Bennie v. Munn, No. 14-3473 (8th Cir. May 11, 2016).
Robert Bennie, a financial advisor in Nebraska, ran a TV commercial offering prospective new customers $100 toward the purchase of a gun. Outside the office, Bennie was active in the Tea Party, denouncing President Obama in the pages of the Lincoln Journal Star as “dishonest,” a “communist,” and “an evil man.”
As a broker-dealer, Bennie was overseen by the state of Nebraska, whose financial regulators decided to talk to Bennie about his recent advertising, as well as the newspaper article featuring his comments. Not long after their chat with Bennie, the regulators warned Bennie’s firm that it might take administrative action.
Bennie then sent out a mass mailing for a seminar on retirement income. The regulators alerted Bennie’s firm, who agreed that the mailing didn’t comply with regulations. The firm later fired Bennie.
Bennie has sued the regulators, asserting that they violated the First Amendment by retaliating against him for his political speech. There’s certainly some evidence suggesting that the regulators didn’t much like Bennie. They didn’t like how he rode around in a horse in one of his commercials. And they didn’t like what one of them described as Bennie’s “quite polarizing” comments about Obama.
Did this dislike stem from Midwestern resistance to flashiness, or from disagreement with Bennie’s politics? The district court, for its part, thought the regulators were motivated by Bennie’s political speech, at least in part.
This case can’t end there, though. A First Amendment retaliation claim also requires the plaintiff to prove that the government’s retaliatory actions would have “chilled” an ordinary person from speaking out. And here, the district court found that the Nebraska regulators’ actions wouldn’t have chilled an ordinary person in Bennie’s position from speaking out against Obama’s communist agenda. And so it returned a judgment for the regulators. A majority of this Eighth Circuit panel concludes that the district court’s factual finding wasn’t clearly erroneous, and thus affirms.