The First Amendment guarantees the right to speak freely without fear of official retribution. One aspect of this right is that a government agency may not punish someone for speaking out, supporting a candidate, or running in an election. Allowing such retribution would be to allow the government to extort citizens into supporting a particular political orthodoxy.
But such extortion is exactly what happened in Nebraska. Robert Bennie, a financial advisor, became active in the Tea Party movement in 2010. Before then, he had never received any disciplinary action from the Nebraska Department of Banking and Finance, a regulatory agency that monitors brokerage advertisements for compliance with financial regulations. After Bennie became politically active, the Department suddenly began a campaign of investigations and threatening letters, despite the fact that Bennie remained fully compliant with all regulations.
Suspecting that these developments were retaliation for his political stands, Bennie sued the Department. Both the district court and the U.S. Court of Appeals for the Eighth Circuit agreed with Bennie that the government took an adverse action against him that was motivated in part by his First-Amendment-protected speech. And yet the courts nonetheless denied Bennie any relief, imposing yet another hurdle: the “ordinary firmness” test.
Under this test, a court must find that the adverse government action was “severe enough to chill a person of ordinary firmness from continuing to speak.” The district court found that the Department’s actions were not “severe enough” to meet this threshold, a holding which the Eighth Circuit affirmed.
Cato, joined by the Reason Foundation and the National Right to Work Legal Defense Foundation, has filed an amicus brief urging the Supreme Court to review the case and put an end to the misguided “ordinary firmness” test. The test was originally devised as a means of determining whether seemingly trivial allegations of retaliation could survive a motion to dismiss. But as shown here, courts no longer use the “ordinary firmness” test to distinguish true retaliation from trifling pushback. Instead, the test allows the government to get away with blatant campaigns of intimidation, so long as it can convince a factfinder that the plaintiff was insufficiently “firm.”
This simply does not square with the Supreme Court’s own “longstanding recognition that the Government may not retaliate for exercising First Amendment speech rights.” Wilkie v. Robbins (2007). As the Court has observed, “Official reprisal for protected speech offends the Constitution because it threatens to inhibit exercise of the protected right.” Hartman v. Moore (2006).The justices can eliminate the “ordinary firmness” test without risking a spate of frivolous lawsuits, because courts already have several early avenues for ensuring that trivial suits for truly minimalharms are thrown out.
The Supreme Court should take up Bennie v. Munn and ensure that the government can no longer punish citizens for their political views.