Thursday, August 19, 2010

Paige v Coyner and Board of Commissioners

The 6th Circuit Court of Appeals released a very interesting opinion towards the end of July. In Paige v Coyner and Board of Commissioners, the plaintiff attended a public hearing and spoke in opposition to a new interstate highway project. Although the plaintiff did not identify herself as an employee, she was in fact employed by a firm involved in development in the area, and her opposition allegedly caused the public official in charge of getting approval for the project to call her employers. During the phone call, the public official mistakenly told the employer that the plaintiff identified herself as their employee during the public hearing and encourage them to discharge plaintiff from their employ. Within a week, they fired her.

Retaliation by public officials for the exercise of First Amendment freedoms is certainly nothing new. The question in this case however was whether the alleged encouragement by the public official to a private employer was sufficient to vest a right to sue under §1983. The Court of Appeals found that it was.

[The public official] could thus be liable not because the firing itself was state action, but because a jury might find that the firing was a reasonably foreseeable consequence of the action taken by [that official]. In other words, once there has been state action (here, the phone call), the proper test for the scope of responsibility for events flowing from that action is reasonable foreseeability, not how close the nexus is between the private actors and the state actors.
The Sixth Circuit went on to analyze the remaining elements of the First Amendment retaliation claim, as well as whether or not there was a sufficient allegation to hold the Board of Commissioners, concluding in each case that there was, and as a result reversing the decision of the District Court dismissing the case.

This decision makes very interesting reading and once again serves to emphasize that public officials should not be involved in taking any action that might be deemed an effort to curtail freedom of speech.

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