June 10, 2013 Articles

Enemy of the People: Pleading the First Amendment Retaliation Claim

Understand fact patterns before engaging in a lengthy and expensive discovery process.

By Christopher A. Tinari and Michael R. Miller – June 10, 2013

An Enemy of the People, a Norwegian play written by Henrik Ibsen, explores how the fictional Dr. Thomas Stockmann can fall from celebrated citizen to despised pariah in the court of public opinion. After conducting several scientific experiments, Dr. Stockmann discovered the town’s popular bath houses, from which local businesses derived significant revenue, were contaminated with bacteria and caused serious illness to its tourist customers. When Dr. Stockmann announced his discovery, he expected to be lavished with civic pride and reward for protecting the health and reputation of the town. Instead, Dr. Stockmann was defamed by civic leaders, including his own brother as town mayor, for an announcement that could lighten their wallets. Throughout the remainder of the play, town citizens retaliate against Dr. Stockmann in various ways in an attempt to run him out of town.

While Dr. Stockmann may not have been a town “employee” as defined under American law, citizens who speak out about civic waste and harm to the public interest may fear reprimand, suspension, or termination from their government employer. Accordingly, the First Amendment of the U.S. Constitution has been construed to protect federal, state, and municipality workers from employer-based retaliation in certain circumstances. This article aims to identify whether a viable First Amendment retaliation claim exists when drafting or responding to a pleading.

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