Maureen Mirabella v. Susan Villard , 853 F.3d 641 ( 2017 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-3171
_____________
MAUREEN MIRABELLA; JOHN MIRABELLA
v.
SUSAN VILLARD; WILLIAM VILLARD;
SUSAN BRAUN; ROBERT BRAUN;
MONTGOMERY TOWNSHIP BOARD OF
SUPERVISORS; SUPERVISOR JOSEPH P. WALSH;
SUPERVISOR MICHAEL J. FOX;
SUPERVISOR ROBERT J. BIRCH, Esq.;
SUPERVISOR CANDYCE FLUEHR CHIMERA;
MONTGOMERY TOWNSHIP;
SUPERVISOR JEFFREY W. MCDONNELL
Joseph P. Walsh; Jeffrey W. McDonnell,
Appellants
______________
APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT
OF PENNSYLVANIA
(D.C. No. 2-14-cv-07368)
District Judge: Honorable Berle M. Schiller
_____________
Argued: July 12, 2016
______________
Before: FUENTES,* SHWARTZ and RESTREPO,
Circuit Judges.
(Filed: April 4, 2017)
______________
Harry G. Mahoney [ARGUED]
Peter R. Kulp
Deasey, Mahoney & Valentini
1601 Market Street
Suite 3400
Philadelphia, PA 19103
Counsel for Appellants Joseph P. Walsh and Jeffrey
W. McDonnell
John Mirabella [ARGUED]
1600 Market Street
Suite 1810
Philadelphia, PA 19103
Counsel for Appellees
*
Honorable Julio M. Fuentes assumed senior status
on July 18, 2016.
2
______________
OPINION OF THE COURT
______________
RESTREPO, Circuit Judge.
Appellees Maureen and John Mirabella petitioned their
local government for assistance in a dispute with their
neighbors and, at the same time, threatened the local
government with litigation. A local official responded, via
email, by barring the Mirabellas from communicating directly
with any members of the local government, other than its
counsel. Local officials also threatened to move for sanctions
against the Mirabellas for frivolous litigation if they filed suit.
The Mirabellas allege that the government officials
violated their First Amendment rights in two ways: (1) by
retaliating against the Mirabellas for the exercise of their First
Amendment rights and (2) by violating the Mirabellas’ First
Amendment right to petition the government for redress of
grievances. As to these claims, the District Court denied the
Defendants’ motions to dismiss and denied qualified
immunity. The government officials now appeal on qualified
immunity grounds. For the reasons below, we conclude that
the Mirabellas have adequately alleged both a retaliation
claim and a violation of their right to petition. The rights
allegedly violated, however, were not clearly established for
the purpose of qualified immunity. Therefore, we are
constrained to reverse.
3
I1
This case arises out of a dispute between the
Mirabellas and their neighbors regarding a public wetlands
abutting their properties. The wetlands is owned by
Montgomery Township, Pennsylvania. The Mirabellas allege
that their neighbors extended their backyards into the public
wetlands by attempting to fence in the open space, placing
playground equipment there and landscaping it.
The Mirabellas complained to the Township, which
removed the fence, required the neighbors to move their
playground equipment and—initially—required the neighbors
to stop landscaping the open space. Nevertheless, the
Mirabellas allege, the neighbors continued to “cut and clear”
the open space “using driving mowers, weed whackers, push
mowers, chainsaws and other means.” App. 39. The
Mirabellas continued to complain about this, but the
Township ultimately reversed course and gave the neighbors
permission to mow the open space.
The Mirabellas viewed the Township’s response as
overly permissive and environmentally destructive. For these
reasons, the Mirabellas—who are both attorneys—notified
the Township Board of Supervisors by email that they
intended to sue their neighbors for “encroachment and
destruction” of the open space. App. 119. The Mirabellas
protested “the Board’s failure to . . . protect our natural open
1
We recite the facts only as necessary for the
purposes of this appeal, which involves a single count of a
nine-count complaint. The only remaining defendants are
Appellants Joseph Walsh and Jeffrey McDonnell.
4
spaces,” which put them “in the position of having to sue
neighbors in order to see that our environment is preserved.”
Id. The Mirabellas further stated that as the owner of the
open space, “the Township will be an indispensable party in
this litigation.” Id. Walsh and McDonnell interpreted this as
a threat that the Mirabellas would sue the Township.
On the same day the Mirabellas ostensibly threatened
litigation, the Township responded. Appellant Joseph Walsh,
Chairperson of the Board of Supervisors, wrote to the
Montgomery Township Solicitor and copied the Mirabellas.
Walsh wrote that “[i]f the Township is sued by the Mirabellas
make sure our insurance counsel motions the court for
sanctions . . . as they have no standing to file such a frivolous
action.” App. 121. Another member of the Board of
Supervisors, Appellant Jeffrey McDonnell, concurred later
that evening. He wrote: “I agree. I would also suggest our
[attorney] put them on notice now that we will seek
san[c]tions so there’s no surprise.” App. 126.
John Mirabella replied within minutes defending the
potential lawsuit as non-frivolous. He requested that the
Board of Supervisors provide “any legal authority to support
the Board’s decision and your claim that we do not have
standing.” App. 123.
Later that night, at 11:26 p.m., Walsh replied from his
iPhone. Walsh’s email—later an impetus for the Mirabellas’
First Amendment claims—stated:
Dear Mr[.] Mirabella and his wife attorney.
Please direct all further communications to the
Township attorney. Please never contact me,
5
the Board of Supervisors or the Township
employees directly. Do not call me at work,
email me at work or speak to me in public or
private. The dye is caste [sic].
App. 125 (emphasis added). Walsh copied this “no contact”2
email to numerous Township officials, including the Board of
Supervisors, Township Manager, Planning and Zoning
Director and members of the police department.
Thereafter, the Mirabellas attended one meeting of the
Board of Supervisors, at which they allegedly protested the
destruction of the open space and expressed their “dismay and
anger” over Walsh and McDonnell’s emails. App. 45.
The Mirabellas filed this lawsuit under 42 U.S.C.
§ 1983, alleging, inter alia, violations of their First
Amendment rights. The defendants filed motions to dismiss
under Federal Rule of Civil Procedure 12(b)(6), in which they
asserted a qualified immunity defense. The District Court
dismissed all of the Mirabellas’ claims except for certain First
Amendment claims against Walsh and McDonnell.
In its opinion, the District Court construed the
Mirabellas’ surviving First Amendment claims as alleging
2
The term “no contact” is used to refer to a rule of
professional conduct, prohibiting contact with a represented
person, regarding the subject of the representation, absent
consent or legal authority. 2 Geoffrey C. Hazard, Jr. et al.,
The Law of Lawyering § 39.01 (4th ed. 2016). We discuss
Pennsylvania’s rule in more detail below. See infra
Part IV(A)(3).
6
two violations: (1) retaliation against the Mirabellas for the
exercise of their First Amendment rights to free speech and to
petition the government for redress of grievances and (2) a
direct violation of the Mirabellas’ First Amendment right to
petition the government. As to both claims, the District Court
found that the Mirabellas had pled a constitutional violation.
The District Court denied qualified immunity via a very brief
analysis. Walsh and McDonnell now appeal, alleging that
they are entitled to qualified immunity on both claims.
II
The District Court had jurisdiction pursuant to
28 U.S.C. § 1331. We have jurisdiction over the District
Court’s denial of qualified immunity under 28 U.S.C. § 1291and the collateral order doctrine. L.R. v. Sch. Dist. of Phila.,
836 F.3d 235, 240 (3d Cir. 2016). The qualified immunity
issue before us is solely a question of law and is, therefore,
immediately appealable as a final order. Zaloga v. Borough
of Moosic, 841 F.3d 170, 174 n.3 (3d Cir. 2016). We exercise
plenary review. L.R., 836 F.3d at 241. As this is an appeal
from the denial of a motion to dismiss, we accept the
allegations in the complaint as true. Mammaro v. New Jersey
Div. of Child Prot. & Permanency, 814 F.3d 164, 166 (3d Cir.
2016).
III
“Qualified immunity shields federal and state officials
from money damages unless a plaintiff pleads facts showing
(1) that the official violated a statutory or constitutional right,
and (2) that the right was ‘clearly established’ at the time of
the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731,
7
735 (2011) (citation omitted). “A Government official’s
conduct violates clearly established law when, at the time of
the challenged conduct, ‘[t]he contours of [a] right [are]
sufficiently clear’ that every ‘reasonable official would [have
understood] that what he is doing violates that right.’” Id. at
741 (alterations in original) (quoting Anderson v. Creighton,
483 U.S. 635, 640 (1987)).
To determine if a right is clearly established, we first
look for Supreme Court precedent. Mammaro, 814 F.3d at
169. If there is none, we may rely on a “‘robust consensus of
cases of persuasive authority’ in the Court[s] of Appeals.” Id.
(quoting Taylor v. Barkes, 135 S.Ct. 2042, 2044 (2015) (per
curiam)). “[A]lthough earlier cases involving fundamentally
similar facts can provide especially strong support for a
conclusion that the law is clearly established, they are not
necessary to such a finding.” L.R., 836 F.3d at 248 (quoting
Hope v. Pelzer, 536 U.S. 730, 741 (2002)).
We exercise our discretion to decide which of the two
prongs of the qualified immunity analysis to address first “in
light of the circumstances in the particular case at hand.”
Pearson v. Callahan, 555 U.S. 223, 236 (2009). For reasons
of constitutional avoidance, we may begin by determining
whether a right was clearly established. Camreta v. Greene,
563 U.S. 692, 705 (2011). Yet in other cases “following the
two-step sequence—defining constitutional rights and only
then conferring immunity—is sometimes beneficial to clarify
the legal standards governing public officials.” Id. at 707.
In the Mirabellas’ case, we exercise our discretion to
follow the two-step sequence. We do so in order to guide
local officials in safeguarding the First Amendment rights of
8
constituents in challenging circumstances: when the
government’s constituents are also litigation adversaries.
See Am. Canoe Ass’n, Inc. v. City of St. Albans, 18
F. Supp. 2d 620, 621 (S.D.W.Va. 1998) (observing that the
“[g]overnment remains the servant of the people, even when
citizens are litigating against it”).
IV
The Mirabellas allege—in the first of two claims on
appeal—that local officials Walsh and McDonnell retaliated
against them for the exercise of their First Amendment rights.
We conclude that the Mirabellas have pled a retaliation claim
based upon Walsh’s “no contact” email, but not Walsh and
McDonnell’s threat that they would move for litigation
sanctions. As to the second prong of qualified immunity, we
conclude that the right was not clearly established.
A
“Official reprisal for protected speech ‘offends the
Constitution [because] it threatens to inhibit exercise of the
protected right.’” Hartman v. Moore, 547 U.S. 250, 256
(2006) (citation omitted). To plead retaliation for the exercise
of First Amendment rights, a plaintiff must allege “(1)
constitutionally protected conduct, (2) retaliatory action
sufficient to deter a person of ordinary firmness from
exercising his constitutional rights, and (3) a causal link
between the constitutionally protected conduct and the
retaliatory action.” Thomas v. Indep. Twp., 463 F.3d 285, 296
(3d Cir. 2006) (citation omitted); see also Mack v. Warden
Loretto FCI, 839 F.3d 286, 297 (3d Cir. 2016) (applying this
9
test to a claim of retaliation for the exercise of the right to
petition).
1
The first element of the Mirabellas’ retaliation claim is
straightforward. The parties do not dispute that the
Mirabellas exercised their First Amendment rights—both
their right to free speech and their right to petition the
government for redress of grievances. The Mirabellas
engaged in constitutionally protected speech and petitioning
when they protested the Township’s failure to protect the
open space and threatened litigation. “Both the Free Speech
Clause and the Petition Clause protect ‘personal
expression’—both expression generally and expression
directed towards the government for the specific purpose of
asking it to right a wrong.” Mack, 839 F.3d at 297-98.3
2
As to the second element of the retaliation claim, the
parties dispute whether there was a retaliatory act “sufficient
to deter a person of ordinary firmness.” Thomas, 463 F.3d at
296. We conclude that Walsh’s “no contact” email met this
3
We will discuss the First Amendment right to
petition the government in greater detail below, in the context
of the Mirabellas’ second claim, which alleges a direct
violation of their right to petition. As explained below, the
right to free speech and the right to petition are not
necessarily coextensive, although this is immaterial to our
analysis of the Mirabellas’ retaliation claim. See infra
Part V(A).
10
standard, but that Walsh and McDonnell’s threat that they
would move for litigation sanctions did not.4
As a preliminary matter, we reject Walsh and
McDonnell’s argument that the second element cannot be
satisfied because the Mirabellas were undeterred in the
exercise of their constitutional rights and, for example,
attended one meeting of the Board of Supervisors after Walsh
sent the “no contact” email. This argument fails because
whether an act is retaliatory is an objective question. Bistrian
v. Levi, 696 F.3d 352, 376 (3d Cir. 2012). We ask whether
the act would deter a person of ordinary firmness, not whether
the plaintiff was deterred. There is good reason for such a
rule: we will not “‘reward’ government officials for picking
on unusually hardy speakers. At the same time, we recognize
that government officials should not be liable when the
plaintiff is unreasonably weak-willed . . . .” Bennett v.
Hendrix, 423 F.3d 1247, 1252 (11th Cir. 2005) (citation
omitted). We now consider the two retaliatory acts alleged.
4
At this level, we construe Walsh and McDonnell’s
actions as being made “under color of state law” for the
purposes of 42 U.S.C. § 1983. This requirement can be met
where the defendant either: (1) acts in his or her official
capacity or (2) “purports to act according to official power.”
Barna v. City of Perth Amboy, 42 F.3d 809, 816 (3d Cir.
1994). Construing the allegations in the Mirabellas’ favor,
Walsh and McDonnell either acted or purported to act,
respectively, as chairperson and member of the Board of
Supervisors.
11
i
The first allegedly retaliatory act is Walsh’s “no
contact” email. In this email, Walsh prohibited the
Mirabellas from contacting government employees, as
follows: “Please direct all further communications to the
Township attorney. Please never contact me, the Board of
Supervisors or the Township employees directly. Do not call
me at work, email me at work or speak to me in public or
private. The dye is caste [sic].” App. 125. Construing all
inferences in favor of the Mirabellas, we agree with the
District Court that this email “is significantly more than a
direction to contact the town attorney regarding the
[threatened] lawsuit. This is a complete prohibition against
Plaintiffs contacting town officials and employees for any
reason.” App. 17. In short, Walsh barred the Mirabellas from
communicating directly with their local government, for any
reason, indefinitely. This prohibition was “sufficient to deter
a person of ordinary firmness from exercising his
constitutional rights.” Thomas, 463 F.3d at 296.
In concluding that Walsh’s “no contact” email was
retaliatory, we draw upon and distinguish a similar First
Amendment retaliation case decided by the Second Circuit.
In Tuccio v. Marconi, a real estate developer filed a lawsuit
against a town where he sought to do business. 589 F.3d 538,
540 (2d Cir. 2009). Because of this pending lawsuit, town
officials refused to meet with the developer in person, and
advised him to communicate with them in writing. The
developer then filed a second lawsuit, alleging that the town
officials’ refusal to meet with him was retaliatory. After a
trial on the retaliation claim, judgment was entered for the
town and the Second Circuit affirmed. The Second Circuit
12
held that the town’s decision not to meet with the
developer—a litigation adversary—was not a retaliatory act.
Id. at 541-42. In reaching this conclusion, Tuccio emphasized
that the developer “had no business with the Town” other
than the lawsuit. Id. at 541. Tuccio further explained that
“the result might be different” if the prohibition had “been
implemented in a manner that effectively denied Tuccio
access to permits or opportunities to do business with the
Town,” but that the trial record demonstrated that this had not
occurred. Id.The result is different in the Mirabellas’ case, because
unlike the developer in Tuccio, the Mirabellas have alleged
“business with” their local government. Id. The Mirabellas
live in Montgomery Township and have alleged a myriad of
interests, for which they may petition the Township. Walsh’s
email bars the Mirabellas from communicating with
Township employees about any topic, not only the threatened
litigation, as to which limits on communication might have
been “prudent.” Id. at 542. Thus, we conclude that Walsh’s
“no contact” email was a retaliatory act.5
5
Our analysis of the Mirabellas’ retaliation claim does
not turn on whether Walsh’s “no contact” email was itself
unconstitutional. In a retaliation claim, we ask instead
“whether the Government is punishing the plaintiffs for
exercising their rights.” Miller v. Mitchell, 598 F.3d 139, 148
n.9 (3d Cir. 2010) (emphasis in original) (quoting Anderson v.
Davila, 125 F.3d 148, 161 (3d Cir. 1997)). We will return to
the constitutionality of Walsh’s “no contact” email in the
context of the Mirabella’s direct Petition Clause claim.
See infra Part V(B).
13
ii
The Mirabellas also allege that both Walsh and
McDonnell retaliated against them by stating that if the
Mirabellas sued the Township, the Township would move for
sanctions for frivolous litigation. Significantly, this alleged
act of retaliation is a particular kind—one taking the form of
the official’s own speech. McLaughlin v. Watson, 271 F.3d
566, 573 (3d Cir. 2001) (quoting Suarez Corp. Indus. v.
McGraw, 202 F.3d 676, 687 (4th Cir. 2000)); see also
Zaloga, 841 F.3d at 176. In such circumstances we employ a
more specific test to determine whether the official’s speech
amounts to a retaliatory act. We ask whether there was “a
threat, coercion, or intimidation, intimating that punishment,
sanction, or adverse regulatory action will follow.”
McLaughlin, 271 F.3d at 573 (quoting Suarez Corp. Indus.,
202 F.3d at 687).
This standard is not met by Walsh and McDonnell’s
statements that if the Mirabellas sued the Township, they
would move a court for sanctions. In such statements, the
“quantum of governmental authority brought to bear” was
minimal. R.C. Maxwell Co. v. Borough of New Hope,
735 F.2d 85, 88 (3d Cir. 1984); see also Novoselsky v. Brown,
822 F.3d 342 (7th Cir. 2016) (holding that there was no
retaliatory act where government official filed an attorney
disciplinary complaint against the plaintiff and publicly
accused him of litigiousness). As such, the Mirabellas’
retaliation claim must succeed, if at all, on Walsh’s “no
contact” email, not the threat of motioning for litigation
sanctions.
14
3
The third element of a retaliation claim requires a
causal link between a plaintiff’s constitutionally protected
activity and the retaliatory act. Thomas, 463 F.3d at 296.
The required link is “but-for” causation. Hartman, 547 U.S.
at 256. “[A]ny . . . plaintiff charging official retaliatory
action . . . must prove the elements of retaliatory animus as
the cause of injury, and the defendant will have the
. . . opportunity to respond to a prima facie case by showing
that the action would have been taken anyway, independently
of any retaliatory animus.” Id. at 260-61. One method of
proving a causal link, applicable here, is “unusually
suggestive temporal proximity.” Lauren W. v. Deflaminis,
480 F.3d 259, 267 (3d Cir. 2007). The Mirabellas have
alleged such a causal link. On the very same day that the
Mirabellas emailed the Township to protest its treatment of
the open space, and to threaten litigation, Walsh responded
with the “no contact” email.6
Although this “would normally be enough to carry a
complaint across the starting line in the face of a Rule
12(b)(6) motion,” we must address one counter-argument.
Maloy v. Ballori-Lage, 744 F.3d 250, 253 (1st Cir. 2014).
6
This allegation of temporal proximity is itself
sufficient. In addition, we infer that Walsh’s “no contact”
email was a direct response to the threat of litigation because
of Walsh’s concluding message, “[t]he dye is caste [sic].”
App. 125. Construing this statement in favor of the
Mirabellas, we infer that Walsh meant that the Mirabellas cast
the die by threatening litigation against the Township.
15
Walsh argues that there is “another explanation that is so
obviously correct as to render the charge of improper
motivation implausible.” Id. (citation omitted); see also
George v. Rehiel, 738 F.3d 562, 586 (3d Cir. 2013) (holding
that there was an alternative explanation (airline security) that
was “obvious” on the fact of the complaint). Specifically,
Walsh contends that his email was merely a demand that the
Mirabellas—both attorneys—follow the “no contact” rule of
the Pennsylvania Rules of Professional Conduct. This
argument fails because Walsh’s prohibition swept far more
broadly than the rule.
Rule 4.2 of the Rules of Professional Conduct provides
that a lawyer, representing a client, “shall not communicate
about the subject of the representation with a person the
lawyer knows to be represented by another lawyer in the
matter, unless the lawyer has the consent of the other lawyer
or is authorized to do so by law or a court order.”
Pa.R.P.C. 4.2. This prohibition is narrower than Walsh’s “no
contact” email, for at least three reasons: Rule 4.2 (1) is
limited to the subject of the representation; (2) is limited to a
person represented by counsel in the matter and (3) contains
an “authorized by law” exception, which safeguards
constitutionally-protected expression. Id.; see also
Pa.R.P.C. 4.2, cmt. ¶¶ 4, 5, 7. Walsh’s “no contact” email
contained none of these three limitations.7
7
We pass no judgment as to whether Rule 4.2 of the
Pennsylvania Rules of Professional Conduct applies where, as
here, lawyers represent themselves pro se. See Hazard et al.,
supra note 2, § 41.03; Restatement (Third) of the Law
Governing Lawyers § 99, cmt. ¶ e (Am. Law Inst. 2016).
16
Thus, we reject Walsh’s attempt to justify his email by
reference to Rule 4.2. The Mirabellas have pled causation,
the final element of their First Amendment retaliation claim.
B
Having held that the Mirabellas adequately alleged a
First Amendment retaliation claim based upon Walsh’s “no
contact” email, our inquiry is not complete. We must
nevertheless determine whether the right was clearly
established under the second prong of qualified immunity.
In this analysis we are mindful that we must not
“define clearly established law at a high level of generality.”
al-Kidd, 563 U.S. at 742. More specifically, the Supreme
Court has given us guidance on defining a right in the First
Amendment retaliation context. In Reichle v. Howards, the
Supreme Court clarified that it is too broad to define the right
as the “right to be free from retaliation for one’s speech.”
132 S.Ct. 2088, 2094 (2012). Conversely, Reichle held that is
proper to define a right as the “right to be free from a
retaliatory arrest that is otherwise supported by probable
cause.” Id.Reichle is directly applicable to the Mirabellas’
retaliation claim. As in Reichle, the disputed issue here is
whether it was clearly established that the defendant’s act was
retaliatory.8 Paralleling Reichle, we define the right at issue
8
In other First Amendment retaliation cases, the
disputed issue may be whether it was clearly established that
the plaintiff’s conduct was constitutionally protected. See,
17
as the right to be free from a retaliatory restriction on
communication with one’s government, when the plaintiff has
threatened or engaged in litigation against the government.
This right was not clearly established when Walsh sent
the “no contact” email. The Mirabellas have identified
neither Supreme Court precedent nor a “robust consensus of
cases of persuasive authority.” Mammaro, 814 F.3d at 169
(citation omitted). The closest case we have identified,
Tuccio, held that the refusal of town officials to meet with a
litigation adversary did not amount to First Amendment
retaliation. Tuccio, 589 F.3d at 541-42. Thus, Walsh is
entitled to qualified immunity on the Mirabellas’ First
Amendment retaliation claim.
V
The Mirabellas also assert a direct violation of their
First Amendment right to petition the government for redress
of grievances, again based upon Walsh’s “no contact” email.
We conclude that the Mirabellas have pled a constitutional
violation, but that the right was not clearly established for
qualified immunity purposes.
A
The First Amendment of the United States
Constitution provides that “Congress shall make no law . . .
abridging the freedom of speech, . . . or the right of the people
. . . to petition the Government for a redress of grievances.”
e.g., Dougherty v. Sch. Dist. of Phila., 772 F.3d 979, 993-94
(3d Cir. 2014).
18
U.S. Const. amend. I. These two guarantees are known,
respectively, as the Speech Clause and the Petition Clause.
The right to petition the government is “one of ‘the
most precious of the liberties safeguarded by the Bill of
Rights.’” BE & K Constr. Co. v. NLRB, 536 U.S. 516, 524
(2002) (quoting United Mine Workers of Am., Dist. 12 v. Ill.
State Bar Ass’n, 389 U.S. 217, 222 (1967)). “The very idea
of a government, republican in form, implies a right on the
part of its citizens to meet peaceably for consultation in
respect to public affairs and to petition for a redress of
grievances.” United States v. Cruikshank, 92 U.S. 542, 552
(1875). Petitioning serves numerous, fundamental interests of
petitioners and the government alike. It is “essential to
freedom,” liberty and self-government. Borough of Duryea v.
Guarnieri, 564 U.S. 379, 382, 394 (2011); see also
McDonald v. Smith, 472 U.S. 479, 483 (1985). Petitions
contribute to the “public airing” of disputes, the “evolution of
the law,” and the use of government as an “alternative to
force.” BE & K Constr., 536 U.S. at 532.
In Borough of Duryea v. Guarnieri, the Supreme Court
recently renewed its Petition Clause jurisprudence, with a
focus on the historical underpinnings of the right. 564 U.S. at
387-97; see also Ronald J. Krotoszynski, Jr., Reclaiming the
Petition Clause 104-28 (2012) (chronicling the history of
petitioning in the United States, including its importance in
the abolitionist movement). The Supreme Court described
the “special concerns” of the Petition Clause, as compared to
the Speech Clause, as follows: “The right to petition allows
citizens to express their ideas, hopes, and concerns to their
government and their elected representatives, whereas the
right to speak fosters the public exchange of ideas that is
19
integral to deliberative democracy as well as to the whole
realm of ideas and human affairs.” Id. at 388 (emphasis
added).
A petition may “undoubtedly” consist of a “personal
grievance addressed to the government.” Id. at 394. But
“[p]etitions to the government assume an added dimension
when they seek to advance political, social, or other ideas of
interest to the community as a whole.” Id. at 395. A petition
need not “take[] a specific form,” and may include an oral
grievance. Mack, 839 F.3d at 299 (citation omitted).
A petition enjoys constitutional protection whether it is
addressed, as here, to a local government, or to a state or
national government. See, e.g., NAACP v. Claiborne
Hardware Co., 458 U.S. 886, 889 (1982) (petition and
boycott directed at county officials); Brown v. Louisiana,
383 U.S. 131, 142 (1966) (protest of segregated public
library); Holzemer v. City of Memphis, 621 F.3d 512, 519 (6th
Cir. 2010) (oral request to city councilperson); Van Deelen v.
Johnson, 497 F.3d 1151, 1158 (10th Cir. 2007) (appeal of
county property tax assessment). A petition may be directed
towards any department of government, including the courts.
Guarnieri, 564 U.S. at 387; BE & K Constr., 536 U.S. at 525;
see also Anderson v. Davila, 125 F.3d at 162-63 (holding that
the right to petition includes actions taken in anticipation of
litigation).
At the same time, the right to petition is not
“[u]nrestrained,” Guarnieri, 564 U.S. at 390, or “absolute,”
McDonald, 472 U.S. at 484. For example, the Supreme Court
has held that “petitions to the President that contain
intentional and reckless falsehoods ‘do not enjoy
20
constitutional protection.’” McDonald, 472 U.S. at 484(citation omitted). Accordingly, we may ask whether the
government may “nevertheless burden” the right to petition,
given countervailing government interests. BE & K Constr.,
536 U.S. at 535.
To balance such competing interests, courts have
generally applied Speech Clause precedent, rather than any
freestanding Petition Clause doctrine.9 Guarnieri, 564 U.S. at
389 (acknowledging this trend); see also Galena v. Leone,
638 F.3d 186, 197 n.7 (3d Cir. 2011) (considering speech and
petition claims as one); Eichenlaub v. Twp. of Indiana,
385 F.3d 274, 281 (3d Cir. 2004) (same). But Guarnieri
clarified that we cannot do so automatically. For while the
right to petition and the right to free speech “share substantial
common ground,” they are not “identical in their mandate or
their purpose and effect.” Guarnieri, 564 U.S. at 388.
Accordingly, the Supreme Court cautioned that “Speech
Clause precedents [do not] necessarily and in every case
resolve Petition Clause claims.” Id. Despite this guidance,
however, Guarnieri did apply Speech Clause precedent,
rather than forge new ground under the Petition Clause. Id. at
382-83.
9
That said, the Petition Clause has been interpreted
independently from the Speech Clause in the antitrust context.
United Mine Workers of Am. v. Pennington, 381 U.S. 657(1965); E. R.R. Presidents Conference v. Noerr Motor
Freight, Inc., 365 U.S. 127 (1961).
21
B
With this background in mind, we turn to the
Mirabellas’ claim that Walsh violated their right to petition by
prohibiting them from contacting any Township employees,
other than its counsel. To answer this question, we will apply
free speech precedent, as the Supreme Court did in Guarnieri.
Id. We conclude that this is appropriate given the “extensive
common ground” of the two rights, and the Supreme Court’s
own example. Id. at 389. As such, our analysis would be
identical if the Mirabellas had framed their argument as a free
speech claim, rather than a violation of their right to petition
the government.
1
Drawing upon free speech precedent, the Mirabellas
encourage us to apply a test that is highly deferential to their
First Amendment rights, on at least two theories. First, the
Mirabellas assert that Walsh’s email is a content-based
restriction on their speech. Cf. Nat’l Assoc. for the
Advancement of Multijurisdiction Practice (NAAMJP) v.
Castille, 799 F.3d 216, 222-23 (3d Cir. 2015) (explaining that
speaker-based restrictions on speech are subject to heightened
scrutiny when they reflect content-based preferences).
Second, the Mirabellas assert that Walsh’s email is a
restriction on their political speech. See Citizens United v.
FEC, 558 U.S. 310, 340 (2010).
We decline to determine whether these theories apply.
Rather, we will assume for the sake of argument that Walsh’s
“no contact” email is a content-neutral, “time, place or
manner” restriction on the Mirabellas’ speech. It is
22
unnecessary to apply greater scrutiny to the restriction
because, as explained below, even under a standard more
deferential to Walsh, the “no contact” email is
unconstitutional. Cf. McCullen v. Coakley, 134 S.Ct. 2518,
2530 (2014) (recognizing cases that make such an
assumption, but declining to adopt the same approach).
Given a content-neutral, “time, place or manner”
restriction on speech, our inquiry is whether the prohibition is
narrowly tailored. Turner Broad. Sys., Inc. v. FCC, 512 U.S.
622, 662 (1994); Ward v. Rock Against Racism, 491 U.S. 781,
791 (1989). We ask whether the restriction “‘burden[s]
substantially more speech than is necessary to further the
government’s legitimate interests.’” McCullen, 134 S.Ct. at
2535 (quoting Ward, 491 U.S. at 799). The restriction need
not be the least restrictive means of furthering the
government’s interests. Id. (quoting Ward, 491 U.S. at 798).
However, the government may not restrict speech “in such a
manner that a substantial portion of the burden on speech
does not serve to advance its goals.” Id. (quoting Ward,
491 U.S. at 799). The restriction on speech must also “leave
open ample alternative channels for communication of the
information.” Ward, 491 U.S. at 791. The government bears
the burden to demonstrate that the restriction is
constitutionally permissible. Startzell v. City of Phila.,
533 F.3d 183, 201 (3d Cir. 2008).10
10
Although Walsh does not make the argument, we
pause to explain that we are not applying another doctrine
that would be even more deferential to the government. This
doctrine holds, in some contexts, that the government has
“additional authority to regulate” attorney speech.
In re Kendall, 712 F.3d 814, 825 (3d Cir. 2013). This
23
2
Applying the time, place or manner test, we begin with
the alleged governmental interest. Walsh alleges an interest
in preventing the Mirabellas, litigation adversaries, from
additional authority is a product of the government’s
regulatory authority over bar admissions and attorney
discipline. See Gentile v. State Bar of Nev., 501 U.S. 1030,
1066 (1991).
Doctrinally, the regulation of certain attorney speech is
one example of the government’s additional authority to
restrict speech when it “acts in capacities that go beyond
being sovereign.” B.H. v. Easton Area Sch. Dist., 725 F.3d
293, 303 (3d Cir. 2013) (en banc) (citing In re Kendall, 712
F.3d at 825). That is, the law distinguishes between the
government’s authority to restrict speech (1) as a “sovereign”
or (2) as a “property owner, educator, employer, or patron.”
Kathleen M. Sullivan, The Intersection of Free Speech and
the Legal Profession: Constraints on Lawyers’ First
Amendment Rights, 67 Fordham L. Rev. 569, 584-85 (1998).
When the government acts as a sovereign, “robust free speech
protection” applies. Id. at 587. But when the government
acts in certain other capacities, it may be “freer to place
conditions” on speech. Id.Walsh, we conclude, acted as a local “sovereign,” not
by virtue of any regulatory authority over attorneys. “When
acting as sovereign, the government is empowered to impose
time, place, and manner restrictions on speech . . . .” B.H.,
725 F.3d at 302 (citing Ward, 492 U.S. at 791). It is this
standard that we apply.
24
communicating with Township employees per Rule 4.2 of the
Pennsylvania Rules of Professional Conduct. That Rule, the
commentary explains, “contributes to the proper functioning
of the legal system,” for three reasons: (1) it protects
represented persons from “possible overreaching by other
lawyers” in the matter; (2) it protects the lawyer-client
relationship from interference and (3) it prevents
“uncounseled disclosure[s].” Pa.R.P.C. 4.2, cmt. ¶ 1; see also
Restatement (Third) of Law Governing Lawyers, supra note
7, § 99(A), cmt. ¶ b (same). These governmental interests are
legitimate. But see Restatement (Third) of Law Governing
Lawyers, supra note 7, § 101(A), cmt. ¶ b (suggesting that the
need for a “no contact” rule is reduced where the represented
person is a government entity).
As to the Mirabellas’ interests, they are substantial.
Construing all inferences in their favor, the Mirabellas were
prohibited from contacting Township officials and employees
directly, for any reason, indefinitely. This ban encompasses,
inter alia, “normal conversation” and “one-on-one
communication” with government officials—forms of
expression “historically . . . closely associated with the
transmission of ideas.” McCullen, 134 S.Ct. at 2536.11
11
Walsh’s “no contact” email also substantially
impairs the Mirabellas’ interests in petitioning the
government. Walsh prohibited the Mirabellas from
“express[ing] their ideas, hopes, and concerns to their
government and their elected representatives,” as the Petition
Clause guarantees. Guarnieri, 564 U.S. at 388 (emphasis
added).
25
Comparing the parties’ interests, the Mirabellas have
alleged a burden on their speech substantially greater than
necessary to protect the Township’s litigation interests. “[I]t
is no answer . . . to say . . . that the purpose of these
regulations was merely to insure high professional standards
and not to curtail free expression.” Reed v. Town of Gilbert,
135 S.Ct. 2218, 2229 (2015) (alteration in original) (quoting
NAACP v. Button, 371 U.S. 415, 438-39 (1963)).12 Thus, the
Mirabellas have alleged a constitutional violation of their
right to petition.
C
For the reasons above, the Mirabellas have alleged a
violation of their First Amendment right to petition the
government for redress of grievances. Under the second
prong of qualified immunity, however, we conclude that the
right was not clearly established.
As stated above, we must not “define clearly
established law at a high level of generality.” al-Kidd, 563
U.S. at 742. We therefore define the First Amendment right
at issue as the right to be free from a restriction on
communicating with one’s government, when the plaintiff has
12
Because we hold that Walsh’s “no contact” email
was not narrowly tailored, we need not reach the additional
requirement that a time, place or manner restriction on speech
leave open ample alternative channels for communication.
Ward, 491 U.S. at 791; see, e.g., Johnson v. City & Cty. of
Phila., 665 F.3d 486, 493 (3d Cir. 2011) (conducting this
analysis).
26
threatened or engaged in litigation against the government.
This right was not clearly established.
While other cases have held that there is a clearly
established right to petition a local government, those cases
did not involve litigation. For example, the Sixth Circuit has
held that there is a clearly established right “to petition a
local, elected representative for assistance in dealing with
local government agencies.” Holzemer, 621 F.3d at 527.
Similarly, the Tenth Circuit has held that there is a clearly
established right to petition a local government regarding a
tax assessment. Van Deelen, 497 F.3d at 1159. These cases,
while persuasive, do not establish that “every ‘reasonable
official’” in Walsh’s position would have understood that his
“no contact” email violated the Mirabellas’ First Amendment
rights. al-Kidd, 563 U.S. at 741 (citation omitted). Thus,
Walsh is entitled to qualified immunity on the Mirabellas’
Petition Clause claim.
VI
For the reasons above, we will reverse the judgment of
the District Court denying, in part, Appellant Walsh and
McDonnell’s motion to dismiss and we will remand with
instructions to enter judgment in their favor.
27