In late August 2018, a public school teacher in Corona, California took it upon herself to anonymously subject our living history venue, Riley’s Farm, to “cancellation.” For three decades, Riley’s Farm has hosted living history field trips for children, staging reenactments of the American Revolutionary War, the Gold Rush Era, and the Civil War. The elementary school teacher in question (who hid behind the name “Elizabeth Adams” on Facebook) was scandalized that I would Twitter-mock Stormy Daniels, Louis Farrakhan, and the notion that “white nationalism” actually existed in America. The fact that none of my personal views are featured in our living history programs didn’t matter. All who mock the progressive catechism are to be stripped of their living.
In an era where no one gets officially scolded for endorsing “drag queen story hour” or puberty-blockers for 12 year-olds, the idea of children learning American history on a farm owned by a Christian conservative is just icky, awful and counterrevolutionary, comrade.
She wouldn’t admit it, but “Elizabeth Adams” and her peers are religious fundamentalists—as shallow, brittle, and rigid as any band of Salem witch hunters.
In the wake of this crusade, we were encouraged by several attorneys familiar with Bill of Rights case law to take our case to court. Government agencies are not allowed to engage in First Amendment retaliation. Government agencies don’t get to use taxpayer money to organize boycotts against small businesses. Justices as liberal as Sonia Sotomayor have agreed: we don’t want civil servants or government contractors losing their jobs for having a different political opinion. It simply isn’t American.
Well, after nearly four years in federal court, I’ve learned a few lessons about the process.
- Qualified immunity effectively allows government officials to ignore all of your constitutional rights if they feel like it. Originally intended to reduce frivolous lawsuits, qualified immunity pretty much disallows most reasonable lawsuits from going forward.
- Litigation is absurdly expensive, procedural, and time-consuming.
- The courts aren’t above wielding this time-and-money threat to ward off cases they don’t like. A lot of federal jurisprudence is just a simple matter of clearing the docket to get home for the weekend, no matter how much money has been spent by the plaintiffs, or how worthy their causes.
- The courts can even make downright amateur mistakes without apology, knowing it will be absurdly expensive to appeal, and correct, them.
- Your right to a “trial by jury” is largely just a pleasant fiction. Judges have multiple opportunities to throw a case out before a jury ever gets to hear it, and if you want to challenge that, refer back to the “absurdly expensive” part.
- Without the opportunity for punitive and compensatory damages, who would possibly risk millions of dollars to pursue a claim that might serve to strengthen civil liberties?
- If we don’t make changes to our system, the average citizen will continue being brutalized by a process that allows the ruling party to do anything it damn well pleases. Thousands of abused citizens will face honest lawyers who will sadly advise them, “you don’t have a chance.”
In our case, on the critical matter at the very center of the issue, First Amendment retaliation, most of the parties agree. Judge Jesus Bernal, an Obama appointee, ruled “[Riley’s Farm] plausibly alleges the decision to cancel field trips and prohibit future ones was retaliatory in nature.”
A Ninth Circuit panel of judges (all Republican appointed), ruled:
the panel held that the plaintiffs [Riley’s Farm] had established a prima facie case of retaliation against the School defendants that could survive summary judgment. The panel held that there was no dispute that Riley engaged in expressive conduct, that some of the School defendants took an adverse action against Riley’s Farm that caused it to lose a valuable government benefit and that those defendants were motivated to cancel the business relationship because of Riley’s expressive conduct. The panel also held that there was sufficient evidence that the Board members had the requisite mental state to be liable for damages for the ongoing constitutional violation . . .
Linear-thinking fellow that I am, my response in the face of these pronouncements has been to wonder, out loud and sometimes a little irreverently, “so what, exactly, is the hold-up?”
Simply put, both the government, generally, and the judiciary, specifically, have a thousand ways to put a good cause on hold, and potentially on ice. The doctrine of qualified immunity itself is a prime example of both judicial power and judicial sloth. Instead of formulating a legal doctrine that takes into account the different decision thresholds faced by policemen making life and death decisions and public school officials placating, over weeks, a single gadfly parent, the courts have given the government an idiotic Catch 22. No matter how just your cause, if no one else has won a similar case, you lose. Get it? Your cause is righteous, Mr. Riley. Public officials really did retaliate against you. But no one else has ever won such a case, so you don’t get to win yours. Why would that bother you?
Likewise, all of you are paying public officials for their own defenses. The trough is pretty deep, and if it gets close to running low, well, there’s next year’s round of sales taxes, gas taxes, property taxes, income taxes, usage fees, consumption taxes, estate taxes, and on, and on, and on. The government will use that money to file motion after motion and response after response. Each step represents another three to 12 month delay, another $12,000 to $100,000 in fees, depositions, discovery. The game is to bleed you dry before you ever even think of selecting a jury. Listen, kid, a jury is years away.
More generally, the public gig is pretty sweet, isn’t it? There are millions of American snouts in that trough and they get 12 federal holidays, two weeks vacation (to start), taxpayer guaranteed pensions, healthcare, personal days, and the pleasure of working in a system where paychecks are granted without much of anything getting done. You want to sue us, Mr. Riley? You want to put a kink in our Christmas-everyday party? Well, damn straight, we’re going to make it difficult, if not impossible, for you. You actually thought we were public servants?
So Why Fight?
In spite of all these obstacles, some cases find their way through this morass to victory. This year, we’ve seen absolutely stunning wins for constitutional integrity. The EPA was dealt a blow in its bid to appoint themselves legislators. Second Amendment rights were upheld, and public schools were slapped back for firing a praying football coach. Finally, after 50 years, the dimwittery, and sheer evil, of Roe v. Wade was brought to an end. Our case, in an era more friendly to the Bill of Rights, has a chance to make both First Amendment and qualified immunity history.
At this point, two things could happen. I could give up. The timid political types who get elected to the board of education will go right on placating the kind of people who send 12 year-old girls off for breast removal without their parents’ consent. The critical race theory cultists who want your children to apologize for their whiteness and their heterosexuality and their heritage will go right on using public agencies to enforce group-think and destroy anyone who disagrees. The slugs at every level of local, state, and federal government will quietly celebrate, knowing they can pretty much tell you peasants “the Constitution is nice, but qualified immunity is nicer. Do what we tell you to do.”
I Have a Dream . . .
On the other hand, I could keep on working to call their bluff. To do that, however, I would need to pay good attorneys to do what they need to do: fight this monster. With the help to do that we could create the impression in the opposition, “this guy has a million people behind him. He’s not backing down.”
And if we were to win at the Supreme Court and the local district court? The word would go out. Do not engage in First Amendment retaliation. Do not cave to every green-haired, alt-sexed, America-hating, logic-petrified weirdo who gets up to complain at the next school board meeting.
No One Is Minding the Store
In one respect, most Americans consider the Bill of Rights to be something like Yosemite National Park or Independence Hall. We all think, “surely, someone is taking care of our important institutions, right?” Someone is guarding both the shrines, and the personal liberties we take for granted. Surely there is a broad fraternity of lawyers, judges, and claimants who are fighting to keep the Bill of Rights safely what it should be—a mighty bulwark against the evil designs of the administrative state, tyrannical politicians, and activist judges.
Well, I left out the most important lesson. I saved it here for the end. A lot of the “players” at all levels of government, haven’t just abandoned the store. They want the store burned down. Several lawyers have told me the new generation of young jurists have no problem whatsoever ending free speech as we know it. Some of them see free speech, even reason, even the facts, as “tools of oppression.”
If we don’t mind the store, don’t be surprised if someday, we find ourselves stumbling around in its ashes.