First Amendment Petition Clause not limited to matters of "public concern"

Law Reporter, Apr 2000

Gable v. Lewis, - EM _, No. 98-3819,2000 WL 19123 (6th Cir. Jan. 13, 2000).

The Sixth Circuit Court of Appeals held that the Petition Clause of the First Amendment-which bars governments from abridging the right to petition them for redress of grievances-is not limited to matters of "public concern" and, therefore, applies to a business owner's retaliation claim.

Here, Gable operated an automobile towing company. She filed a complaint with a state agency, alleging sex discrimination in the allocation of the state highway patrol's automobile towing business. Subsequently, a highway patrol official removed her from the patrol's towing referral list. Gable sued the official, alleging he violated the Petition Clause by retaliating against her for filing the sex discrimination complaint. A jury found for plaintiff. Defendant appealed, claiming the Petition Clause did not apply because only speech concerning matters of "public concern" is protected from retaliatory conduct. Plaintiff's complaint, defendant asserted, was personal to her and, therefore, not a "public concern."

Affirming the jury's verdict, the Sixth Circuit found that the "public concern" test-established by the U.S. Supreme Court in Connick v. Myers, 103 S. Ct. 1684 (1983)is used to maintain order and avoid disruption in a government workplace. Here, the court noted, plaintiff is not a government employee subject to the discipline of a government employer. Thus, the reason for the test is absent, and, consequently, it does not apply. Moreover, the court explained, the "public concern" test has never been applied to the Petition Clause, nor to citizens who were not government employees. Additionally, the court cited case law establishing that the Petition Clause is not limited to matters of "public concern" but also includes complaints involving private business interests, such as plaintiff's.

Plaintiff's Counsel

Alphonse A. Gerhardstein, Cincinnati, Ohio

Comment: In O'Hare Truck Serv. v. City of Northlake, 116 S. Ct. 2353 (1996), 39 ATLA L. Rep. 272 (Sept. 1996), the U.S. Supreme Court held that the First Amendment protects independent contractors against termination by local governments for failing to show political loyalty. Harvey Grossman, Jane M. Whicher, Barbara P. O'Toole, Steven Rt Shapiro, Colleen K Connell, Thomas C. Crooks, Marc 0. Beem, and David O'Toole, all of Chicago, Ill., and Michael P. McGovern, Knoxville, Tenn., represented plaintiffs. Similarly, in Board of County Comm`rs v. Umbehr, 116 S. Ct. 2342 (1996), 39 ATLA L. Rep. 272 (Sept. 1996), the U.S. Supreme Court held that the First Amendment provides some protection to independent contractors against termination for speaking out on public issues. Robert A. Van Kirk, Alexandria, Va., and Richard H. Seaton and Brenda J. Bell, both of Manhattan, Kan., represented Umbehr.

Court documents in Umbehr are available through the Court Documents section in the back of this issue, courtesy of Mr. Van Kirk.