Samuel Wurzelbacher, a.k.a. "Joe the Plumber," has parlayed a campaign stop criticism of then-Senator Barack Obama's tax plan into Internet notoriety, cable commenter gigs, and a congressional bid. He could teach a master class in how to capitalize on 15 minutes of fame. But he can't bring a First Amendment retaliation lawsuit in federal court.
Tuesday, the Sixth Circuit Court of Appeals ruled that Joe the Plumber did not satisfy the circuit's three-prong criteria for a retaliation lawsuit.
Following Joe the Plumber's star-making turn asking candidate Obama a question in October 2008, three high-ranking Ohio bureaucrats researched Joe in the Ohio Department of Job and Family Services databases. The Ohio Inspector General later determined that the officials -- defendants Helen Jones-Kelley, Fred Williams, and Doug Thompson -- had "no legitimate agency function or purpose" for researching Joe in the databases. Jones-Kelley and Williams resigned following the incident. Thompson was terminated.
Joe the Plumber sued the trio, alleging First Amendment retaliation. According to the complaint, the defendants -- who all supported Obama's campaign -- only sought information about Joe after his interaction with Obama and his subsequent televised appearances. The district court dismissed Joe's case, and the Sixth Circuit Court of Appeals affirmed the dismissal.
The Sixth Circuit applies a three-prong test to First Amendment retaliation claims. To survive summary judgment, a plaintiff must allege:
- The plaintiff engaged in constitutionally protected conduct.
- An adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and
- The adverse action was motivated at least in part by the plaintiff's protected conduct.
The appellate court concluded that the adverse action that Joe the Plumber alleged was insufficient to create a cause of action. Joe didn't suffer a threat to his economic livelihood, was not defamed, did not endure a search or seizure, and the officials did not publicly disclose facts about him. Since the defendants' actions didn't "chill" his free speech, the Sixth Circuit said he couldn't bring his claim.
While Joe the Plumber may be disappointed that his First Amendment retaliation was dismissed, the break from litigation should at least give him more time to focus on his congressional campaign.
- Samuel Wurzelbacher v. Helen Jones-Kelley (Sixth Circuit Court of Appeals)
- Court Hears First Amendment Retaliation Appeal Against Sheriff (FindLaw's Ninth Circuit Blog)
- Can 'Joe The Plumber' Get Elected to Congress? (FindLaw's Law & Daily Life)