In a recent post, I covered statistics of attorneys sanctioned for criticizing judges, about the general trend of retaliation by the government against members of the public for so much as seeking public records, and about my current petition for a writ of certiorari raising the same topic is pending with the U.S. Supreme Court (the U.S. Supreme Court required me to add to the Appendix the decision that I already included into the Appendix, and delayed docketing my petition until I comply. I will comply - I have no choice).
Interestingly, another petition for a writ of certiorari is pending at the same time in the U.S. Supreme Court challenging the use of occupational regulation as a tool of political oppression, and that is the petition by Robert Bennie, a financial advisor who was forced to stop making political comments that he was previously making, in criticism of various public officials, including President Barack Obama, because regulators of his profession applied pressure to his company to silence him, and then fire him.
Robert Bennie filed a civil rights lawsuit claiming 1st Amendment retaliation in 2011. The district court dismissed the case, and the U.S. Court of Appeals for the 8th Circuit affirmed the dismissal, with 2 judges in favor of affirming the dismissal, Chief Judge William J Riley
and Judge Jane Kelly (a prospective nominee to the U.S. Supreme Court instead of the deceased Antonin Scalia, whose nomination failed simply because the judge was a federal public defender in the past)
and one judge, the 86-year-old Judge Clarence Arlen Beam,
most strongly dissenting.
While advanced age of judges may present a problem in clouding their judgment, the dissent of Judge Beam - same as the recent dissent of a 94-year-old judge Damon Keith of the U.S. Court of Appeals for the 6th Circuit on the issue of racism - demonstrated flawless competence and logic.
The push of the majority - judges Riley and Kelly - was that a person of "ordinary firmness" would have persevered and would not have been chilled by the intimidating tactics of the Nebraska Department of Banking and Finance that repeatedly insisted that Robert Bennie's employer regulate and stifle his political speech, criticism of public officials including the U.S. President - or fire him.
Robert Bennie was eventually fired, and stopped his criticism, for fear of his livelihood - after engaging in such criticism for several years.
What the majority is actually saying is that Robert Bennie is a coward - had he been stronger, he would not have stopped his criticism.
And that is a slap in the face not only to Robert Bennie, but to any whistleblower who stopped criticizing the government for fear of losing livelihood for his own benefit and for the benefit of his family and dependents.
So, for the government, 1st Amendment does not exist.
If the government violates it by retaliating - the federal court immediately obliges the government by creating a "test" which is nowhere to be found in the text of the 1st Amendment requiring the victim of government's retaliation to prove that his speech was chilled by the retaliation.
Even though the test itself is completely illegal, Robert Bennie met it by showing that his criticism was actually chilled, he stopped it because he was fired after repeated efforts of the Nebraska Department of Banking and Finance to make his employer regulate his private out-of-office conduct.
Yet, the court now invents another test on top of the previous one - which is also nowhere to be found in the text of the 1st Amendment - that not only the speech must be chilled, but that the government's behavior must be of such nature as to chill political speech of a person of "ordinary resilience".
And, the 8th Circuit's majority claims, Robert Bennie is not such a person - in other words, they say that Robert Bennie is a coward.
Had he been braver, his speech would not have been chilled, even at the cost of losing his license and livelihood.
Yet, in the same breath the majority of the 8th Circuit actually claims that Robert Bennie is BRAVER than the ordinary person - and used his resilience prior to his self-censorship (Bennie started to self-censor after being fired for continuing to engage in political speech outside of his employment) as proof that a person of ordinary firmness would not have been chilled by retaliation directed at Bennie.
And that mentality of the majority met with scathing dissent of Judge Clarence Beam:
As of July of last year, president Obama's report claimed that regulated professions occupied over 25% of the U.S. labor market.
Here is an excerpt from the Executive Summary to President Obama's report:
It is obvious that when the Nebraska state regulator of financial market applied pressure on Robert Bennie employer to regulate Robert Bennie's private political speech, that regulation had nothing to do with the declared purpose of regulation to protect consumers of Robert Bennie's services from dishonest or incompetent providers of financial advice, because Robert Bennie's political speech had nothing to do with his work, and his competence or integrity as a financial advisor had nothing to do with his political beliefs, spoken or unspoken.
Thus, at least every fourth worker (every third, by other estimates - 7 years earlier 29% of workers in the U.S. were reportedly covered with occupational licensing) in the United States may be affected with a threat of having his livelihood yanked in retaliation for political speech. In this case the speech in question was criticism of President Obama himself.
Using occupational licensing as a machine of political oppression and stifling of political speech is being increasingly used in the United States, and has become an issue of grave public concern.
Judge Beam, in his dissent, appreciated the importance of this issue.
I wonder whether the U.S. Supreme Court will consider the case of Robert Bennie worth of its precious time.
This is what caused the ire of the State to descend upon Robert Bennie, his statement comparing himself and President Obama and reportedly saying:
"I'm a freedom-loving American and he's a communist. I'm an honest man and he's dishonest. He didn't tell us all of what he's going to do. I believe he's an evil man".
To that political statement of opinion the Director of Nebraska State Department of Banking and Finance reportedly answered with an e-mail to his subordinates:
"Bob Bennie is always seen wearing a cowboy hat, so I say 'Hang Him High'".
And they did.
Occupational licensing was introduced stealthily, without requests of consumers, and without evidence-based investigation of whether regulation is needed and whether the regulation is helping to actually protect consumers.
Instead, occupational regulation is increasingly used for purposes completely unrelated with the declared purpose of regulation - instead of protecting consumers, it is used to squash the livelihood of critics of the government.
Let's remember - the government is OUR SERVANTS.
And the government is hired to do their job - within the limits of the law.
The government has no right to "Hang Us High" for criticizing it.
We need to make sure those in the government who want to use their authority unlawfully are subject to effective measures of accountability.
I will continue to monitor this story and report on it.
Stay tuned.
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