Opposition Brief — Mezibovov v. Allen (No. 05-945)

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Mezibov at 717. The court below explained that its holding

merely recognizes the “commonsense principle” that

“attorneys do not possess ‘any right in the First Amendment

that is not the common legacy of every citizen’” Mezibov at

719 (quoting Ukranian-American Bar Assoc., Inc. v. Baker,

893 F.2d 1374, 1381 (D.C. Cir. 1990)). Since no citizen has

a right to “speak up or otherwise present a point of view in

the courtroom,” neither does an attorney. /d. at 718.

Mezibov has not cited one case from this Court or a

circuit court that conflicts with the decision below. Rather,

he exaggerates the sweep of the holding by implying it

extinguishes attorneys’ First Amendment rights in all settings.

He casts the Sixth Circuit’s decision in terms of a diminution

of the “social value” of an attorney representing a client and

states the decision threatens the criminal justice system.

(Petition at pp. 9-10). In fact, when read in proper context,

the decision below is a mere recognition of the longstanding

principal that the courtroom is a nonpublic forum, not a venue

for free and open debate. Thus, expressive activity undertaken

on behalf of clients in the course of judicial proceedings

cannot satisfy the “protected activity” element of the

attorney's First Amendment retaliation claim under § 1983.

Mezibov’'s cites Canatella v. California, 304 F.3d 843

(9th Cir. 2003) as “recognizing [an] attorney’s First

Amendment right to advocate for [his] client ...”

(Petition at p. 8). Canatella involved an attorney's challenge

of state statutes and rules of professional conduct which he

claimed were vague and overbroad under the First and

Fourteenth Amendments. The district court in Canatela

dismissed the case for lack of subject matter jurisdiction.

The Ninth Circuit held that the district court could properly

accept jurisdiction of the case, the attorney had standing,

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and the attorney’s claims were ripe for review. The

Ninth Circuit never reached the substantive issue of whether

the attorney had personal First Amendment protection for

any in-court statements he might make.

Mezibov cites Lewellen v. Raff, 843 F.2d 1103 (8th Cir.

1988), a case that is inapposite for several reasons. Lewellen

was a defense attorney who became involved in a plan to

“settie” criminal charges against his client. His client agreed

to leave town if the complaining witnesses agreed not to

testify. The prosecutor instituted criminal proceedings against

Lewellen for bribery. Lewellen sued the prosecutor in federal

court under § 1983 seeking to enjoin the state court case

against him. Lewellen alleged the prosecutor charged him

with bribery because he was black, because he ran for a

political office against an incumbent of the prosecutor’s party,

and because of certain ob,ections he made to jury selection

procedures utilized by court during his client’s trial.

The district court granted the injunction so that the § 1983

case could be tried on the merits prior to the start of the

criminal trial against Lewellen. The prosecutor appealed the

decision to issue the injunction. The Eighth Circuit concluded

the district court’s preliminary factual findings were not

clearly erroneous and were sufficient to support issuing

the injunction. It never reached the merits of whether

the attorney’s in-court statements on behalf of his

client constituted “protected activity” for purposes of a

First Amendment retaliation claim.

Mezibov also cites Levine v. United States District Court

for the Cent. Dist. of Cal., 764 F.2d 590 (9th Cir. 1985).

In Levine, attorneys representing a defendant in a criminal

prosecution sought a writ of mandamus compelling the

district court to dissolve a restraining order it had issued to

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prevent them from speaking with the media. The Ninth

Circuit analyzed the restraining order under strict scrutiny

as a prior restraint on the attorneys’ First Amendment right

to free speech outside the courtroom. Mezibov attempts to

create a conflict by highlighting the Levine court’s statement

in passing that “attorneys and other trial participants do not

lose their constitutional rights at the courthouse door.”

Id. at 595. However, the challenged restraining order in

Levine had no limitations on the attorneys’ in-court

statements on behalf of their clients, nor on the contents of

motions or other court communications. Levine at 593, n. 1.

In fact, the court below expressly recognized that attorneys

do have First Amendment protection for out-of-court

statements. Mezibov at 718 n. 1. Thus, there is no conflict

between Levine and the opinion below.

Mezibov also cites this Court’s opinion in Legal Services

Corp. v. Velazquez, 531 U.S. 533 (2001). Velazquez involved

the Legal Services Corporation, a non-profit organization

created by Congress to distribute funds to local organizations

for the representation of indigent clients. A federal statute

allocated federal funds for the representation, but contained

a condition prohibiting representation if it involved an effort

to amend or challenge existing welfare law. Because the

condition effectively placed a prior restraint on otherwise

reasonable arguments that could be made on behalf of the

indigent clients, this Court declared the condition invalid.

Id. at 549. The Court in Velazquez was concerned that

legitimate arguments and legal theories that could be

advanced on behalf of the clients would be silenced, resulting

in a deprivation of the clients’ rights. As recognized by the

Court below, “Velazquez does not recognize a First

Amendment right personal to the attorney, independent of

his client.” Mezihov at 720.

1]

The court below merely held that for purposes of the

“protected activity” inquiry in an attorney's First Amendment

retaliation claim, the attorney has no “personal First

Amendment rights” in his client’s criminal proceeding.

Mezibov at 721. The Sixth Circuit’s opinion is consistent

with the prior decisions of this Court and the other circuits

and the petition for writ of certiorari should be denied.

Il. THERE IS NO CONFLICT AMONG THE

CIRCUITS REGARDING THE PROPER

STANDARD FOR FINDING ADVERSE ACTION IN

A FIRST AMENDMENT RETALIATION CLAIM

In finding Mezibov failed to allege adverse action of

sufficient constitutional dimension to support a § 1983

retaliation claim, the court below clearly applied the

appropriate rule of law: “[T]he plaintiff must ultimately prove

... an adverse action was taken against the plaintiff that

would deter a person of ordinary firmness from continuing

to engage in that [protected] conduct.” Mezibov at 717 (citing

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999)

(en banc)). This is the same legal standard used by the other

circuits. Bennett v. Hendrix, 423 F.3d 1247, 1250-51 (11th

Cir. 2005) (listing cases). Mezibov’s argument that the court

below adopted a novel “actual chill” requirement for First

Amendment retaliation claims is specious.

Mezibov’s real quarrel with the decision below is with

the court’s application of the rule. However, the Sixth

Circuit’s application of the objective “person of ordinary

firmness” test was also consistent with the other circuits.

First, the court recognized it could only take into account

those comments made by Allen that could possibly be

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considered defamatory because Allen himself retained

First Amendment rights.’ Mezibov at 722.

The court applied the objective “person of ordinary

firmness” standard, as do other circuits, by tailoring the

analysis to the particular circumstances of the plaintiff’s

claim. The court recognized that the definition of adverse

action is not static across contexts. “Prisoners may be

required to tolerate more than public employees, who may

be required to tolerate more than average citizens, before an

action taken against them is considered adverse.” Mezibov

at 721 (citing Thaddeus-X at 398 (“The benefits of such a

standard are that it is an objective inquiry, capable of being

tailored to the different circumstances in which retaliation

claims arise, and capable of screening the most trivial of

actions from constitutional cognizance.”). Thus, the court

stated, the appropriate application of the test in Mezibov’s

case was whether the alleged defamation would “deter a

criminal defense attorney of ordinary firmness from

continuing to file motions and vigorously defend his client.”

Mezibov at 721.

This context-sensitive approach to applying the objective

standard has been endorsed by other circuits. See Bennett at

1252 (11th Cir.); Suarez Corp. Indus. v. McGraw, 202 F.3d

676, 686 (4th Cir. 2002) (“Determining whether a plaintiff's

First Amendment rights were adversely affected by retaliatory

conduct is a fact intensive inquiry that focuses on the status

of the speaker, the status of the retaliator, the relationship

3. The Sixth Circuit had previously sccognized in McBride v.

Village of Michiana, 100 F.3d 457, 462 (6th Cir. 1996) that the

exercise by government officials of their own free speech rights could

not support a claim for retaliation.

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between the speaker and the retaliator, and the nature of the

retaliatory acts.”’).

Nowhere did the Sixth Circuit require that Mezibov

allege he was “actually chilled” from protected conduct by

Allen’s statements. The court simply determined that

Mezibov’s complaint did not satisfy the objective “person

of ordinary firmness” standard, as tailored to Mezibov’s

specific claim: “With all that in mind, we are not persuaded

that a criminal defense attorney of ordinary firmness would

be deterred from vigorously defending his clients as a

consequence of the alleged defamation in this case.”

Mezibov at 722.

The purpose of the “person of ordinary firmness” test as

applied by the Sixth Circuit is to ensure that the

First Amendment is not “trivialized” by claims based upon

alleged adverse action of less than constitutional proportions.

Mezibov at 721 (citing Thaddeus-X at 397 (quoting Bart v.

Telford, 677 F.2d 622, 625 (7th Cir. 1982))). In evaluating

Mezibov’s claimed injury, juxtaposed with Allen’s allegedly

defamatory comments to the media, the court concluded as

follows:

[T]he substance of Allen’s out-of-court comments

was basically that Mezibov is a bad attorney, that

he is inexperienced, and that he was putting his

own interests before those of his client. To the

extent these comments are not constitutionally

protected in their own right, we do not think they

exact a harm upon Mezibov that would deter an

ordinary criminal defense attorney from

vigorously representing his clients.

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Mezibov at 722-23. This is a rational application of an

accepted rule of law and is consistent with the previous

rulings of other circuit courts.

Contrary to Mezibov’s contention, the decision below

did not convert the objective “person of ordinary firmness”

standard to a subjective one. Rather, it simply applied the

standard in a way that meaningfully distinguishes between

claims that would “trivialize the First Amendment” and

claims involving adverse action of Constitutional

dimensions. Mezibov at 721.

There is no conflict among the circuits as to the proper

standard for determining if “adverse action” has been taken

against a plaintiff for purposes of a First Amendment

retaliation claim. Therefore, the petition for writ of certiorari

should be denied.

CONCLUSION

For the foregoing reasons, respondent respectfully

requests that the Court deny the petition for writ of certiorari.

Respectfully submitted,

LAWRENCE E. BARBIERE

SCHROEDER, MAUNDRELL, BARBIERE

& POWERS

11935 Mason Road, Suite 110

Cincinnati, Ohio 45249

(513) 583-4200

Counsel for Respondents