Cases & Developments

Opinion granting Defendants’ Motion for Summary Judgment. Plaintiff, a former full-time philosophy lecturer at New Jersy Institute of Technology (NJIT), brought a First Amendment retaliation claim against the Institute when his contract was not renewed following revelations that he had founded an organization called the “AltRight Corporation” and published views advocating white supremacy. An investigation conducted while he was on paid administrative leave found that he had violated the New Jersey ethics code by not disclosing “that he was a founder, director, and shareholder of the AltRight Corporation,” he had inaccurately asserted that a New York Times video of him discussing his views had been misleadingly edited, and he had cancelled 13 classes in Spring 2017 without informing his department while “exhibit[ing] a clear pattern of non-responsiveness” to communications throughout his employment. In granting summary judgment in favor of NJIT, the court held under the Pickering balancing test that plaintiff’s speech “does not merit protection under the First Amendment,” noting particularly that “Plaintiff’s speech did not merely cause offense—it disrupted (and was likely to further disrupt) NJIT’s administration, interfered with NJIT’s mission to effectively provide a hostile-free learning environment for its students, and impeded Plaintiff’s ability to effectively perform his teaching duties.” 

Order denying Defendants’ Motions to Dismiss. Plaintiff, an inmate and student in the Wesleyan University Center for Prison Education (CPE) Program at Cheshire Correctional Institution, represented by court-appointed pro bono counsel, brought First Amendment retaliation claims against Department of Correction (DOC) officials and conspiracy to commit First Amendment retaliation claims against DOC officials and the University’s administrator for the CPE Program after he was removed from the program for refusing to sign a form related to rules of conduct for inmates. He alleged that the form was a way to implement “punitive practices against inmates in response to restrictions placed on DOC personnel by the passage of the Connecticut Protect Act” and that University volunteers disapproved of the requirement. Plaintiff also alleged that his transfer to a different facility for security concerns was pretextual to avoid a possible injunction. In permitting the First Amendment retaliation claim to proceed against the DOC defendants, the court found that (1) refusal to sign the form may be protected expressive activity and (2) plaintiff had also sufficiently alleged adverse actions and causal connection. In permitting the conspiracy claim to proceed against the University’s program administrator, it held that allegations that the administrator was aware of the plan to pressure inmates to sign the form and subsequently participated in removing plaintiff from the program were sufficient to allege that he had agreed to act in concert with the DOC Defendants, notwithstanding the University’s MOU granting the DOC unilateral authority to remove inmates from the program.

Opinion vacating the judgment of the Second Circuit and remanding. In 2017, New York Department of Financial Services superintendent Maria Vullo began investigating affinity insurance programs offered by the National Rifle Association (NRA), finding that the “Carry Guard” program insured, among other things, intentional criminal acts and that the NRA offered the program without an insurance producer license. In addition to criticism of the NRA in press releases and contemporaneous statements from then-Governor Cuomo, Vullo entered into consent decrees with the companies administering and underwriting the program, issued guidance encouraging insurance and financial companies to reevaluate their business “with the NRA or similar gun promotions organizations,” and told one company in a meeting that it could avoid further enforcement action if it “would scale back its NRA-related business.” The NRA brought First Amendment censorship and retaliation claims against Vullo, alleging that she targeted the NRA for its pro-gun advocacy. The district court denied Vullo’s motion to dismiss, but the Second Circuit reversed, finding neither the guidance nor the meeting with the company were individually unconstitutional. The Supreme Court unanimously vacated the judgment of the Second Circuit, finding that the allegations, if true, were sufficient to state a First Amendment claim and that “[t]he Second Circuit could only reach [its] conclusion by taking the allegations in isolation and failing to draw reasonable inferences in the NRA’s favor.”