Posted by Eugene Volokh:
Lobbying and "Propaganda" as Legally Actionable "Conspiracy"?
http://volokh.com/archives/archive_2009_03_22-2009_03_28.shtml#1238091475
In [1]Moxley v. Town of Walkersville (D. Md. Mar. 6), land owners are
suing over the town�s denying a religious group�s land use permit
application. The plaintiffs allege that the decision was based largely
on the group�s being Muslim, which would violate the Free Exercise
Clause. There do indeed seem to be facts that support the allegation,
so the town's action may well be unconstitutional, as well as a
statutory violation. (I set aside whether these particulars plaintiffs
have standing to raise the group�s rights.)
But the plaintiffs sued not only the town but also private citizens
who allgedly (1) discussed with town officials how the land use permit
can be blocked, and (2) "embarked on a propaganda campaign aimed at
furthering their goal," by "set[ting] up internet sites, hir[ing]
'experts,' and ma[king] statements in newspapers and blogs.publicly
supported the attempts to block it." And the court [2]refused to
dismiss these claims against the private citizens, on the grounds that
the private defendants were conspiring with the public defendants.
Can this be right, though? Can otherwise First-Amendment-protected
petitioning of the government -� even petitioning for an action that
would be unconstitutional if the government did it -� coupled with
otherwise First-Amendment-protected public support for the
government�s plans constitute a civilly (or even criminally)
punishable conspiracy? (I should note that some of the statements were
alleged to be false, so they might not be First-Amendment-protected.
But even some false factual statements are protected by the First
Amendment; some of the allegedly false statements sound like matters
of opinion; and in any case, the allegations also focus on statements
that can't be labeled false factual assertions.) I'm not an expert on
federal civil rights conspiracy claims, but this strikes me as
impermissible.
Of course, speakers who call for unconstitutional action aren�t
terribly sympathetic. But such lawsuits could be filed even when it�s
far from clear that the action is unconstitutional. The private
defendants would have to spend their own money (not the government
entity�s money) to defend themselves. Also, as I understand it, such
private citizens wouldn�t even have the qualified immunity defense
that's available to government officials when the matter is unsettled.
So if some person or group
* urges a principal to restrict student speech,
* urges a city to hire a black employee to serve a predominantly
black community,
* urges a government agency to arrest someone or search his
property,
* urges a government agency to seize someone's firearms,
* urges a university administrator to pass a speech code
* urges a city to fire an employee who expressed some reprehensible
views (left, right, or otherwise)
* urges a city to fire an employee for the employee's off-duty
sexual conduct
and then publicly supports this action, he could find himself sued for
his advocacy, on the grounds that his interactions with the government
make the speech part of a "conspiracy." Maybe he'll win at trial and
maybe he'll lose, depending on how a court resolves the often vague
question of whether the lobbied-for action was unconstitutional. But
he'll certainly be facing a massive legal bill, just for expressing
certain views and interacting with government officials while doing
so.
Here is an excerpt from the statement of facts as plaintiffs allege
them to be -� again, I focus here only on the actions of the private
defendants �- and from the court�s reasoning refusing to dismiss the
lawsuit against the private defendants. Tell me, please, if there's
something I'm missing.
([3]Read excerpts from the opinion.)
Plaintiff[s] ... own a 224-acre parcel of land located at 8939
Woodsboro Pike in the Town of Walkersville, Maryland, known by the
parties in this lawsuit as the Moxley Farm. On September 7, 2007,
Plaintiffs reached agreement to sell the Moxley Farm to the
Ahmadiyya Movement of Islam, Inc., a corporation representing the
Ahmadiyya Muslim Community (�AMC�). [Footnote: The AMC is not a
party to this action.] The AMC intended to use the Moxley Farm as a
place of worship and residence for its imam, as well as to hold an
annual three-day religious event called the Jalsa Salana.
Plaintiffs' seventeen-count Amended Complaint alleges that the sale
of the Moxley Farm to the AMC was blocked by government officials
and private citizens in a concerted effort motivated by anti-Muslim
hostility [in violation of, among other things, the First and
Fourteenth Amendments]. [The government officials and private
citizens were all named as defendants, and they moved to dismiss
the complaint.]
On August 20, 2007, the AMC publicly disclosed its intention to
build a mosque on the Moxley Farm. Two days later, on August 22,
2007, Defendant Weddle, a Town Commissioner, introduced an
amendment to the zoning ordinance to prohibit places of worship in
the agricultural zoning district (the �Weddle Amendment�).
On September 7, 2007, while the Weddle Amendment was still pending,
the AMC filed a petition for a special exception under Walkersville
Code § 88-24.3 to establish a place of worship with an ancillary
multi-purpose recreational facility on the Moxley Farm. The AMC
retained various land use professionals (in the fields of traffic
engineering, civil engineering, land planning, fire and rescue
safety, architecture, and real estate appraisal) to develop a plan
that would satisfy public health, safety and welfare issues. The
AMC commissioned an examination of traffic patterns for its
proposed use, which found that any impact on local traffic would be
minimal for 362 days per year, and would not be significant even
during the Jalsa Salana event....
On October 13, 2007, one month after the application was filed,
Private Defendants Marino and Berryman are alleged to have held a
�secret meeting� at Creamery Park in Walkersville to discuss
strategies in preventing the AMC's purchase of the Moxley Farm.
Three of the Town Commissioners (Defendants Winch, Schildt, and
Weddle) allegedly attended this meeting. Defendant Berryman, acting
as a spokesman for Citizens of Walkersville, stated that the
�[Citizens of Walkersville has] connections to the Burgess, the
[Town Commissioners], the [Appeals Board], [p]olice, [f]ire,
[r]escue, [m]edia, [r]etirement homes, GVAA, the City of Frederick,
and more.�
Commissioner Weddle, a prominent member of the allegedly
conspiracy, acted as a moderator and gave �talking points� to use
against the AMC and told the Private Defendants that following the
points would avoid violations of the Religious Land Use and
Institutionalized Persons Act of 2000 (�RLUIPA�). Commissioner
Weddle discussed his proposed Weddle Amendment and advised the
Private Defendants about how to approach the public hearings on the
AMC's petition, including refraining from using �terms like Muslim,
those individuals, religion etc.,� and how many people should
testify. Commissioner Weddle then offered $500 to the Private
Defendants to pursue the goal of �beat[ing] the Muslims.�
A list of recommended attorneys was given to the Private
Defendants, and public documents (including the AMC's application
for a special exception) were removed from public offices and
brought to the meeting for use by the Private Defendants.
Commissioner Winch also spoke to the group for 25 minutes,
explaining that he was concerned that other members of the AMC
would move to the Moxley Farm and could thereby become politically
active in the Town of Walkersville. [Footnote: After the meeting
ended, Commissioner Weddle told the Private Defendants that �he
couldn't meet openly with [Citizens for Walkersville] anymore until
after November 1 st, as it would be a conflict of interest.�
(November 1, 2007 was the original hearing date on the AMC's
application.)]
Over the next several months, Plaintiffs allege that the Defendants
embarked on a concerted propaganda campaign intended to prevent the
AMC from being approved for a special exception. Private Defendants
Marino and Berryman made numerous false statements about AMC and
its proposed use of the Moxley Farm, including describing AMC as
�radical religious extremists,� calling their application
�willfully deceiving,� suggesting that they �strangle children due
to dress code violations,� and claiming that they intended to build
a �huge settlement� by �occupying new land, especially in
Walkersville, MD.�
Defendant Marino is alleged to have stated that �[w]e must be
diligent in protecting the lifestyle and environment we have in
Walkersville.� Defendant Berryman is alleged to have stated that
�I'm trying to keep Frederick free of people who don't belong.�
Defendant Berryman also posted a statement on the internet that
declared �I will not be �[d]eceived� by the Muslim Ahmadiyya
Group's efforts to infiltrate Frederick County. Neither should
you!,� and also warned that the AMC's use of the Moxley Farm could
be used to spread radical Islamic ideology. The Private Defendants
also set up internet sites, hired �experts,� and made statements in
newspapers and blogs....
Plaintiffs' Amended Complaint pleads ample facts to support their
contention that the Private Defendants joined with the Government
Defendants to block the sale of the Moxley Farm to the AMC. After
establishing Citizens for Walkersville, an organization allegedly
dedicated solely to preventing the AMC from purchasing the Moxley
Farm, the Private Defendants organized and participated in the
October 13, 2007 meeting.
Three Town Commissioners attended that meeting, and allegedly
instructed the Private Defendants in some detail about how to
proceed in their joint effort to block the sale of the Moxley Farm
to the AMC. Defendant Berryman stated that Citizens for
Walkersville had �connections� to various local governmental
organizations, including the Burgess, the Commissioners, and the
Board of Appeals. After the meeting, Plaintiffs allege that the
Private Defendants embarked on a propaganda campaign aimed at
furthering their goal of blocking the sale of the Moxley Farm. They
set up internet sites, hired �experts,� and made statements in
newspapers and blogs.
Based on these same allegations, Plaintiffs' Amended Complaint is
clearly sufficient to support the conspiracy claim at this early
stage in the litigation. �Turning to the sufficiency of the factual
allegations, this Court finds no reason to dismiss [plaintiff's]
claim. Neither party disputes that Section 1985(3) mandates that an
agreement among defendants, at least to the extent that they all
�actually shared the same conspiratorial objective or motive,� must
be shown for there to be a conspiracy ... [Plaintiff] need not,
however, allege �exactly how the agreement was made -- i.e., ...
where and when, and with what words, the agreement was formed.� ...
Rather, [plaintiff] is required only to allege an agreement or make
averments that there was a � �communication, consultation,
cooperation, or command� from which such an agreement can be
inferred.�.... Last, although he must make specific allegations
connecting the defendants to the injury, [plaintiff] need not plead
an overt act against each defendant since a single act by one
conspirator may sustain a conspiracy claim.�
Therefore, the Private Defendants' Motion to Dismiss is DENIED.
[Some paragraph breaks added.]
([4]Hide the excerpts from the opinion.)
References
1. http://volokh.com/files/moxley.pdf
2. http://volokh.com/files/moxley.pdf
3. file://localhost/var/www/powerblogs/volokh/posts/1238091475.html
4. file://localhost/var/www/powerblogs/volokh/posts/1238091475.html
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