One Of Worst Decisions in Recent U.S. Supreme Court History Is All But Ignored...

Court carves out exception to First Amendment; Says federal employees cannot be sued for violating citizens' right to free speech

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The U.S. Supreme Court recently issued a decision that significantly erodes the U.S. Constitution’s right to free speech.

It is one of the only issues in recent memory that both extremes of the Court agreed about.

So if a federal official comes down on you like a ball peen hammer because of something you said, he or she is immune from being sued.

What is a right without a remedy? MEANINGLESS.

The June 8 decision in Egbert v. Boule overturned a ruling by the U.S. Court of Appeals for the Ninth Circuit, based in San Francisco, against a Border Patrol agent who physically assaulted an innkeeper and then had him investigated by government agencies, including the IRS, after he filed a complaint.

Robert Boule, the owner of a bed and breakfast in Washington state, near the Canadian border, says he was lifted off the ground by Border Patrol Agent Erik Egbert, thrown against an SUV, and then to the ground. Egbert was checking the immigration status of one of Boule’s guests (who was in the country legally) and Boule asked him to leave.

Egbert then retaliated against Boule for filing a complaint, which is where the free speech violation comes in. Egbert reported Boule’s license plate to Washington’s Dept. of Licensing for illegal activity and asked the local assessor and the IRS to investigate. All of them did but found no impropriety.

Boule filed a federal lawsuit charging that Egbert violated his Fourth and First Amendment rights under the U.S. Constitution.

Deference or Abdication?

What is most extraordinary about the Court’s decision, written by Justice Clarence Thomas, is that it left Boule entirely without a remedy for the gross violation of his right to free speech.

Justice Thomas said Congress is in a “better position to decide whether or not the public interest would be served by imposing damages on federal officials…. There are many reasons to think that Congress, not the courts, is better suited to authorize such a damages remedy.”

The U.S. Supreme Court, the guardian and final interpreter of the Constitution, says Congress is in a “better position” to interpret the First Amendment.

Thus, a fundamental Constitutional right is contingent upon who the violator works for. If a federal employee violates your free speech rights, fuhgeddaboudit.

Meanwhile, Americans can sue state and local government employees for violating their First Amendment rights (42 U.S.C. § 1983). State and local governments somehow manage.

WHY?

The Court expressed concern that allowing federal employees to be sued for First Amendment violations would pose an acute “risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.”

What about Boule? He was forced to pay $5000 to an accountant to assist him in a retaliatory IRS tax audit. He was physically assaulted. His business was threatened for no reason. He was placed in fear. So what?

Even the dissent failed to stand up for Boule’s First Amendment rights.

The dissent agreed that Boule’s First Amendment claim was not cognizable because it could potentially reach beyond federal law enforcement officers to virtually all federal employees.

The case was initially dismissed by a lower court but reinstated by the Ninth Circuit based on a 1971 U.S. Supreme Court decision (Bivens v. Six Unknown Fed. Narcotics Agents) that contains a kind of formula to determine whether citizens can file lawsuits against federal workers.

The Court said it never officially recognized a “Bivens” cause of action for a First Amendment retaliation claim and declined to do so. Then it proceeded to narrow the rest of the Bivens remedy to the point of a pin.

The majority said Boule couldn’t sue Border Patrol agents because that “presents national security concerns.” The Court said Boule had an alternative remedy, the Border Patrol’s “grievance procedure,” which resulted in Egbert’s dismissal for “lack of integrity.” The Court said it is “a legislative determination” as to whether that remedy is adequate.

The Court said a citizen lawsuit against a federal official should be foreclosed if there is '“any rational reason (even one) to think that Congress is better suited to ‘weigh the costs and benefits of allowing a damages action to proceed.’”

Justices John Roberts, Samuel Alito, Brett Kavanaugh and Amy Coney Barrett joined Thomas in the majority. Justice Neil M. Gorsuch filed a concurring opinion. Three judges concurred in part and dissented in part - Justices Sonia Sotomayor, Stephen Breyer and Elena Kagan.