Regulation through harassment.

Here is the scenario.  Bob Bennie was a private business man working in a government regulated business.  Bennie was an outspoken Tea Party advocate and Obama administration critic.  Government regulators got Bennie fired from his job in the financial sector, and Bennie sued. His argument is that state regulators violated the First Amendment by retaliating against Bennie’s speech.[1] Here is the kicker. The trial court and the 8th Circuit agreed that the state regulators were looking for reasons to go after Bennie, and that conduct that retaliates against the exercise of a protected right is actionable. But…the courts found that the real question was would “a person of ‘ordinary fairness’ be chilled in the exercise of First Amendment rights by the government’s retaliatory actions?”[2] Interestingly at trial, and on appeal, the courts found that “the tormenting of Bennie would not chill the average person of ‘ordinary fairness’…despite evidence that Bennie subsequently muted his comments and the fact that he was let go from LPL after the state began pressuring the company.”[3]

If the First Amendment doesn’t protect against government retaliation for political speech that it does not like, what does the First Amendment protect at all?  Or to restate, is it appropriate for government agencies to police speech through regulatory harassment? At its foundation, that is the question that is now presented to the Supreme Court of the United States via Bennie’s Petition for Writ of Certiorari.


—  Derek A. Jordan, Esq., Barnes Law


Derek A. Jordan is an associate attorney with Barnes Law, licensed to practice law and land surveying in Tennessee.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.


[1] See: Washington Post

[2] See:

[3] Id.