First Amendment Civil Rights

The First Amendment, made applicable to State action through the Fourteenth Amendment, states:

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.

Among other things, including protecting public dissemination of information and opinions from unreasonable government interference, "the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951 (2006).  "A plaintiff making a First Amendment retaliation claim under § 1983 [the statute permitting a private right of action for constitutional torts] must initially demonstrate by a preponderance of the evidence that: (1) his speech was constitutionally protected, (2) he suffered an adverse employment decision, and (3) a causal connection exists between his speech and the adverse employment determination against him, so that it can be said that his speech was a motivating factor in the determination. If a plaintiff establishes these three factors, the defendant has the opportunity to show by a preponderance of the evidence that it would have taken the same adverse employment action even in the absence of the protected conduct." Morris v. Lindau, 196 F.3d 102 (2d Cir. 1999).

In a First Amendment Retaliation claim, “the causal connection must be sufficient to support the inference e that the speech played a substantial part in the employer's adverse employment action." Diesel v. Town of Lewisboro, 232 F.3d 92, 107 (2d Cir.  2000) quoting Ezekwo v. NYC Health & Hospitals Corp., 940 F.2d 775, 780-81 (2d Cir. 1991).  Such causation may be established through a "showing that the protected activity was closely followed in time by the adverse action." Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996).

The damages that may be awarded in a First Amendment retaliation case include injunctive relief, compensation for economic loss (i.e., lost wages), attorneys fees, and emotional distress.  

Emotional distress awards within the Second Circuit can generally be grouped into three categories of claims: garden-variety, significant and egregious.” Olsen v. County of Nassau, 615 F. Supp. 2d 35, 46 (E.D.N.Y. 2009).  The amount of damages in any particular case is a highly fact-sensitive inquiry, and the amount awarded is subject to judicial review.  See e.g. Thorsen v. County of Nassau, 722 F. Supp. 2d 277, 292 (E.D.N.Y. 2010)(reducing $1.5 Million Award to $500,000 for a ‘serious’ emotional distress claim in the context of retaliation for supporting the losing political camp in an election); Phillips v. Bowen, 278 F.3d 103, 106 (2d Cir. 2002)($400,000 emotional distress award for First Amendment Retaliation based upon supporting an opposing candidate for Sherriff where “defendants' animosity permeated plaintiff's work environment).  See also Long Island Legal News, "Jury Awards 350K in First Amendment Civil Rights Lawsuit.")