Small Nebraska Town Pays $16,000 To Resident It Attempted To Sue Into Silence

from the 2,300-residents-being-woefully-mismanaged dept

You most likely have never heard of Ord, Nebraska. There’s no reason you should have. Obviously, the town’s government would prefer you’ve heard of it, but it’s impossible to be well-informed about every small town in a country the size of the United States. Here’s how the town government pitches its wares:

Ord is a vibrant town of 2,300 residents nestled in the scenic North Loup Valley on the eastern edge of the Nebraska Sandhills. Recognized in publications that include the New York Times and National Public Radio, Ord and the Valley County community is genuine and progressive with a wealth of business opportunities, a full spectrum of recreation excitement, and good old-fashioned home-town living.

Good news, Ord officials: your town is about to be recognized in even more publications, but not for its vibrancy or its allegedly “progressive” community. Instead, the town will be recognized for being the home of government officials who can’t handle the heat that comes with holding a public office. Being in a position of power, however limited, means having to be the bigger person. And that’s what town leaders failed to do when faced with a minor annoyance. (h/t Volokh Conspiracy)

Town resident Guy Brock likes writing letters to town government officials. The Ord government — including the local police chief — didn’t like receiving this constant stream of letters. So, the town sued Brock, seeking a restraining order forbidding him from writing to government officials. The town, unsurprisingly, lost this lawsuit. Having been made aware (possibly for the first time) that prior restraint is a First Amendment violation, the town dropped the suit.

Brock sued back, alleging First Amendment violations by the town government. The court agreed with Brock’s arguments and refused to extend qualified immunity to the defendants. In September of last year, a federal court handed Brock a win by denying the town’s attempt to get the lawsuit dismissed. The court [PDF] was extremely unamused by all of this. It had nothing good to say about any of the participants in this legal action. The judge first went after town officials, who never should have engaged in the actions they took that ultimately resulted in this federal lawsuit:

[J]ust because this case will be permitted to proceed doesn’t mean it ought to. All of the people involved with this lawsuit should regret being here. To begin with, nearly every public official draws the attention of critics and cranks who have opinions they insist on sharing. This Court has no shortage of its own pen pals. But rather than accept that as one of the privileges of public service, the defendants decided to pursue a lawsuit that asked a county court to impose a prior restraint on the plaintiff’s speech.

Then the court went on to benchslap the plaintiff, the more-vibrant-than-most Guy Brock:

The plaintiff, for his part, prevailed in that case, and for his part could have been content with having his First Amendment rights vindicated by that victory—but instead, he’s filed another lawsuit in response, despite facing no current peril.

The court apparently wasn’t pleased with this interruption of its schedule.

This Court’s docket is full of cases genuinely implicating lives, livelihoods, and liberty—but instead of addressing those claims, the Court finds its attention diverted by having to referee this squabble. It is tempting to turn this car around and go straight home. But of course, as long as the parties intend to keep it up, the Court is duty-bound to preside, so instead, the Court proceeds to the merits.

This undersells the case and places far too much blame on the person whose rights were violated. This case involves liberty. Town officials sought to engage in prior restraint and failed. But a dismissed county lawsuit is hardly a deterrent. The town should realize there are consequences to these actions, which is what Brock was hoping to achieve with his federal civil rights lawsuit.

The federal court made it clear Brock should prevail, even if it has yet to render a final decision.

Here, Brock has alleged that in response to his letter-writing, the defendants brought legal action against him. In the resulting lawsuit, the City sought to permanently limit Brock’s speech and also requested monetary damages, attorney fees, and costs. Brock further alleges that he was “forced to retain counsel at his own expense in order to defend his rights to speak freely and petition his government.” Taking these facts as true, Brock has sufficiently established that the defendants’ actions caused him to suffer a concrete injury. It can also be plausibly inferred that a person of ordinary firmness would be chilled from further petitioning city officials once facing civil liability and the threat of monetary damages. (Nor would it be unreasonable to conclude that a lawsuit expressly meant to prevent Brock from petitioning was, in fact, meant to deter him from petitioning.)

The officials — the mayor and the town legal rep who met and decided to sue Brock over his letter writing — cannot rely on qualified immunity to escape this lawsuit.

At the time the lawsuit was filed, it was clearly established beyond debate that citizens have a right to be free from intentional, retaliatory conduct by the government in response to protected petitioning.


Further, the precedent of this Circuit clearly established that citizens have a right to be free from government officials engaging the machinery of the government to lodge baseless proceedings against them for exercising their right to petition.

With a presumptive win on the merits for Brock and the attendant stripping of immunity, the town has decided to stop blowing residents’ taxes on prior restraint and arguing against residents’ interests by continuing to fight Brock’s lawsuit. It’s now going to blow residents’ money on paying Brock for violating his rights.

At a hearing in December, Brock and a representative for the town’s insurance carrier, Oak Creek Insurance, told U.S. Magistrate Judge Cheryl Zwart they had reached the $16,000 amount to release Brock’s claims and the city’s defenses and to dismiss the case.

The best use of the town’s money would have been to never try to stop Brock from writing letters to town officials. And while the court might have felt Brock’s lawsuit was a waste of its time, it certainly wasn’t for Brock. He hired a lawyer to combat the town’s unconstitutional lawsuit, forcing him to spend money he wouldn’t have if the town government had decided to be the grown-up in the room, rather than respond petulantly. Walking away from the county court dismissal would have given the town an unearned victory of sorts — one in which it succeeded in harassing a resident and forcing him to spend money to defend his rights. The federal court allowing this lawsuit to move ahead was all it took to force the town to engage in more meaningful contrition and make residents aware just how much it costs them when their representatives screw up.

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Comments on “Small Nebraska Town Pays $16,000 To Resident It Attempted To Sue Into Silence”

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That Anonymous Coward (profile) says:

"for his part could have been content with having his First Amendment rights vindicated by that victory—but instead, he’s filed another lawsuit in response, despite facing no current peril."

So he was just supposed to eat the costs of them violating his rights?

Given their response to his letters, having to be hit with the rolled up newspaper of paying him should keep them from doing something this stupid again.

Of course the next question is has anyone checked the past cases this town has filed? This can’t be the first time people this thin skinned have sought the law to save them.

Stephen T. Stone (profile) says:

the court might have felt Brock’s lawsuit was a waste of its time

Any court that believes a lawsuit filed against an actual First Amendment violation is “a waste of its time”, especially in a context such as the one in this case, is a court that needs reminding that the First Amendment protects everyone⁠—including people that the courts don’t like.

Anonymous Coward says:

1, You don’t have to read letters sent to you, there is no law that says you have to read, let alone read a letter, email, tweet, gram, text or smoke singles.

B, to sue a citezen, a voter no less, wasting his own time sending a letter you don’t have to read is pure verdictive. It’s like suing Howard Stern because you don’t like dick jokes (Clue:Just don’t listen).

The guy that sued the city back (Guy) did the right thing Most would take the win and quit.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Part of the settlement should have required the town’s officials, who brought the original 1A stifling suit, to write a letter of apology, explaining why they were wrong to file suit, and describing how the 1st amendment protects citizens from government interference when criticizing said government, using themselves as an example.

Then they would be required to mail that letter to all 2,300 residents at their own expense.

But hey, that’s just my opinion.

Some Guy says:

Re: Re:

I agree the town got off very very light.

Notice it was the town’s insurance carrier that settled with the guy. I’m sure this was after the town lawyer, said you will loose and loose big, and that means the insurance company will have to pay, so better get them involved.

Insurance companies being cheap, just want to pay as little as they can. The write the letter apologizing would have been great. The insurance company would have seen that as nothing they have to pay for, ah maybe postage at most.

The other thing he should have asked for is that the the town leadership yearly complete a training course on 1A rights of the people for the next ten years, and keep records of the training. The insurance company would surely not oppose that condition, since it doesn’t take any money from them. Jeff Gray recently asked and got something like this from a small town along with a small amount of cash.

Ceyarrecks (profile) says:

Missing Detail

Anyone notice the missing detail?
The suit shows, really the only way, of how citizenry contact and communicate with their government.
There is,… another way,…
that is used (seemingly to much greater effect) to communicate with the government:

just sent cleavage and short skirts or chest hair with biceps (depending on gender/preference of target government official) whom are making vague, ambiguous, or plausibly deniable statements about campaign contributions, paying for tuition that their kids do not need to attend, etc, etc, etc.

Bobvious says:

A Hazardous lawsuit? Full Marx to the plaintiff

You know this judgement’s gonna cost each resident seven
Even though the dopes in town tried to shut me down with lawsuits
We said DON’T WRITE!

Three years ago when I started writing letters
First time that someone got annoyed and a case of butthurt
The law’s on my side

They should have read the Constitution
In this small North Loup Valley town
They should have been the "grown-up in the room"
And avoided this court room smackdown

No one understands all their civic duties
No one cares that’s there’s gonna be some consequences
‘Cause all the chickens came home

Man with a badge didn’t like being questioned
Here was I being sued by a bunch of jerks suddenly
Attacking me

I swear I’m gonna keep on writing
I swear I’m gonna stay around
I know about the First Amendment
And so will this Nebraska town

I think about the court smackdown
How this town is wrong
No qualified immunity
All their defences are gone, long ago

I swear I’m gonna keep on suing
I swear I’m gonna stay around
I know about the First Amendment
And so will this Nebraska town

dadtaxi says:

Obviously money doesn't matter to the court

Yet another reason why a court should be able to require payment of reasonable costs. its nor certain but very probable that this lawsuit would not even have been brought if he didn’t have to counter sue to get his money back.
Very disingenuous of the court to disparage that as a reasonable expectation even as it goes on to accept it as a reasonable case to bring on its merits

Anonymous Coward says:

voters need to do a better job of hiring...

Yet another instance of wasted taxpayers money because elected officials have a thin skin, ignore the law, or are ignorant of the law. It would appear that taxpayers, when electing their "leaders", need to do a better job of vetting the ‘applicants’ for the job. In a small town, it is small sums and petty annoyances – but we have already seen the consequences of electing under-qualified, thin-skinned, and ignorant fools to high office, even the "highest office in the land".

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