Even federal agencies use independent contractors and skirt the protections provided to "employees." This month, a federal judge in Washington, DC, held that a former translator can sue the Voice of America officials who terminated her contract after she made an anti-war music video. Using the authority of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), Judge Ellen Segal Huvelle has ordered that Melodi Navab-Safavi can proceed with her lawsuit against the Broadcasting Board of Governors (BBG) and its officials. Judge Huvelle noted that Navab-Safavi made the video on her own time, without using any government resources.“[T]he law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions . . . for speaking out.”
Judge Huvelle adds, “public employees do not surrender all their First Amendment rights by reason of their employment.” She also held that music and internet postings have First Amendment protection, and that such protection applies to contractors as wells as employees.
Navab-Safavi worked for the Voice of America Persian Service as a translator. She worked with a pop band called Abjeez whose other members live in Sweden. Abjeez is banned in Iran. It makes songs and videos about women's rights and other social problems in Iran. As part of Abjeez, Navab-Safari made and appeared in a video called, "DemoKracy." It protests U.S. involvement in Iraq and portrays coffins of Iraqi civilians and Americans. Navab-Safavi alleges that one of the defendants told her that her video had become, "a disproportionate problem" for her because she was "an Iranian." Judge Huvelle concluded this was sufficient evidence of an unlawful motive to retaliate.
To apply Bivens, Judge Huvelle had to find that no alternative legal means provided the plaintiff with relief. Judge Huvelle held that Navab-Safavi could not obtain damages for the retaliation she suffered through the Contract Disputes Act (as her claim was not for breach of the contract, but rather for retaliatory termination) or the Administrative Procedures Act (no provision for damages).
Rick Salzman and Carolyn Lerner of Heller, Huron, Chertkof, Lerner, Simon & Salzman represent Melodi Navab-Safavi. Congratulations to them all for this significant First Amendment victory.