Nashville Councilman’s Threats that Resulted in Firing of Outside Lawyer Likely a Violation of the First Amendment

​Wouldn’t it be nice to just get those stupid people who keep advocating for stupid things to just shut up – and if they won’t stop, to get them fired so they will be too busy trying to keep their homes that they will have no time to keep advocating for stupid things!
 
That rant, in a nutshell, characterizes the philosophical depth of the growing practice by leaders at the national and the local level to punish speech by misusing the powers of their office. This is apparently a communicable disease, one that has infected leaders in both parties and Americans across the ideological spectrum.
 
At the national level, President Trump signed executive orders punishing law firms – restricting their access to government contracts and federal buildings (presumably, including federal courthouses) – due to the past political activities of former law firm members. We’ve seen Federal Communications Commission Chairman Brendan Carr misuse his ability to approve corporate mergers to force a multimillion-dollar settlement over a specious legal claim and to try to get a late-night TV host fired.
 
But Democrats play this game as well. At the national level, the Biden administration nurtured a breathtakingly large scheme of political censorship. Efforts ranged from deploying FBI agents to secretly jawbone social media companies into deplatforming disfavored speech, to providing taxpayer funds to an NGO to bully advertisers into boycotting conservative and libertarian news outlets.
 
Enter Bob Mendes, progressive politician and former Nashville city council member. (Hat tip to Eugene Volokh.)
 
The law firm of Baker Donelson serves as Nashville’s outside counsel. Mendes warned that the firm might well lose this account if it allowed one of its lawyers, James DeLanis, to continue to chair the election committee to certify a referendum that opposed a property tax increase. City officials pressured the law firm to keep the referendum off the ballot and to curb DeLanis’s efforts. As a result of official threats, DeLanis was fired by Baker Donelson.
 
Now Sixth Circuit Court of Appeals Judge Jeffrey Sutton, joined by Judge Julia Smith Gibbons, has issued an opinion on the misuse of official power to curb the First Amendment. Two major findings leap out from this ruling.
 
First, private firms can fire people for speech. Under the First Amendment, a business has associational rights. Thus, the judges found: “Baker Donelson, for better or worse, sought to protect its client base, not to punish DeLanis for his speech.” The court also found that the law firm is eligible for qualified immunity in this case, limiting its liability.
 
Second, public officials can be held liable for misusing their powers to curb speech. The court found that “Mendes spearheaded an effort to defeat the citizen tax referendum at issue. He ‘berated’ DeLanis at a Commission meeting for orchestrating ‘pre-baked, political theater.’” The court continues: “When a public official warns a law firm that the city may pull business from it due to the public-office actions of one of its lawyers, that suffices to deter a person ‘of ordinary firmness’ from exercising his First Amendment rights in that office …”
 
The Sixth Circuit reminds us of the limits of official power and the breadth of the First Amendment. This opinion should be required reading for any elected or appointed official.

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