The Volokh Conspiracy
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Did Elected Officials Violate First Amendment by Orchestrating Public Criticism of (and Racism Allegations Against) Their Critic?
"[P]ublic condemnations, op-eds, and official complaints ... through proxies are independent constitutional violations" if the officials "engaged in conduct that was motivated by the plaintiff's protected speech and had the requisite chilling effect on First Amendment activity."
Jack Lipton was a prominent professor and administrator at Michigan State University, and in 2023-24 "he served as the Faculty Senate Chair," "the liaison between the MSU faculty" and the MSU Board of Trustees, which is elected statewide. He got into a dispute with two members of the BOT, Chair Rema Vassar and member Dennis Denno. Here's the backstory, from the May 28 decision by Chief Judge Hala Jarbou (W.D. Mich.) in Lipton v. Mich. State Univ. Bd. of Trustees (appeal pending):
[According to the Complaint, on] October 20, 2023 (the early days of Lipton's tenure as the Faculty Senate Chair), [BOT member Brianna] Scott sent an open letter to her fellow BOT members. The letter accused BOT Chair Vassar of ethical violations and called for Vassar's resignation. A week later, on October 27, 2023, the BOT held a highly attended meeting to discuss Vassar's alleged misconduct and whether she should resign. Lipton spoke at this meeting in his capacity as Faculty Senate Chair, reading a resolution the Faculty Senate passed that called for Vassar's resignation.
According to the amended complaint, the meeting was contentious and chaotic, and whenever "any meeting attendee spoke in support of holding Vassar accountable for her actions as outlined in Scott's letter, Vassar supporters interrupted and jeered them and attempted to prevent them from completing their statements." The typical rules regarding permission to speak were ignored, and the BOT Secretary was pressured to allow nonregistered speakers to voice their support for Vassar. There was a lack of order, culminating in police officers escorting at least one attendee from the meeting.
After the meeting, a reporter asked Lipton whether he thought the faculty's concerns, and the general allegations against Vassar, had been sufficiently addressed. Lipton, clarifying that "he would speak [to the reporter] as a private individual and not on behalf of the Faculty Senate," said: "The board meeting yesterday, filled with Chair Vassar supporters, demonstrated Trustee Scott's charges of intimidation and bullying in action. The chaos brought and disrespect shown by her supporters could have been stopped by a single statement from Chair Vassar, yet she elected to let the mob rule the room."
In the wake of Lipton's comment, Vassar and her BOT colleague Denno allegedly began a retaliation campaign against Lipton. Vassar and Denno met with MSU students, encouraging them to publicly condemn Lipton and file complaints of racial discrimination against him. Vassar's supporters and associates published statements and op-eds calling Lipton racist, anti-Palestinian, and anti-Muslim, citing his use of the term "mob" to describe the crowd. According to a third-party investigator that MSU hired, Vassar and Denno advised students and supporters on how to attack Lipton for his statement, coordinating with them on the phrasing of these public condemnations and complaints.
The BOT met for its next scheduled meeting on December 15, 2023, however it was held virtually due to security concerns from the October meeting. Vassar and Denno attended this meeting in their official capacities while in a room filled with MSU students, and during the meeting's public comment period, these students spoke out against Lipton. Vassar and Denno invited these students to participate in the meeting with them. Lipton spoke at the meeting—per his responsibilities as Faculty Senate Chair—apologizing for his comment, explaining his intent behind it, and continuing to criticize Vassar and Denno for their actions as BOT members.
After the third-party investigation detailed Vassar and Denno's coordination with students to publicly condemn Lipton for his comment, the BOT voted to censure Vassar and Denno.
Lipton sued, claiming (among other things) that Vassar's and Denno's actions constituted unconstitutional retaliation against his speech to the reporter. The court concluded that Lipton had adequately alleged that the speech was presumptively protected by the First Amendment, because he adequately alleged that he engaged in it as a private citizen, that it was on a matter of public concern, and that it didn't unduly "interfere with the efficient performance of MSU's public services nor the BOT's functions."
But then the court went on to what strikes me as the more unusual holding—that Lipton had adequately alleged that Vassar's and Denno's actions, which basically involved organizing public criticism of Linton, were unconstitutional retaliation.:
{"Any adverse actions, other than 'those that create only de minimis negative consequences,' can 'offend the Constitution.'"} "An adverse action in the First Amendment retaliation context is an action that 'would chill or silence a person of ordinary firmness from future First Amendment activities.'" …
Lipton adequately alleges that … Vassar and Denno used their positions as BOT members to attack Lipton for the comment he made as a private citizen. They made these attacks as BOT members and at BOT meetings. Additionally, Vassar and Denno used their BOT pulpit to funnel adverse action towards Lipton via proxies, leveraging their BOT membership to speak through students, supporters, and members of the public.
These attacks (i.e., public condemnations, op-eds, and official complaints) through proxies are independent constitutional violations so long as it is clear that the defendants engaged in conduct that was motivated by the plaintiff's protected speech and had the requisite chilling effect on First Amendment activity. Lipton alleges facts that illustrate the affirmative actions Vassar and Denno took—while acting as BOT members—that were motivated by Lipton's speech and would chill First Amendment activity of a person of ordinary firmness.
Vassar and Denno crafted the language that others would use to attack Lipton. They pushed students to file complaints. And while engaging in their official responsibilities at the December 15, 2023 BOT meeting, they coordinated with students to raise attacks against Lipton due to his protected speech. Public officials cannot insulate themselves from violating the First Amendment's protections by simply manipulating others to engage in retaliatory conduct—particularly when they leverage their public positions to do so….
Defendants argue that Lipton faced no real adverse action. They note that he was promoted to Associate Dean for Research Analytics after these coordinated attacks on his character. However, according to "an executive search firm associate," Vassar and Denno's alleged coordinated attack against Lipton hindered his employment opportunities outside MSU. "The 'power to substantially affect' a public employee's livelihood could be enough to establish an adverse action.'" And "actions 'designed to threaten' a person's 'economic livelihood' are likely to deter a person of ordinary firmness from engaging in protected speech."
From the allegations, it is reasonable to infer that Vassar and Denno sought to jeopardize Lipton's career and economic opportunities in an effort to change his behavior and prevent continued statements against Vassar's conduct on the BOT. The public condemnations and official complaints by students would chill the speech of a person of ordinary firmness.
Additionally, "campaigns of harassment, when considered as a whole, may amount to adverse action." Looking to the totality of Vassar and Denno's campaign of harassment, both in its scope (public comments at BOT meeting, statements, complaints, etc.) and content (condemnation as a racist), Vassar and Denno's conduct constituted adverse action against Lipton, and it was motivated by his protected speech….
What about Vassar's and Denno's own ability to speak, as elected political officials? Here's what the court had to say:
Vassar and Denno, along with others who spoke out against Lipton, are entitled to take issue with Lipton's phrasing. But the allegations suggest that Vassar and Denno sought to attack Lipton to protect their positions on the BOT; they told students "to help us," a call to action seeking to silence Lipton for his statement that questioned Vassar's conduct on the BOT, not to discuss the implications of a faculty member using what some may have perceived as racially charged language.
"An act taken in retaliation for the exercise of a constitutionally protected right is actionable under § 1983 even if the act, when taken for a different reason, would have been proper." Lipton has plausibly alleged that Vassar and Denno were motivated by retaliation, not a desire to raise concerns in the marketplace of ideas. As Lipton's supervisors, Vassar and Denno crossed the line into conduct the First Amendment forbids, using their positions of public authority to take adverse action against Lipton due to his protected speech.
I appreciate the court's reasoning: People, especially government employees (even tenured ones), may well feel chilled from speaking by these sorts of campaigns of public vituperation. At the same time, elected officials have their own rights to speak (see, e.g., Bond v. Floyd(1966) and the currently pending Libby v. Fecteau). Those rights include the right to associate with others to speak, which would include the right to privately encourage others to speak.
Nor do I see how the law can distinguish "a desire to raise concerns in the marketplace of ideas" from being "motivated by retaliation."
To use an up-to-date example, say, for instance, that an elected trustee is criticized by a pro-Palestinian activist, and she thinks that the activist is actually motivated by anti-Semitism. She therefore publicly condemns him, gets her allies to accuse him of anti-Semitism, and gets students to file complaints based on his speech.
The trustee may well both desire to raise concerns about the activist (and others like him) in the marketplace of ideas and be motivated by "retaliation" in the sense of thinking that the activist's speech merits public blowback. Indeed, the motivations two may be practically impossible to tease apart. And of course, the same would apply if an elected trustee is criticized by a pro-Israel activist, and she thinks that the activist is actually motivated by anti-Palestinian prejudice.
In any event, I thought I'd blog about the opinion, and ask readers what they thought about it. Elizabeth K. Abdnour and Coriann Gastol (Abdnour Weiker LLP) represent plaintiff.
