Colson v. Grohman ( 1999 )

  •                        Revised June 3, 1999
                           FOR THE FIFTH CIRCUIT
                                No. 97-41388
              JOY NIDAY COLSON,
               Appeal from the United States District Court
                    for the Southern District of Texas
                              April 26, 1999
    Before KING, Chief Judge, and JONES and SMITH, Circuit Judges.
    KING, Chief Judge:
         Plaintiff-appellant Joy Niday Colson appeals from the
    district court’s grant of summary judgment in favor of
    defendants-appellees Paul Grohman, Mike Hogg, Jack Roberts,
    Stella Roberts, and the City of Pearland.     Colson, an elected
    official, alleges that defendants-appellees falsely accused her
    of criminal acts, urged prosecutors to investigate her, and
    instigated a recall election against her because they disagreed
    with her political views and votes.   Such retaliation, she
    asserts, violates her rights under both the First and Fourteenth
    Amendments.    We find that the retaliatory criticism,
    investigations, and false accusations to which Colson maintains
    she was subjected are not actionable under the First Amendment.
    Because Colson’s Fourteenth Amendment claim rests on a theory
    that defendants-appellees both harmed her reputation and deprived
    her of her constitutional right to speak without retaliation, it
    is foreclosed by our conclusion that she has suffered no
    actionable First Amendment harm.       Accordingly, we affirm the
    district court’s grant of summary judgment.
         Because the precise nature of the harms suffered by a
    plaintiff claiming First Amendment retaliation is crucial to our
    determination of whether she has alleged a constitutional
    deprivation, we describe in detail the long and tortured history
    of this case.    Plaintiff-appellant Joy Niday Colson, whose
    husband, Bill Colson, was a police officer in Pearland, Texas
    (the City), won a seat on the Pearland City Council (the Council)
    in May 1991.    At that time, the other members of the Council were
    Benny Frank, D.A. Miller, Randy Weber, and Billy Wolff, who in
    May 1992 was replaced by David Smith.       In the late summer or
    early fall of 1992, defendant-appellee Phillip Michael Hogg, the
    Pearland Police Department (PPD) Police Chief, presented his
    proposed PPD budget for 1993, including a pay plan for PPD
    employees, to the Council for adoption.    Colson offered an
    alternative proposal (the Colson Pay Plan) that called for
    eliminating one of four PPD corporal positions, hiring two clerks
    to fill that position, and assigning two clerks to administrative
    duties so that another officer would be free to patrol the
    streets.    Hogg and defendant-appellee Paul Grohman, Pearland’s
    City Manager, opposed the Colson Pay Plan.    On December 14, 1992,
    over Hogg’s objections, the Council voted unanimously to abolish
    the corporal position.
         According to Colson, Hogg then began using the powers of his
    office to retaliate against her for her opposition to his
    proposed budget.    On January 7, 1993, Hogg submitted to Brazoria
    County District Attorney Jim Mapel a “confidential investigation”
    memorandum detailing numerous instances in which certain Pearland
    City Council members, including Colson, allegedly violated state
    open meetings or conflict-of-interest statutes.    Hogg allegedly
    related at least two incidents that he admitted he knew did not
    constitute crimes.    First, based on a conversation he had with
    Council member Benny Frank in February 1992, Hogg suggested that
    Colson violated the Texas Open Meetings Act (TOMA) by meeting
    secretly to conspire to terminate then-City Manager James
    DeShazer.    Hogg admitted in the memorandum, however, that City
    Attorney Lester Rorick had informed him that Colson had committed
    no crime because a Council quorum had not been present at the
    allegedly illegal meetings.    Hogg also noted that in 1981 and
    1983, Bill Colson offered two other PPD officers compensation in
    exchange for their resigning from PPD sergeant positions so that
    he could be promoted more quickly, a practice that Colson claims
    Hogg knew was legal at the time.       Although it was unusual for the
    District Attorney’s Office to investigate such allegations, Mapel
    assigned Assistant District Attorney Tom Selleck to the case
    because of Hogg’s status as Police Chief.
         Colson claims that over the next few months, Hogg became
    increasingly frustrated by her positions on PPD issues and
    retaliated against her by making more false criminal accusations.
    First, on May 8, 1993, Hogg prepared a confidential report
    alleging that Colson had violated TOMA and the state nepotism
    statute.   Some two weeks later, Hogg prepared another update
    accusing Colson of improperly proposing that the Council
    reconsider its earlier decision to discontinue disability
    coverage for city employees in an effort to benefit her husband,
    who had contracted a disabling illness.      Hogg also noted:
         I must add, that I am very concerned that this matter is
         taking so long to address. I delivered the information to
         Mr. Maples [sic] on January 7, 1993. Some of the subjects
         in this matter have been contacted, and rumors are flying.
         I feel that postponing actions may jeopardize this case
    Hogg delivered both reports to Selleck.
         In response, Selleck told Hogg that if he could prove that
    three TOMA violations had occurred within the preceding twelve
    months, Selleck would take the allegations to the Brazoria County
    grand jury.    In June 1993, however, Selleck informed Mapel that
    there was no basis for bringing criminal charges against the
    Council members.    Selleck and Mapel also discussed their concern
    that Hogg was attempting to use the District Attorney’s Office in
    a personal battle with Colson and other Council members.        Mapel
    informed Hogg on June 15, 1993, that no action would be taken
    with respect to his allegations.       Hogg claims that Mapel
    acknowledged that the Council members had committed “technical
    violations” of TOMA but considered these too minor for
    prosecution.   The record, however, contains no other evidence
    that Mapel said any such thing.
         At around the same time, Council member Weber requested a
    Council meeting to evaluate Hogg, and City Manager Grohman
    confided to Hogg that Colson, Miller, and Weber wanted to
    terminate Hogg.    On June 21, 1993, the Council, with Colson
    absent, met in a public session for the express purpose of
    evaluating Hogg.    Hogg read a prepared statement suggesting that
    the Council, in violation of TOMA and the City Charter, had
    decided at a private retreat not to approve any raises for police
    officers for fiscal year 1994.    On or about July 13, Hogg filed a
    probable cause affidavit claiming that Miller had committed
    official misconduct by accepting pay from a public university
    while also drawing a salary from the City.       Three days later,
    Hogg met with Selleck and Brazoria County Investigator John
    Blankenship and provided them with a chart of violations that
    Council members allegedly had committed between July 1, 1992 and
    July 12, 1993.     The chart indicated that Colson had violated TOMA
    and the state nepotism statute by participating in illegal
    meetings and voting on a matter directly affecting her husband.
         On July 19, 1993, in a closed executive session, the Council
    evaluated Grohman.    Smith and Weber rated Grohman favorably,
    while Frank gave him an average score.    Miller described
    Grohman’s performance as poor, as did Colson, who criticized him
    for “manag[ing] with intimidation” and awarding salary increases
    without Council approval.    At the end of the meeting, Miller and
    Frank requested that the Council consider terminating Grohman at
    its next meeting, on July 26, 1993.
         Colson alleges that a furious Grohman asked Hogg to prepare
    recall petitions for the Council members who had criticized him,
    which Hogg did.1    The petition for Colson contained the following
    allegations, even though the district attorney already had
           In their City Charter, the people of Pearland have reserved
    the power to recall city officials from office.      To invoke the
    process, a specified number of the electorate must file a recall
    petition alleging one or more specified “grounds” for recall, i.e.,
    incompetency, misconduct, or malfeasance in office.      Five days
    after a petition has been filed, the City Secretary must either
    certify it if it is in proper form or return it to the petitioners
    for correction. If it is certified, the City Secretary must then
    present the petition to the Council.     Within five days after a
    petition has been presented, the accused official may request “that
    a public hearing be held to permit him/her to present facts
    pertinent to the charges specified in the recall petition,” and,
    within fifteen days of such a request, the Council must order a
    recall election wherein the voters decide whether the accused
    official should be removed from office.
    declined to bring charges:
         Directed to the City Council in and for the City of Pearland
         for the specific purpose of demanding the recall of Joy
         Colson, who is a duly elected Council member of the City
         Council in and for the City of Pearland . . . . Pursuant to
         Section 6.02 of the City of Pearland Charter, the below
         signed qualified voters do hereby demand the recall of
         Council Member Colson on the grounds of Malfeasance in
              Specifically we allege that Ms. Colson, while acting as
         a city council member, did violate The City of Pearland
         Charter, Sections 8.06 and 8.07, and Chapter 171(1)d, of the
         Local Government Code there by [sic] violating a law
         relating to her office as a Council member, thus rendering
         her actions in violation of Section 39.01 of the State Penal
         Code titled Official Misconduct, the same being a Class A
         Misdemeanor. We further allege that Ms. Colson violated
         these sections by deciding on the final budget of the police
         department for fiscal year 94 without conducting the
         required Public Hearing and posting the required Public
         notice, further that on March 8, 1993 she participated in a
         vote that had a direct effect on her husband’s position in
         the Police Department. We further allege that she regularly
         enters into deliberations concerning matters which have a
         direct impact on her husband.
    Hogg delivered a copy of the Colson recall petition to two
    individuals who requested it, Grohman and another city employee,
    Paul Dillon, but to no one else.       Grohman delivered a copy of the
    Colson recall petition to defendant-appellee Stella Roberts, a
    private Pearland citizen and former Council member, but to no one
    else.   Grohman and Stella Roberts then prepared a set of
    instructions to accompany the petitions.      These instructions
    stated that Colson was being investigated by the District
    Attorney’s Office and a grand jury for possible criminal
    violations and accused her of (1) having shown a disregard for
    the laws governing the City; (2) having numerous allegations
    lodged against her for acting illegally outside public meetings;
    (3) letting personal vendettas override public interest by
    persecuting the police chief, city manager, and other city
    employees; and (4) self-dealing.       Colson contends that all of
    these allegations were false.   The petitions were circulated
    during the July 26 Council meeting held to consider dismissing
    Grohman, at which a divided Council, with Colson, Miller, and
    Frank on one side and Smith and Weber on the other, decided to
    revisit the issue of Grohman’s employment after ninety days.
         On September 7, 1993, then-City Secretary Pat Jones received
    the petitions.   On September 11, she determined that the
    signatures on the petitions lacked the necessary voter
    registration numbers.   Grohman then contacted Stella Roberts, who
    picked up the petitions for correction, and directed City
    employees to assist Stella Roberts and her husband, defendant-
    appellee Jack Roberts, in correcting the petitions and to help
    Jones certify them.   Grohman also ordered Jones to provide the
    Robertses with a City copy of the voter registration list so that
    they could more easily provide the registration numbers.       On
    September 12, the Robertses returned the corrected petitions.
    Jones and the City Attorney determined, however, that many of the
    signatures were invalid because the petitions were not signed by
    the affiants claiming to have circulated them, as required by the
    City Charter.    Grohman then personally telephoned the affiants,
    including Jack Roberts, and requested that they come to the City
    Secretary’s Office to sign the petitions they had circulated.
    Throughout this period, Jones asserts, Grohman pressured her to
    certify the petitions without verifying the signatures thereon
    and to complete the certification in time for the September 13
    Council meeting.   Jones ultimately refused to certify the
         Following the return of the petitions, the Robertses, along
    with others, organized the circulation of a second set of recall
    petitions containing the same accusations against Colson that had
    been made in the first set of recall petitions.   In addition to a
    new allegation of incompetence, the second set of petitions also
    alleged that Colson (1) committed malfeasance in office by
    regularly voting on matters directly affecting the compensation
    afforded her husband as a member of the PPD; (2) approved the
    1994 budget for the PPD in violation of TOMA; and (3) effectively
    relegated her investigation and consideration of certain actions
    to be taken by the Council to Miller and Frank and then voted
    according to their direction or position.   On October 4, 1993,
    Colson filed suit in state court seeking an injunction barring
    any recall election and continued publication of the allegedly
    false criminal allegations against her.   On November 22, 1993,
    the state district court enjoined any recall election, finding
    that the petitions failed to give Colson adequate notice of the
    charges against her.   No recall election ever occurred.
         During and after the circulation of the first set of recall
    petitions, Grohman and Hogg continued to report the Council’s
    alleged criminal activity to the District Attorney’s Office.     On
    September 8, in a tape-recorded telephone conversation, Selleck
    told Hogg that he had met with Colson, Miller, Frank, and their
    lawyer and had informed the Council members that they had broken
    the law.   He also stated that he had accused Colson personally of
    violating the state nepotism statute and committing criminal
    official misconduct.   In early November 1993, Hogg prepared a
    presentation on the Council’s alleged criminal activities for
    Sergeant Jim Harelson of the Texas Rangers.   After the state
    district court enjoined the recall election on November 22,
    Stella Roberts telephoned Hogg to report that she had observed
    Colson engaged in conversations in the courtroom regarding
    matters that might have been pending before the Council and
    offered to speak to the District Attorney’s Office.   Hogg
    prepared a report to law enforcement authorities setting forth
    Roberts’s allegations.
         Grohman and Hogg also continued to ask the District
    Attorney’s Office to bring charges against Colson.    On November
    23, 1993, Grohman complained to Mapel that Council members were
    retaliating against him and told Mapel that he understood that a
    grand jury would follow Mapel’s recommendation.   Mapel denied
    this.   Grohman also stated that an indictment for retaliation or
    coercion was the only thing that would make Colson and the other
    Council members “run the other way.”   Hogg attempted to pressure
    Mapel to indict Colson by forwarding to him a copy of a letter
    criticizing Colson from his friend and political ally Reverend
    Scarborough of the First Baptist Church of Pearland, accompanied
    by a cover letter stating that the First Baptist congregation had
    1800 members.   Finally, in December 1993, Hogg, Selleck,
    Blankenship, and Texas Ranger Joe Harelson met in Blankenship’s
    office at the Brazoria County District Attorney’s Office, where
    Hogg asked Selleck to bring criminal retaliation or coercion
    charges against Colson because she had voted to have Grohman
    investigated.   Selleck told Hogg that he did not have sufficient
    grounds to bring such charges.   After Hogg continued pressuring
    Selleck to bring the allegations before the grand jury, Selleck
    warned Hogg that he was “coming close to trampling” on Colson’s
    constitutional rights.   Several days after this meeting, Hogg
    told Selleck that if he could get Colson, Frank, and Miller
    indicted, he would guarantee him 1800 votes if Selleck ran to
    succeed Mapel as District Attorney in the upcoming election.
    Selleck told Hogg that he had no interest in running for District
    Attorney.   Following this meeting, according to Colson, Selleck
    and Blankenship concluded that Hogg had lost his focus as an
    impartial and objective criminal investigator and forgotten his
    mission as the City’s chief law enforcement officer.   They also
    discussed, but rejected, bringing bribery charges against him.
         On January 12, 1994, Hogg testified before the grand jury.
    He accused Colson of retaliation and coercion of a public
    servant, despite being told by Selleck not to present such
    allegations because the elements of these offenses could not be
    met.    He also asked the grand jury to indict Colson for a
    violation of the nepotism statute and TOMA despite, Colson
    claims, his awareness that she had the right to vote on matters
    involving bona fide classes of employees that included her
    husband and that the Council had held a public hearing on the PPD
    budget.    Following Hogg’s presentation, the grand jury declined
    to indict Colson and found no probable cause to believe that
    either the nepotism or conflict of interest statutes had been
    violated.    On February 3, 1994, Hogg wrote to Harelson, asking
    that Selleck be investigated for his failure to take action on
    Hogg’s allegations.
           On March 23, 1994, Assistant District Attorney Danette
    Holcombe informed Grohman that the grand jury had considered
    Grohman’s retaliation and coercion charges and brought back a no-
    bill on both.    Grohman again claimed that he was being retaliated
    against “by three of them.    I can’t prove it but on two because
    Mrs. Colson is always very careful not to be the one that signs
    the documents.    It’s always Miller and Frank . . . .”   Holcombe
    informed Grohman that several members of the Brazoria County
    District Attorney’s Office had reviewed the case and had not
    found that anyone had retaliated against or coerced Grohman.
           On or about April 14, 1994, just two weeks before the May
    1994 election in which Colson was running for reelection, Hogg
    prepared, on City time and using City property, a lengthy report
    on PPD stationery entitled “Pearland Pandemonium, or ‘It’s OK,
    everybody does it’” and directed the City Secretary’s Office to
    forward it to the public library.       The purpose of the report,
    Hogg claimed, was to give the Council an accounting of events as
    it considered Grohman’s employment status; nevertheless, he
    admitted that he had it placed in the library because he “wanted
    it in the public forum.”    While Hogg represented the report to be
    a complete chronology of events relating to criminal
    investigations of all Council members, it targeted only Colson,
    Frank, and Miller.    Hogg attributed his failure to include
    allegations against any of the other Council members as “due to
    [his] style of writing.”
         In May 1994, Colson lost her reelection bid by a wide
    margin.    She continued to pursue a state court action for
    defamation, libel, and due process violations against, among
    others, the Robertses; in August 1994, she added Hogg and Grohman
    as defendants.    In May 1995, Colson filed an amended petition
    alleging claims under 42 U.S.C. § 1983 for violations of her
    rights under the First and Fourteenth Amendments.2      Hogg,
              Section 1983 provides:
         Every person who, under color of any statute, ordinance,
         regulation, custom, or usage, of any State . . . subjects, or
         causes to be subjected, any citizen of the United States or
         other person within the jurisdiction thereof to the
         deprivation of any rights, privileges, or immunities secured
         by the Constitution and laws, shall be liable to the party
    Grohman, the Robertses, and the City of Pearland (collectively,
    defendants) removed the case to the United States District Court
    for the Southern District of Texas pursuant to 28 U.S.C.
    § 1441(a) & (b), where it was assigned to a magistrate judge, and
    Colson filed several amended petitions.   Her Seventh Amended
    Original Petition, the live pleading in this case, alleges a
    “deliberate and calculated campaign undertaken by the Defendants,
    conspiring together, to remove her from office and to destroy her
    reputation and good standing in the Pearland community in direct
    retaliation for [her] efforts to speak out and vote on matters of
    public concern.”   The petition contains five counts: (1)
    Defendants, acting under color of state law, wilfully, knowingly,
    and maliciously conspired to intimidate and retaliate against
    Colson, in her capacity as an elected official and as a citizen,
    for her efforts to speak out and vote freely on matters of public
    concern, and their malicious actions did, in fact, deny Colson
    her First Amendment rights as secured by the Constitution and 42
    U.S.C. § 1983; (2) defendants, acting under color of state law,
    wilfully, knowingly, and maliciously conspired to publicize false
         injured . . . .
    42 U.S.C. § 1983. Section 1983 creates a private right of action
    for redressing the violation of federal law by those acting under
    color of state law. See Migra v. Warren City Sch. Dist. Bd. of
    465 U.S. 75
    , 82 (1984).     It is not itself a source of
    substantive rights, but merely provides a method for vindicating
    federal rights conferred elsewhere. See Albright v. Oliver, 
    510 U.S. 266
    , 271 (1994).
    and defamatory statements about Colson in connection with their
    efforts to remove her from public office through their initiation
    of recall proceedings, and these statements stigmatized Colson
    and cast her in a false light, thereby denying Colson her
    Fourteenth Amendment rights as secured by the Constitution and 42
    U.S.C. § 1983; (3) defendants made false statements with reckless
    disregard for the truth or actual knowledge of their falsity, “in
    an effort to retaliate and injure Colson and her political
    associates,” and these statements constitute actionable slander,
    libel, and libel per se under Texas Civil Practice & Remedies
    Code § 73.001; (4) defendants’ actions constitute intentional
    infliction of emotional distress on Colson; and (5) defendant
    Hogg caused the commencement of criminal prosecutions against
    Colson and her political associates, “knowingly making false and
    misleading charges in retaliation for Colson speaking out on
    matters of public concern involving the PPD and Grohman.”    Colson
    claims damages for “shame, embarrassment, humiliation, and mental
    pain and anguish,” as well as injury to her “good name and
    reputation,” loss of her Council position, and exposure to
    “hatred, contempt, and the ridicule of the general public, as
    well as her friends and relatives.”
         All defendants filed motions for summary judgment.   With
    respect to Colson’s § 1983 claims, they contended that she had
    failed to allege any deprivation of a cognizable constitutional
    right.   Colson filed a response, arguing that she had stated
    (1) an actionable First Amendment free speech claim because she
    had alleged that defendants misused the recall and criminal
    justice processes to retaliate against her for her
    constitutionally protected speech, and (2) an actionable
    Fourteenth Amendment liberty interest claim because she had
    alleged that the defendants injured her reputation and deprived
    her of “her First Amendment right to speak out on matters of
    public concern while she was a Council member, free from
    retaliation by defendants.”   The magistrate judge issued a report
    recommending that summary judgment be denied on the First
    Amendment issue but granted on all other claims.   The district
    court, however, declined to accept the recommendation, granted
    defendants’ motions for summary judgment on the First and
    Fourteenth Amendment claims, and dismissed those claims.3   Colson
                          II.   STANDARD OF REVIEW
         We review the entry of summary judgment de novo, see Morris
    v. Covan World Wide Moving, Inc., 
    144 F.3d 377
    , 380 (5th Cir.
    1998), applying the same standards as the district court, see
    Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., 
    831 F.2d 77
    79 (5th Cir. 1987).   After consulting applicable law in order to
             The district court then ordered that the First and
    Fourteenth Amendment claims be severed from the remaining claims
    pursuant to Federal Rule of Civil Procedure 54(b). Because only
    matters of state law remained, the court declined to exercise
    supplemental jurisdiction and remanded the remaining claims to the
    district court of Brazoria County, Texas.
    ascertain the material factual issues, we consider the evidence
    bearing on those issues, viewing the facts and the inferences to
    be drawn therefrom in the light most favorable to the non-movant.
    See King v. Chide, 
    974 F.2d 653
    , 656 (5th Cir. 1992).       The party
    moving for summary judgment has the initial burden of “informing
    the district court of the basis for its motion, and identifying
    those portions of [the summary judgment record] which it believes
    demonstrate the absence of a genuine issue of material fact.”
    Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 323 (1986).        Once that
    burden is met, the burden of production shifts to the non-movant
    to demonstrate that a genuine issue of fact does exist on the
    material elements of his claims.      See id. at 323-24.    Summary
    judgment is properly granted if “the pleadings, depositions,
    answers to interrogatories, and admissions on file, together with
    the affidavits, if any, show that there is no genuine issue as to
    any material fact and that the moving party is entitled to a
    judgment as a matter of law.”   FED. R. CIV. P. 56(c).
                             III.   DISCUSSION
         On appeal, Colson asserts that defendants violated her First
    Amendment rights by misusing the criminal justice and recall
    processes to retaliate against her for her speech on matters of
    public concern.   Specifically, she claims, defendants knowingly
    (1) reported baseless accusations to the District Attorney’s
    Office in an effort to have her prosecuted; (2) used these
    allegations as the basis of a recall petition to drive her out of
    office; and (3) repeated them once again in a public document
    designed to discredit her with her constituents.    Such
    retaliation by city officials, Colson argues, constitutes a
    deprivation of her First Amendment rights under color of state
    law and is therefore actionable under 42 U.S.C. § 1983.
    Defendants respond that, even taking Colson’s complaint as true,
    their actions resulted only in injury to Colson’s reputation,
    which is not actionable under the Constitution, especially where
    the plaintiff is, like Colson, an elected policymaker alleging
    that her opponents’ politically motivated defamation chilled her
         The First Amendment provides that “Congress shall make no
    law respecting an establishment of religion, or prohibiting the
    free exercise thereof; or abridging the freedom of speech, or of
    the press; or the right of the people peaceably to assemble, and
    to petition the Government for a redress of grievances.”    U.S.
    CONST. amend. I.   Although it explicitly refers only to federal
    action, it applies to the states through the Due Process Clause
    of the Fourteenth Amendment.   See De Jonge v. Oregon, 
    299 U.S. 353
    , 364 (1937).   There is no question that political expression
    such as Colson’s positions and votes on City matters is protected
    speech under the First Amendment.     See Connick v. Myers, 
    461 U.S. 138
    , 145 (1983) (“[T]he Court has frequently reaffirmed that
    speech on public issues occupies the highest rung of the
    heirarchy [sic] of First Amendment values and is entitled to
    special protection.”) (internal quotation marks omitted); First
    Nat’l Bank v. Bellotti, 
    435 U.S. 765
    , 776 (1978) (stating that
    speech on matters of public concern is “at the heart of the First
    Amendment’s protection”); Rash-Aldridge v. Ramirez, 
    96 F.3d 117
    119 (5th Cir. 1996) (citing Miller v. Town of Hull, 
    878 F.2d 523
    532 (1st Cir. 1989)).
         We turn first to defendants’ argument that Colson cannot
    claim First Amendment protection against their alleged
    retaliation because she was a public official.   They assert that
    just as the Pearland electorate as a whole did not violate
    Colson’s constitutional rights by voting her out of office
    because of her political speech, no individual citizen could
    violate her constitutional rights by publicly criticizing her
    official actions, trying to remove her from office through the
    use of statutory procedures, attempting to have her criminally
    investigated for official misconduct, and campaigning to oust her
    from office.   Cf. Zilich v. Longo, 
    34 F.3d 359
    , 363 (6th Cir.
    1994) (holding that a “pattern of retaliatory voting and official
    legislative action” does not violate the First Amendment and that
    “[t]he First Amendment is not an instrument designed to outlaw
    partisan voting or petty political bickering through the adoption
    of legislative resolutions”).
         Defendants are certainly correct that criticism of public
    officials lies at the very core of speech protected by the First
    Amendment.     See New York Times Co. v. Sullivan, 
    376 U.S. 254
    269-70 (1964) (stating that this country enjoys “a profound
    national commitment to the principle that debate on public issues
    should be uninhibited, robust, and wide-open, and that it may
    well include vehement, caustic, and sometimes unpleasantly sharp
    attacks on government and public officials”).    Even charges of
    criminal conduct against an official or candidate are
    constitutionally protected unless they are made with knowledge of
    their falsehood or with reckless disregard of whether they are
    false or not.     See Monitor Patriot Co. v. Roy, 
    401 U.S. 265
    , 277
    (1971).   But intentional or reckless falsehood, even political
    falsehood, enjoys no First Amendment protection:
         At the time the First Amendment was adopted, as today, there
         were those unscrupulous enough and skillful enough to use
         the deliberate or reckless falsehood as an effective
         political tool to unseat the public servant or even to
         topple an administration. . . . That speech is used as a
         tool for political ends does not automatically bring it
         under the protective mantle of the Constitution. For the
         use of the known lie as a tool is at once at odds with the
         premises of democratic government and with the orderly
         manner in which economic, social, or political change is to
         be effected.
    McDonald v. Smith, 
    472 U.S. 479
    , 487 (1985) (quoting Garrison v.
    379 U.S. 64
    , 75 (1964)) (holding that a state may
    constitutionally award damages for libelous letters to the
    President falsely accusing a potential appointee of criminal
    misconduct).    Taken in the light most favorable to the non-
    movant, the summary judgment record in this case shows that the
    defendants not only criticized Colson but defamed and libeled
    her, presenting criminal allegations to the District Attorney’s
    Office and the public with knowledge that they were false or with
    reckless disregard of whether they were false or not.4
    Therefore, defendants’ speech enjoys no First Amendment
    protection, and they cannot argue that protected First Amendment
    activity cannot violate the First Amendment rights of others.
         Defendants respond, however, that even assuming their
    allegations were knowingly false, the First Amendment does not
    protect policymaking officials from dismissal or other sanctions
    because of their speech.   In support of this argument, they cite
    Romero-Barcelo v. Hernandez-Agosto, 
    75 F.3d 23
     (1st Cir. 1996).
    In Romero-Barcelo, a former governor of Puerto Rico brought a
    § 1983 action against the President of the Puerto Rico Senate,
    the head of the Senate Judiciary Committee, and the Senate’s
    chief counsel.   He claimed that the defendants and the Judiciary
    Committee itself continuously labeled him an assassin or murderer
    because of his beliefs and political association, even though no
           Selleck stated in his affidavit that he told Mapel as early
    as June 1993 that there was no basis for bringing criminal charges
    against the Council members and that Mapel told Hogg that his
    office would take no action.     He also testified that Hogg and
    Grohman accused Miller of illegally receiving a salary from two
    governmental entities at the same time, without revealing that it
    was Grohman who had suggested that he do so. Blankenship stated in
    his affidavit that Hogg offered Selleck 1800 votes for District
    Attorney if he convinced the grand jury to indict Colson, Miller,
    and Frank. Hogg himself admitted in deposition testimony that he
    prepared recall petitions even though he knew that it was improper
    for him to do so and that it was unusual for him to become
    personally involved in criminal investigations.
    evidence was ever submitted to substantiate the charge; that one
    defendant presented information about him to the Committee and
    the press knowing it to be false or misleading; and that the
    defendants disseminated false information about him.   See id. at
    27-28.   The First Circuit determined that the governor had failed
    to state an actionable claim because there is “no First Amendment
    protection for a politician whose rights to freedom of speech,
    freedom of association, and freedom to disassociate [oneself]
    from unpopular views have been injured by other politicians
    seeking to undermine his credibility within his own party and
    with the electorate.”   Id. at 34 (quoting Barcelo v. Agosto, 
    876 F. Supp. 1332
    , 1348 (D.P.R. 1995)) (internal quotation marks
    omitted) (alteration in original).   Because Romero-Barcelo was a
    policymaker, the court held, Elrod v. Burns, 
    427 U.S. 347
    , 357
    (1976) (plurality opinion), and Branti v. Finkel, 
    445 U.S. 507
    517 (1980), foreclosed his First Amendment retaliation claim.
    See Romero-Barcelo, 75 F.3d at 34.
         Even if we wished to do so, we are not free to adopt the
    First Circuit’s position.   At least twice, this court has granted
    relief to elected officials claiming First Amendment retaliation.
    See Scott v. Flowers, 
    910 F.2d 201
    , 213 (5th Cir. 1990) (holding
    that the Texas Commission on Judicial Conduct could not
    constitutionally reprimand an elected state justice of the peace
    for making public statements criticizing other county officials);
    Smith v. Winter, 
    782 F.2d 508
    , 512 (5th Cir. 1986) (finding that
    elected members of a county board of education stated an
    actionable First Amendment retaliation claim).   We are compelled
    to obey this binding precedent.
         Moreover, with respect to the First Circuit’s reasoning,
    there is a viable counterargument that Elrod and Branti do not
    exclude policymaking officials from all First Amendment
    protection.    Elrod and Branti held that the state may dismiss a
    government employee on the basis of his political beliefs only if
    (1) those beliefs would interfere with the discharge of his
    official duties, and (2) the state can show that dismissal is a
    narrowly tailored means of achieving an interest of vital
    importance.    See Branti, 445 U.S. at 517 & n.12; Elrod, 427 U.S.
    at 362-63.    In Romero-Barcelo’s case, the argument would go, the
    defendants could have shown neither, for an elected legislator’s
    expression of his political beliefs is absolutely necessary for,
    rather than detrimental to, the discharge of his official duties,
    and at any rate the state has no compelling interest in
    suppressing such speech.    See Bond v. Floyd, 
    385 U.S. 116
    , 135-36
    (1966) (“The manifest function of the First Amendment in a
    representative government requires that legislators be given the
    widest latitude to express their views on issues of policy.”).
    Thus, one could contend, Elrod and Branti do not sanction
    retaliation against a public official for the exercise of First
    Amendment rights.
         Ultimately, however, this case does not require us to
    confront Romero-Barcelo or our prior precedents, as Colson has
    not suffered harms rising to the level of actionable retaliation.
    We next explain why.
         As a general rule, the First Amendment prohibits not only
    direct limitations on speech but also adverse government action
    against an individual because of her exercise of First Amendment
    freedoms.   For example, the government may not place conditions
    on public benefits, including jobs, that penalize applicants for
    their speech, beliefs, or association.   See Pickering v. Board of
    391 U.S. 563
    , 574-75 (1968) (holding impermissible under
    the First Amendment the dismissal of a high school teacher for
    speaking on “issues of public importance”); Sherbert v. Verner,
    374 U.S. 398
    , 409-10 (1963) (holding that unemployment
    compensation may not be withheld on the condition that a person
    accept Saturday employment contrary to her religious faith);
    Torcaso v. Watkins, 
    367 U.S. 488
    , 495-96 (1961) (holding that a
    citizen cannot be refused a public office for failure to declare
    his belief in God); Speiser v. Randall, 
    357 U.S. 513
    , 528-29
    (1958) (prohibiting on First Amendment grounds the limiting of
    state tax exemptions to only those who take a loyalty oath); cf.
    Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 
    367 U.S. 886
    , 898 (1961) (recognizing that the government cannot deny
    employment because of previous membership in a particular
    political party).   This is true even where the person has no
    contractual or property right in the benefit withheld.   See Mt.
    Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 
    429 U.S. 274
    , 285
    (1977) (holding that an untenured public school teacher may not
    be discharged if he shows that constitutionally protected conduct
    was a “substantial” or “motivating” factor in the decision not to
    rehire him and the employer fails to demonstrate that it would
    have reached the same decision even in the absence of the
    protected conduct); Perry v. Sindermann, 
    408 U.S. 593
    , 599 (1972)
    (holding that an untenured teacher’s lack of formal contractual
    or tenure security in his job was irrelevant to his First
    Amendment claim that his employer, a state college, refused to
    renew his contract because of his protected speech).
         Similarly, the Supreme Court has recognized limitations on
    patronage--that is, government officials’ power to make
    employment decisions on the basis of an individual’s political
    affiliation--in Elrod, 427 U.S. at 373, Branti, 445 U.S. at 517,
    and Rutan v. Republican Party, 
    497 U.S. 62
    , 75 (1990).     In Elrod,
    the Court held that “the practice of patronage dismissals is
    unconstitutional under the First and Fourteenth
    Amendments . . . .”   427 U.S. at 373.   In Branti, the Court
    clarified that the Elrod rule applies unless the “hiring
    authority can demonstrate that party affiliation is an
    appropriate requirement for the effective performance of the
    public office involved.”   445 U.S. at 518.   Finally, in Rutan,
    the Court announced that Elrod and Branti apply not only to
    patronage dismissals but also to patronage promotions, transfers,
    and recalls after layoffs.    See 497 U.S. at 75.   The Court has
    also extended Elrod, Branti, and Rutan to government retaliation
    against a contractor or a regular provider of services for the
    exercise of rights of political association and the expression of
    political allegiance.    See O’Hare Truck Serv., Inc. v. City of
    518 U.S. 712
    , 720 (1996); Board of County Comm’rs v.
    518 U.S. 668
    , 685-86 (1996).     While Rutan and its progeny
    addressed only political patronage, we have also applied it to
    cases involving public employer retaliation for employees’
    exercise of their free speech rights.     See Brady v. Fort Bend
    145 F.3d 691
    , 703 (5th Cir. 1998) (citing Click v.
    970 F.2d 106
    , 110-11 (5th Cir. 1992)), cert. denied,
    119 S. Ct. 873
         But why is such retaliation against the exercise of First
    Amendment rights itself a violation of the First Amendment?    The
    Supreme Court has asserted that imposing penalties for speech,
    belief, and association chills the exercise of First Amendment
    freedoms and thereby indirectly produces a result that the
    government cannot command directly:
         For at least a quarter-century, this Court has made it clear
         that even though a person has no “right” to a valuable
         governmental benefit and even though the government may deny
         him the benefit for any number of reasons, there are some
         reasons upon which the government may not rely. It may not
         deny a benefit to a person on a basis that infringes his
         constitutionally protected interests--especially, his
         interest in freedom of speech. For if the government could
         deny a benefit to a person because of his constitutionally
         protected speech or associations, his exercise of those
         freedoms would in effect be penalized and inhibited. This
         would allow the government to “produce a result which [it]
         could not command directly.” Such interference with
         constitutional rights is impermissible.
    Perry, 408 U.S. at 597 (citation omitted).    Thus, in Pickering,
    the Court noted that while not a criminal sanction or damage
    award, “it is apparent that the threat of dismissal from public
    employment is nonetheless a potent means of inhibiting speech,”
    391 U.S. at 574, and observed in Elrod that “[t]he cost of the
    practice of patronage is the restraint it places on freedoms of
    belief and association,” 427 U.S. at 355.    Similarly, the Court
    justified its extension of Elrod to the patronage promotions,
    transfers, and recalls after layoffs at issue in Rutan by
    pointing out that “there are deprivations less harsh than
    dismissal that nevertheless press state employees and applicants
    to conform their beliefs and associations to some state-selected
    orthodoxy.”5   Rutan, 497 U.S. at 75.   And in O’Hare, the Court
             The Court pointed out:
              Respondents next argue that the employment decisions at
         issue here do not violate the First Amendment because the
         decisions are not punitive, do not in any way adversely affect
         the terms of employment, and therefore do not chill the
         exercise of protected belief and association by public
         employees.    This is not credible.       Employees who find
         themselves in dead-end positions due to their political
         backgrounds are adversely affected.        They will feel a
         significant obligation to support political positions held by
         their superiors, and to refrain from acting on the political
         views they actually hold, in order to progress up the career
         ladder. Employees denied transfers to workplaces reasonably
         close to their homes until they join and work for the
         Republican Party will feel a daily pressure from their long
         commutes to do so. And employees who have been laid off may
         well feel compelled to engage in whatever political activity
    concluded that a municipal government’s termination of a
    commercial relationship with an independent contractor because of
    his speech constituted, like the dismissal in Perry, a “burden on
    an individual’s right of political association,” 518 U.S. at 720,
    and an “attempted coercion of [the contractor’s] political
    association, enforced by a tangible punishment,” id. at 721.
         But it does not follow that all disadvantages imposed for
    the exercise of First Amendment freedoms constitute actionable
    retaliation.   To be sure, the Supreme Court has suggested in
    dicta that even the most trivial retaliatory harassment is
    actionable.    In Rutan’s famous footnote 8, the Court stated: “The
    First Amendment, as the court below noted, already protects state
    employees not only from patronage dismissals but also from ‘even
    an act of retaliation as trivial as failing to hold a birthday
    party for a public employee . . . when intended to punish her for
    exercising her free speech rights.’”   497 U.S. at 76 n.8 (quoting
    Rutan v. Republican Party, 
    868 F.2d 943
    , 954 n.4 (7th Cir.
    1989)).   The lower court in Rutan, however, was in turn
    characterizing its own decision in Bart v. Telford, 
    677 F.2d 622
    (7th Cir. 1982), which in fact held that trivial actions would be
    actionable only if they formed part of a campaign of retaliatory
    harassment.    See Rutan, 868 F.2d at 954 n.4.   And although the
         is necessary to regain regular paychecks         and   positions
         corresponding to their skill and experience.
    Rutan, 497 U.S. at 73 (footnotes omitted).
    Court stated in Elrod that “the inducement afforded by placing
    conditions on a benefit need not be particularly great in order
    to find that rights have been violated,” 427 U.S. at 359 n.13, it
    thereby also implied that some inducements may fall short even of
    that mark.    It follows, therefore, that there may be some minor
    adverse actions that would not constitute First Amendment
    violations.    See Sharp v. City of Houston, 
    164 F.3d 923
    , 933 (5th
    Cir. 1999) (“Although the Supreme Court has intimated that the
    First Amendment protects against trivial acts of retaliation,
    this court has required something more than the trivial.”); see
    also Scott, 910 F.2d at 216 n.32 (Garwood, J., dissenting) (“I
    believe it would be a serious mistake to take literally the
    Supreme Court’s apparently off-hand dicta about birthday parties
    in footnote 8 of Rutan.    In the body of the opinion in Rutan, the
    Court stressed that the case before it involved ‘significant
    penalties . . . imposed for the exercise of rights guaranteed by
    the First Amendment.’” (citation omitted)).
         Accordingly, this circuit has held that “[a]lthough some
    actions may have . . . the effect of chilling [the plaintiff’s]
    protected speech, they are not actionable.”    Pierce v. Texas
    Dep’t of Criminal Justice, Inst. Div., 
    37 F.3d 1146
    , 1150 (5th
    Cir. 1994).    In Pierce, the plaintiff alleged that she was
    investigated once for “trafficking” and once for a verbal
    altercation.   We found these incidents non-actionable under the
    First Amendment because “[n]either investigation resulted in any
    action being taken against Pierce.”    Id.   Similarly, we have
    held that a law school dean’s criticism, without more, of certain
    professors was not actionable:
         [A]ssuming that Douglas did, in fact, criticize Kleven’s
         [law school] participation as being counterproductive,
         Plaintiffs point to no case law (nor do we find any) which
         holds that an employer’s criticism of an employee, without
         more, constitutes an actionable adverse employment action.
         In this case, the evidence is clear that no Plaintiff has
         been discharged or threatened with discharge; no Plaintiff
         has been demoted; no Plaintiff has been denied a promotion;
         and no Plaintiff has suffered a reduction in pay. In fact,
         all Plaintiffs are tenured professors of law, having
         achieved the highest rank available at the law school. All
         Plaintiffs still teach at the law school and all Plaintiffs
         are among the law school’s top earners. Regardless of the
         arguable merits behind this, or any criticism, mere
         criticisms do not give rise to a constitutional deprivation
         for purposes of the First Amendment. Accordingly,
         Plaintiffs did not suffer an actionable adverse employment
         action when Douglas criticized Kleven as being
    Harrington v. Harris, 
    118 F.3d 359
    , 366 (5th Cir.), cert. denied,
    118 S. Ct. 603
     (1997).    Likewise, in Benningfield v. City of
    157 F.3d 369
    , 376 (5th Cir. 1998), cert. denied, 119 S.
    Ct. 1457 (1999), we held that false accusations, verbal
    reprimands, and investigations were not actionable adverse
    employment actions.    Formal reprimands, however, do qualify as
    adverse employment actions and, when given in retaliation for
    First Amendment activity, are actionable.    See Harris v. Victoria
    Indep. Sch. Dist., 
    168 F.3d 216
    , 220 (5th Cir. 1999); Pierce, 37
    F.3d at 1149.
         We now turn to Colson’s allegations.    We first emphasize
    what did not happen:    Colson was never arrested, indicted, or
    subjected to a recall election.6      Nor was she formally
    reprimanded.   This last fact distinguishes her case from Scott,
    in which we found that a single formal public reprimand of a
    judicial official in retaliation for his exercise of First
    Amendment rights was actionable under § 1983.      Scott, an elected
    state justice of the peace, wrote an open letter criticizing
    other county officials.    See Scott, 910 F.2d at 204 & n.2.    The
    Texas Commission on Judicial Conduct publicly reprimanded him.
    See id. at 204, 205 n.6.   After first acknowledging Scott’s good
    intentions and personal integrity, the Commission chided him for
    being “insensitive” and urged him to be “more restrained and
    temperate in written and oral communications in the future.”      Id.
    at 204.   Our opinion expressed no doubt that the reprimand was a
    restraint on speech, despite an eloquent dissent from Judge
    Garwood emphasizing that the Commission inflicted no injury or
    deprivation on Scott:
              I would not reach the question of whether Scott’s First
         Amendment rights would have been violated had the Commission
         taken some action which materially and adversely altered
         Scott’s conditions of employment or which placed Scott,
         individually or in his former position as justice of the
         peace, under some legal disability, or caused him in either
         capacity to lose legal rights he would otherwise have had,
         or to be legally subject to some sort of adverse consequence
         of which he would otherwise have been legally free.
    Id. at 215 (Garwood, J., dissenting).      Like Scott, Colson is an
            Colson does claim that the defendants’ conduct caused her
    to lose her bid for reelection, but she admittedly has no proof of
    this assertion.
    elected public official, and her allegations are similar to his
    in that both claim to have been the target of public criticism in
    retaliation for their First Amendment activity.   But, unlike
    Scott, Colson did not receive a formal reprimand.7
         On the contrary, Colson has alleged only that she was the
    victim of criticism, an investigation (or an attempt to start
    one), and false accusations:   all harms that, while they may
    chill speech, are not actionable under our First Amendment
    retaliation jurisprudence.   She maintains that “[i]n retaliation
    for Colson’s expressive activity, from December 1992 through May
    1994 and beyond, Defendants conspired together to falsely brand
    Colson and two of her fellow Council members, Deloss A. Miller
    and Benny Frank as criminals.”   As part of this scheme, Colson
    claims, Hogg distributed “Pearland Pandemonium” even though “he
    knew or should have known that the allegations contained in his
    report were false and would stigmatize Colson, Frank, and Miller
    and cast them in a false light in the Pearland community.”   The
             Our court has never explicitly explained why formal
    reprimands given in retaliation for the exercise of First Amendment
    rights are actionable but less formal criticisms and accusations
    are not. Scott provides additional insight into this distinction.
    It observed that the Texas Commission on Judicial Conduct, in
    reprimanding Scott, “investigated the complaints lodged against
    [him], declared him in violation of the then-existing Code of
    Judicial Conduct, and enforced its determination by issuing a
    public reprimand.” Scott, 910 F.2d at 208 (emphasis added). Thus,
    a formal reprimand, by its very nature, goes several steps beyond
    a criticism or accusation and even beyond a mere investigation; it
    is punitive in a way that mere criticisms, accusations, and
    investigations are not.
    defendants’ actions in this respect constitute no more than the
    making of false accusations, which is not actionable under
    § 1983.   Colson also asserts that “Hogg and Grohman, relying on
    information they knew to be false or with reckless disregard to
    the truthfulness of the same, repeatedly urged the Brazoria
    County Attorney’s office to indict Colson, Frank and Miller
    and/or publicly brand them as criminals.”   These actions are
    again no more than false accusations and, even insofar as the
    County Attorney’s Office did investigate them, are not actionable
    under § 1983.   Finally, Colson claims that the defendants
    circulated two sets of recall petitions, even though “they knew
    or should have known that the allegations contained in the
    Petitions were false and would stigmatize Colson, Frank, and
    Miller and cast them in a false light in the Pearland community.”
    The allegations contained in the recall petitions are, like those
    made to the County Attorney’s Office and to the general public,
    mere accusations that are not actionable under § 1983.
         Colson contends, however, that defendants’ alleged
    retaliatory misuse of the recall process is actionable under
    Smith v. Winter, 
    782 F.2d 508
     (5th Cir. 1986). In Smith, three
    elected members of a county board of education brought suit in
    response to an attempt to recall them initiated by the county
    superintendent of education.   See id. at 509.   According to the
    board members, the superintendent became upset after they
    exercised their First Amendment rights regarding school district
    matters and refused to vote in accordance with his wishes and, in
    retaliation therefor, conspired to have them removed from office
         unlawfully placing certain persons’ names on the removal
         petitions, by unlawfully allowing certain persons to sign
         the removal petitions who were not qualified to sign them,
         by unlawfully allowing certain persons to sign the petitions
         twice, by unlawfully allowing certain persons to print their
         names on the petitions, by misrepresenting the nature of the
         petitions to certain persons who signed them on the strength
         of the misrepresentations, and by falsely certifying and
         verifying [that the petitions met legal standards].
    Id. at 511 n.5.   On appeal from the district court’s grant of a
    motion to dismiss for failure to state a claim, this court
    determined “that this complaint includes allegations that the
    local appellees conspired through fraudulent means to misuse the
    recall statute against appellants in retaliation for appellants’
    exercise of their First Amendment rights.      Such a complaint
    states a claim under § 1983.”    Id. at 512.
         In this case, Colson alleges that the defendants misused the
    recall process by circulating recall petitions containing false
    information.   Her claim is missing a crucial element, however:
    She was never subjected to a recall election.      In Smith, in
    contrast, a recall election was held, although the plaintiffs
    prevailed at the polls and remained school board members at the
    time we decided the appeal.     See id. at 510.   Colson argues that
    the occurrence or non-occurrence of a recall election should make
    no difference to the success or failure of her claim; according
    to her, the Smith court acknowledged that it was the misuse of
    the recall process, not the misuse of the recall process and the
    resulting recall election, that caused injury.    Insofar as Smith
    suggested anything of the sort--and we find no clear evidence
    that it did--such a conclusion would be mere dicta, as a recall
    election did occur in that case.     Such a suggestion would also be
    inconsistent with our recent caselaw unequivocally holding that
    retaliatory criticisms, investigations, and false accusations
    that do not lead to some more tangible adverse action are not
    actionable under § 1983.8
         Finally, we must consider the argument that even if each
    individual criticism, investigation, and accusation Colson
    suffered is not actionable, the campaign of retaliatory
            Indeed, in Johnson v. Louisiana Department of Agriculture,
    18 F.3d 318
     (5th Cir. 1994), we held that retaliatory criminal
    prosecution is not actionable under § 1983 unless it satisfies all
    the elements of the common law tort of malicious prosecution. The
    plaintiff in Johnson alleged that the Department of Agriculture
    brought charges against him resulting in various penalties,
    including the revocation of his cropdusting license, four times
    because he failed to support the agricultural commissioner’s
    reelection campaign. See id. at 319-20. We said that “[i]f this
    allegation asserts a claim on any basis, we agree with the district
    court that the claim is one for malicious prosecution in violation
    of Johnson’s First Amendment rights” and that “at the very least,
    if the First Amendment protects against malicious prosecution,
    Johnson must not only allege a deprivation of a constitutional
    right, but must also establish all of the elements of the common
    law tort action.” Id. at 320. Johnson seems to suggest that in
    order to obtain relief on her retaliatory misuse of the recall
    process claim, Colson must prove all the elements of an analogous
    tort, such as abuse of civil process. The defendants argue that
    she cannot establish at least two such elements: that a civil
    proceeding was instituted against her and that she suffered special
    damages.   Johnson is consistent with our general rule that the
    plaintiff must cross a certain threshold of harm before she can
    bring a claim for First Amendment retaliation.
    harassment as a whole is.    The plaintiff in Bart, which we cited
    as support for our conclusion in Smith, 782 F.2d at 512, alleged
    that her employers had subjected her to a campaign of petty
    harassments in retaliation for her exercise of her First
    Amendment rights.   See Bart, 677 F.2d at 624.9   On appeal, the
    Seventh Circuit reversed the district court’s dismissal of the
    complaint for failure to state a claim, noting that the complaint
    alleged “an entire campaign of harassment which though trivial in
    detail may have been substantial in gross.”    Id. at 625.   Our own
    cases on this subject have taken place in the employment context,
    where we have required that the campaign of retaliatory
    harassment rise to such a level as to constitute a constructive
    adverse employment action.   For example, in Sharp, we upheld a
    jury verdict that the plaintiff had been constructively demoted
    in retaliation for exercising her First Amendment rights because
    the defendants created an “intolerable situation” causing her to
    transfer to a less desirable position.   164 F.3d at 934.    In
    Benningfield, we concluded that a plaintiff alleging a
    retaliatory “campaign of harassment and retaliation,” 157 F.3d at
    374, was not constructively discharged because she did not show
           The allegedly retaliatory campaign included such things as
    “baseless reprimands” and “[h]olding [the plaintiff] up to ridicule
    for bringing a birthday cake to the office on the occasion of the
    birthday of another employee although the practice was common and
    was especially favored in the case of supervisory personnel.”
    Bart, 677 F.2d at 624.     It is not clear whether the “baseless
    reprimands” were the sort of formal reprimands that this circuit
    has found to be actionable.
    that a reasonable person in her shoes would have felt compelled
    to resign, see id. at 376-78.    The alleged campaign of
    retaliation taken against Colson simply did not rise to this
    level.   Even viewing the summary judgment evidence in the light
    most favorable to Colson, the defendants’ allegedly retaliatory
    crusade amounted to no more than the sort of steady stream of
    false accusations and vehement criticism that any politician must
    expect to endure.   Cf. Dorsett v. Board of Trustees for State
    Colleges & Univs., 
    940 F.2d 121
    , 123 (5th Cir. 1991) (concluding
    that the pattern of retaliatory harassment, including decisions
    concerning teaching assignments, pay increases, administrative
    matters, and departmental procedures, alleged by a university
    professor did not “rise to the level of a constitutional
    deprivation” because “[i]n public schools and universities across
    this nation, interfaculty disputes arise daily” over such
    “relatively trivial matters”).   In any case, the attacks on
    Colson seem to have had no effect other than to make her “become
    more careful on which items [she] would vote on,” and they did
    not stop her from running for reelection.   We therefore find that
    Colson has not alleged any First Amendment deprivation actionable
    under § 1983.   As her Fourteenth Amendment due process claim
    rests on a theory that she suffered harm to her reputation
    coupled with the denial of her constitutional right to speak
    without retaliation, see Paul v. Davis, 
    424 U.S. 693
    , 711 (1976),
    our determination that the defendants did not infringe her First
    Amendment freedoms requires a conclusion that they also did no
    injury to her Fourteenth Amendment rights.10
                             IV.   CONCLUSION
         For the foregoing reasons, we AFFIRM the judgment of the
    district court.
            In Paul, the chiefs of police of two neighboring Kentucky
    communities distributed a flyer containing the names and
    photographs of individuals labeled “active shoplifters.” 424 U.S.
    at 694-95. The plaintiff, Edward Charles Davis III, appeared in
    the center of the second page. Although Davis had been arrested
    for shoplifting about a year and a half before the flyer appeared,
    he had pled not guilty, and the charge had been “filed away with
    leave (to reinstate),” a disposition that left it outstanding. Id.
    at 695-96. Thus, at the time the flyer was circulated, Davis had
    been charged with shoplifting, but his guilt or innocence had never
    been adjudicated, and shortly afterward a judge dismissed the
    charge altogether. Davis brought an action under 42 U.S.C. § 1983,
    claiming that the flyer, and in particular the label “active
    shoplifters,” deprived him of a Fourteenth Amendment liberty
    interest without due process of law. Id. at 696-97. The Supreme
    Court rejected this argument, holding that reputation alone, apart
    from injury to a previously recognized right or status, is not
    liberty or property protected by the Due Process Clause. See id.
    at 711. As we recounted above, Colson argues that she has made out
    an actionable Fourteenth Amendment liberty interest claim because
    she had alleged that the defendants injured her reputation and
    deprived her of “her First Amendment right to speak out on matters
    of public concern while she was a Council member, free from
    retaliation by defendants.”