Citizen/activist free speech claim dies on the vine

Few citizen activist/free speech cases reach the Second Circuit. This one did. The Court of Appeals finds the plaintiff cannot state a claim that a school district retaliated against her for her public advocacy against the district.

The case is Munoz-Feliciano v. Monroe-Woodbury School District, a summary order decided on January 4. I briefed and argued this appeal. Plaintiff spoke out against the district's failure to deal with student bullying and other issues. She then ran for the school board. During the campaign, she claims district officials conducted a smear campaign against her, falsely telling voters that she was aligned with the controversial Hasidic Jews who live in the community. After the election (plaintiff lost) she claims the district failed to protect her daughter from bullying at school.

When can governmental officials get away with in attacking candidates for public office? Both sides have a free speech interest. The officials have the right to speak, and the candidates have the right to run without actionable retaliation. The Court of Appeals (Walker, Katzmann and Winter) says "as to the alleged 'smear campaign,' Feliciano has no First Amendment right to prevent public officials from criticizing her. ... in the absence of 'threats, intimidation, or coercion,' a public official’s advocacy is not actionable in a First Amendment retaliation suit.'" Even if defendants made defamatory public comments, "because Feliciano’s candidacy rendered her a public figure, the allegedly false statements only lose First Amendment protection if they were made with actual malice, that is, with knowledge of or reckless disregard for their falsity." The complaint does not allege that the district officials spoke out against plaintiff with malice.

Plaintiff's other retaliation claim also fails. The district's conduct against her daughter took place too long after plaintiff engaged in protected speech. That kills off the causal connection necessary to plead a First Amendment case. Without direct evidence of retaliatory intent ("we hate you for what you said"), the circumstantial evidence of retaliation has to be quite tight. Although I argued that the district retaliated against plaintiff at the first available opportunity, the Court of Appeals rejects that argument, and the case is dismissed for good.