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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Filed Under: 1st amendment, free speech, guy brock, nebraska, ord

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