Facing unresolved constitutional issue, judge sides with free speech
Faced with a First Amendment issue unresolved in the 7th Circuit, a federal judge recently sided with free speech, refusing to dismiss a lawsuit against an Illinois town and one of its police officers.
In the case, Nolan v. Village of Dolton, Zevah Nolan alleges that the officer issued her a baseless ticket for failing to wear a seatbelt several months after she complained to the officer’s superiors about his refusal to investigate allegations she made against her ex-husband. In June 2010, Nolan says, she reported to the officer that her ex-husband was driving the couple’s child without a car seat and that the ex-husband did not have a driver’s license or auto insurance. When the officer failed to act on Nolan’s allegations, Nolan demanded that the Dolton Police Department investigate the officer.
In her lawsuit, Nolan alleges that on Sept. 24, 2010, the officer stopped his squad car next to her vehicle while she was parked at a gas station, approached her and made several angry statements, including, “You filed a case against me. Nothing is going to happen to me,” “We know who you are and where you live,” “What you did was stupid” and “You’re stupid.” The officer then issued Nolan two tickets, including one for failing to wear a seat belt.
Nolan received what amounts to probation under state law for the first ticket. However, she fought the seat belt ticket and prevailed, on the grounds that the law clearly did not require her to wear a seat belt while she was parked at a gas station. She then sued the village and the officer in the U.S. District Court for the Northern District of Illinois, alleging that her complaint to the police department was protected by the First Amendment and that the officer had retaliated against her because of that speech.
The village and the officer moved to dismiss Nolan’s claims, arguing that Nolan’s speech was not protected because it arose from a private matter. In support of their argument, the defendants relied on several precedents from the 7th U.S. Circuit Court of Appeals that held that only speech about matters of public concern is protected against officials’ retaliation. Those precedents extended to other contexts the recognized rule that public employees cannot bring retaliation claims based on the First Amendment unless their speech involves public issues.
In response, Nolan maintained that her speech was about a matter of public concern — police misconduct — and pointed to the 7th Circuit’s 2009 decision in Bridges v. Gilbert, in which the court stepped back from its prior holdings and held that a prisoner could bring a First Amendment retaliation claim even if his speech addressed a private matter.
Even considering all of Nolan’s allegations to be true, as required when considering a motion to dismiss, U.S. District Judge Joan Lefkow on April 21 found Nolan’s speech to be about her child’s safety and thus not a matter of public concern. That finding did not end Lefkow’s inquiry, however, because she concluded that “the issue whether only speech touching on a matter of public concern is protected appears to be unresolved in this circuit.”
After reviewing the pre-Bridges decisions, Lefkow concluded that they had gone down a slippery slope. “These cases reveal,” Lefkow wrote, “that the public concern requirement for protected speech had lost its mooring to the principle that an individual’s speech is protected unless compelling governmental reasons require abridgement of that protection.”
In siding with the Bridges analysis, Lefkow also noted that other circuit courts have declined to apply the public-concern test to retaliation claims brought by non-public employees. One of the decisions Lefkow cited was Van Deelen v. Johnson, in which the 10th Circuit held that “[t]he public concern test … was meant to form a sphere of protected activity for public employees, not a constraining noose around the speech of private citizens.”
Because Nolan is a private citizen, Lefkow held, “her freedom of speech is unabridged absent some governmental reason that defendants have not offered.” Indeed, Lefkow added, no reason existed to abridge Nolan’s speech because “this is a case of a public official’s effort to muzzle a private individual with impunity on matters purely personal to that individual.”
While Nolan successfully resisted the defendants’ motion to dismiss, whether she ultimately will prevail in her lawsuit remains to be seen. More certain, however, is that Lefkow’s well-reasoned ruling will expand First Amendment protection in the 7th Circuit.