The First Amendment to the United States Constitution primarily protects our right to free speech, against government interference. Without the right to free speech and free expression, we are not Americans. None of our other rights would matter if we weren’t able to speak up to protect them. It also protects freedom of religion, the right not to see the government establish an official religion, the freedom of the press, the freedom of the media to communicate and receive information, the right of the people to peaceably assemble, and the right to petition our government for a redress of grievances.
Those are the precious rights contained in the very First Amendment to the Constitution and we see them violated every single day. We see governments who retaliate against people for exercising those rights. That is the type of litigation that we pursue to help people get a remedy for these violations of their rights.
What Are Some Examples of Cases Where the Government Has Violated People’s Rights?
We represented a police chief who had spoken to a government agency about the mayor of his community insisting that he fire all of the white police officers. That’s illegal race discrimination and the chief didn’t feel his officers had done anything wrong that would merit their being fired. He stood up to the mayor and the mayor began retaliating against him, especially after he reported it to the Equal Employment Opportunity Commission. Here, you have an instance of both a First Amendment retaliation for reporting the misconduct but also retaliation for opposing race discrimination.
We see many examples of people who spoke their minds to police officers and then endured arrest for doing so. We have a case where an individual posted a parody Facebook page of the Parma Police Department and the police retaliated against him with trumped up charges of having interfered with their operations. That’s another example of First Amendment retaliation.
The First Amendment applies only to governmental action—not behavior by private employers, private companies, or private, non-government individuals—unless they acted in concert with government actors.
Does the First Amendment apply to private companies or individuals' conduct?
Generally, no. The First Amendment applies only to governmental action. So it’s only governmental action that we can address using the First Amendment, including applying it to the states through the 14th Amendment of the Constitution.
People call us all the time complaining about their private employers or private businesses (like Facebook or Twitter) violating their supposed "free-speech" or "First Amendment rights." That's not really a thing and there's nothing we can do about that.
The only exception would be if you can show evidence that private, non-governmental actors are acting in concert or conspiracy with government. (And you can't speculate about that or assume that.)
What results do clients generally expect when pursuing a First Amendment case?
In First Amendment litigation, we typically are trying to pursue for our clients money damages for emotional harm, and punitive damages for what’s happened to them. There might be some economic damage, although we have found that it is relatively rare. It’s usually the emotional trauma associated enduring retaliation, which is not insignificant, but it’s intangible. Punitive damages seek to punish the individual government actors. You generally can’t obtain punitive damages from a government entity but you can seek it from the individuals who engaged in that violation. The idea is to try to punish them and deter them from doing that in the future.
In some cases we are also pursue injunctive relief for our clients—that is, a court order to stop the government from engaging in continuing misconduct.