Hear, Hear!

Now and then, a court opinion is important not for what it may narrowly decide, but for its reaffirmation, albeit in passing, of an important legal principle. An example of a narrow decision is when a court dismisses a lawsuit on “technical” grounds without considering the merits of the case. Last May, a federal appeals court ruled that a plaintiff could not pursue a claim based on mere speculative proof of injury. Some would call it a technicality, but a threshold hurdle in all litigation, particularly in federal courts, is proving actual harm from a defendant's allegedly unlawful conduct.

Call it the judicial equivalent of “no harm, no foul.” Nevertheless, what the court said about a little known aspect of the First Amendment makes this case noteworthy.

Wayne Stephens managed a landfill operated by the Rivanna Solid Waste Authority (RSWA) whose governing body represents Albemarle County and the city of Charlottesville, Va. While at work, he was killed when a cutting torch exploded while he was using it to cut old oil storage tanks for resale as scrap metal.

After Stephens' death, his widow filed suit in federal district court against the local governments and RSWA, claiming that two settlement agreements, signed years earlier by the defendants and local residents, unlawfully forced residents who received payments to relinquish their First Amendment rights to speak freely about the landfill.

As a result, the suit alleged, she and her husband were deprived of their First Amendment right to receive information about possible safety violations that would have saved his life. The district judge had ruled in favor of the defendants, finding that the agreements did not peg the benefits conferred to any surrender of constitutional rights.

However, the three-judge appellate panel, which included retired Supreme Court Justice Sandra Day O'Connor, noted that “the Constitution protects the right to receive information and ideas from a willing speaker.” This recognition calls into question the common practice of muzzling litigants who receive financial settlements.

Here, the local activists and protesters, for their part, agreed to stop opposing the landfill and making private or public adverse comments. Yet, Ms. Stephens could not prevail.

The fatal weakness in her case was her inability to identify a speaker who, but for the gag agreement, was willing to convey the critical information to her. Moreover, her argument that she was a “foreseeable recipient of the banned safety speech” is undercut by “the absence of any indication that [she] ever once was a recipient of such information … during the years when she claims [local protesters] were outspoken,” the opinion stated.

Without providing any factual support, “she leaves us to speculate that, although she did not receive information from [local protesters] in the past … and has not actively sought information from them, something might have changed such that she would now hear from [them] if they could speak freely,” the court added.

[Stephens v. County of Albemarle, No. 07-1478, 4^th Cir., May 9, 2008]

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].

By Barry Shanoff
The columnist is a Rockville, Md., attorney and serves as general counsel of the Solid Waste Association of North America.