In Nebraska 1st Amendment case, courts say the state can penalize you for exercising a right

In Nebraska 1st Amendment case, courts say the state can penalize you for exercising a right

I have long made the case that we don’t effectively have rights, if the government puts arbitrary prices, whenever it pleases, on exercising them.

Government has been doing that in convoluted ways for the last few decades.  With the creation of unelected bureaucracies, the federal and state governments have forced an increasing number of Americans to sue in court, for example, just to assert their right to continue operating businesses while holding their own views on social matters.  Few if any plaintiffs have the resources to maintain their livelihoods through such a long, expensive process.

Sometimes they win in court, but it is a travesty of honest expression, to suggest that they therefore had the use of their “rights.”  If you have to spend years fighting the government itself to exercise your rights, then you don’t actually have them.  Your rights are being denied to you.

They’re being denied in a disgustingly dishonest way, in fact.  Your rights are being attacked insidiously, through the back door, without the policymakers signaling honestly that they don’t want you to have or exercise the rights guaranteed to Americans in the U.S. Constitution.

Sometimes the plaintiffs lose in court as well, although it’s often because the last court in the chain can find some collateral reason not to rule on the case, or overturn a lower court’s clearly flawed ruling.

In Nebraska, an ongoing case has taken this hair-splitting a step further, in a series of rulings that sound to me like they’re in very dangerous territory.  The gist of the matter is this: the courts say the state harassment brought against a businessman and the company he worked for, which ultimately resulted in the businessman being fired as a defensive move, would not have deterred an ordinary person from continuing to exercise his right to free speech.

Therefore, even though the courts have agreed that the Nebraska agency was harassing the company because agency officials just didn’t like the businessman’s political speech, they have ruled in effect that guys like Robert Bennie, Jr. should simply expect to pay a high price — IMPOSED BY THE STATE — for expressing their political views.

I urge you to read the entire report from M.D. Kittle at American Spectator.  I think you’ll agree with my assessment that nothing political that Bob Bennie said or did should have been of the slightest interest to the Nebraska Department of Banking and Finance.  This is not a gray-area case.  Bennie, a financial advisor, became a Tea Party leader, and he spoke publicly against “socialism” and big government, calling Obama a “commie” at one point, and other similar statements.   These sentiments are not properly of interest for any purpose whatsoever with which the Nebraska Department of Banking and Finance is chartered.

But that was the state agency that decided to go after LPL Financial, explicitly because of Bob Bennie’s political views.   There is no question that that’s what the agency officials did.  A FOIA request for agency documents has clarified that.

LPL eventually let Bennie go, because the state agency wouldn’t stop harassing LPL in the hope of discovering minor infractions as long as Bennie was an employee with them.  Bennie curtailed his political activism at that point, since he needed to find another job.  Once he had obtained documentation of the state agency’s targeted vendetta against his political speech, he sued the Department of Banking and Finance.

But the courts have ruled that, although there’s no question the department harassed his firm over Bennie’s political views, and that its actions were in fact “unconstitutional,” Bennie didn’t have a case.  Kittle summarizes the results so far in federal court:

[T]he judge ruled in the state regulators’ favor because their retaliation would not have deterred an ordinary person in Bennie’s position from continuing to speak.

Bennie appealed. He felt more than deterred.

He lost again at the appeals court, for the same reasons.

The appeals court affirmed the lower court’s ruling even as it described the regulator’s actions as “unconstitutional.”

“For the state regulators to allow their apparent disagreement with or even distaste for what Bennie had to say politically, or how he said it, to influence how the department treated him and his employer was wholly inappropriate — and absolutely inconsistent with the First Amendment,” the court wrote in its decision. “That inappropriate, unconstitutional conduct was wrong, regardless of whether the state regulators revealed their retaliatory motives to LPL or anyone else or whether the consequences of their actions were severe enough to be actionable in this case.”

So.  The standard apparently envisioned by these two courts is that if you want to exercise your right to free speech, you must be prepared to see your employer harassed BY THE GOVERNMENT, and lose your livelihood because of that harassment.

Get it straight, here.  We’re not talking about being prepared to lose business from a voluntarily engaged public for sticking to your beliefs (e.g., as Target has).  We’re talking about being prepared to endure harassment — harassment you can’t escape; harassment that is even prompted by reasons entirely unrelated to an individual agency’s charter — from the armed state.

The courts are basically requiring Bennie to prove that the harassment, which the courts themselves have said is unconstitutional, placed an undue burden on his free speech.  As if there is a due burden on free political speech that the state department of banking and finance can properly impose.  Is that defined somewhere?  Does the Nebraska state legislature know about it?  What is that due burden?  Loss of job?  Loss of homestead property?  Loss of savings, professional reputation, years of opportunity-costed work time spent in court?  What?

The basis for this approach is so wrong, you can’t even get there from where we’re supposed to be, with our constitutional rights.  The only thing the courts should have to know is that the Nebraska Department of Banking and Finance acted unconstitutionally.

If we have really gotten to a point where our legal profession would think these rulings were a good-faith posture on the matter, then the legal profession has been left unsupervised for too long.  It’s not judges who ultimately decide if we’re getting the right outcomes.  It’s the people — and it should be.  There is no way to argue that this is right.  It’s directly contrary to the conditions our Founders meant to institute.

The Pacific Legal Foundation is taking the case to the Supreme Court; we must hope the court doesn’t find some excuse for failing to rule on it, in the only way that can be proper.

J.E. Dyer

J.E. Dyer

J.E. Dyer is a retired Naval Intelligence officer who lives in Southern California, blogging as The Optimistic Conservative for domestic tranquility and world peace. Her articles have appeared at Hot Air, Commentary’s Contentions, Patheos, The Daily Caller, The Jewish Press, and The Weekly Standard.


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