bennie, while the other two suggested they would also have done so – but they ruled that they were bound by the trial court’s findings.

In appealing to the Supreme Court, Bennie is stressing not just that bureaucrats can’t be allowed to retaliate against free speech, but that courts must not defer to bureaucrats who do so.  Nor should appellate courts passively defer to misguided lower courts, as the Eighth Circuit did.  When precious First Amendment rights are at stake, every judge has a duty to independently defend the Constitution, not rubber-stamp other courts’ decisions.

The Supreme Court is scheduled to consider Bennie’s case on January 6.  Eight states, nine law professors, and four free-speech advocacy groups have joined Bennie in urging the justices to grant review.

In his brief, First Amendment scholar Eugene Volokh argues that Supreme Court intervention is needed to ensure “greater consistency” on such cases from one court to the next.

The states’ brief (led by Arizona) puts the core issue concisely: “In a free country, citizens may criticize their government without fearing reprisals from those who hold the levers of power.”   The Supreme Court should accept Bennie’s case – and rule in his favor – to ensure that all of us have the right to voice our views without the risk of government reprisal.

Published by The Daily Caller

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