October 5, 2016

PLF asks the Supreme Court to protect First Amendment rights

By Wen Fa Attorney

America is a nation in which citizens can say what they think of politicians without retribution. Or at least that’s how it’s supposed to be. Bob Bennie, recognized by Barron’s Magazine as one of the most successful financial advisors in the nation, was an activist in the local tea party in Lincoln, Nebraska.

A prominent Nebraska newspaper published an article discussing the activities of the tea party, and quoted Bennie, in his capacity as a party leader, calling President Obama “a communist” and an “evil man.” Although this speech did not implicate any financial regulation, regulators from the Nebraska Department of Banking and Finance took it upon themselves to retaliate against Bennie by pressuring his employer to impose heightened supervision, conduct unannounced audits, and impose other sanctions on Bennie. Because the Department possesses substantial regulatory power, Bennie’s employer did exactly as told — and Bennie began to self-censor his speech.

Today Pacific Legal Foundation filed this petition asking the Supreme Court to restore Bennie’s First Amendment rights.

This case is about an appellate court’s duty to protect First Amendment rights. To prevail, Bennie must show that he engaged in speech protected by the First Amendment, that the government retaliated against Bennie for that speech, and that the retaliation was sufficient to chill a person from ordinary firmness from continuing to speak. The district court determined that Bennie satisfied the first two requirements. But it ruled against Bennie because, in its view, the retaliation wasn’t significant enough. The Eighth Circuit affirmed because it reviewed the district court’s determination for clear error, rather than conducting its own independent review. In other words, Bennie lost because the district court’s erroneous denial of his First Amendment rights was not “clearly” erroneous.

Appellate courts should correct erroneous deprivations of First Amendment rights, regardless of whether the error was clear or not. Indeed, the Supreme Court has observed that even temporary denials of free speech rights irreparably injures the speaker. Without the Court’s intervention in this case, Bennie would be denied his First Amendment rights forever.

That is why Pacific Legal Foundation, joined by local counsel from Husch Blackwell, is asking the Court to take the case. PLF hopes to continue its streak of consecutive victories at the Supreme Court and, even more important, ensure that appellate courts will do their job in protecting the First Amendment rights of all citizens.

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