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"The first thing we do, let's kill all the lawyers," says Dick the Butcher in Shakespeare's Henry VI Part 2. The famous quote conveys the idea that if you want to maintain power by suppressing the people, then lawyers are your enemy. The powers that be in Puerto Rico have that same idea, and they are now engaged in a sophisticated legal assault on Puerto Rico's bar association, called the Colegio de Abogados de Puerto Rico.

The Colegio has long been outspoken on matters of Free Speech in Puerto Rico. Recently, Puerto Rican police assaulted peaceful student protesters with pepper spray and clubs. Protests are now banned, and the student leaders are arrested. As Colegio members challenge these assaults on the First Amendment, the Puerto Rican legislature closed its proceedings from the public.

The latest legal assault on the Colegio claims to be about life insurance. From 1932 to 2006, Puerto Rican law required the Colegio to provide insurance to its members. Notwithstanding the law, a group of adversaries of the Colegio brought a class action lawsuit against the life insurance program. This lawsuit is assigned to Judge José A. Fusté, a federal judge with close political ties to the ruling party and a personal history of opposing the Puerto Rico bar association. After finding that the life insurance program was illegal, he converted the lawsuit to a class action for damages, and forbade the Colegio from telling its members how they could opt out. The First Circuit reversed that order, but Judge Fusté has nevertheless held the Colegio's president, Osvaldo Toledo, in contempt and sent him to jail. Toledo's offense is that he communicated with the Colegio's members about how they could opt out of the lawsuit. U.S. Representative Luis Gutierrez made a speech on the House floor last month that details the shocking suppression of Free Speech in Puerto Rico. Follow this link to read for yourself the opt-out instructions that landed Toledo in jail.

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In Connick v. Myers, 461 U.S. 138 (1983), the Supreme Court held that the First Amendment's Free Speech Clause would protect public employees from retaliation only if the employee's speech touched on a matter of "public concern." That is, government officials were free to retaliate against employees for raising matters of private concern, but not for matters of public concern. Myself, I don't see this requirement when I read the First Amendment, but then I remember that the Constitution is a living document that can grow beyond the original intent of the Founders.

While much whistleblowing does raise matters of public concern, the Connick requirement remains on the books as a vehicle for hostile judges who want to steer a retaliation case over the cliff. Now the Third Circuit has pointed to a way around Connick:  the Petition Clause. Recall that the First Amendment prohibits legislators from abridging freedom of speech, or the right "to petition government for redress of grievances." This "Petition Clause" is concerned not so much with the content of what people say in their petitions, but rather with the process of assuring that all people are free to submit petitions for the redress of grievances.  This is the rule that prohibits government from punishing Oliver for asking for more gruel.

That is what Charles Guarnieri did when the Borough of Duryea, Pennsylvania, fired him as police chief.  Guarnieri filed a grievance under his union contract. The arbitrator found that the Borough Council had fired him in retaliation for refusing to speak to the Mayor on the Council's behalf, and ordered that he be reinstated with back pay. The Borough Council became upset and passed a set of ordinances that prohibited the police chief from working overtime, and made him personally liable for any overtime worked by the other officers. A federal court jury awarded him $45,358 in compensatory damages, and ordered the council members to pay $52,000 in punitive damages. The Third Circuit Court of Appeals affirmed the award of compensatory damages. The Court held that under the Petition Clause, there is no requirement that the petition relate to a matter of public concern.  The Court also held that punitive damages should not be awarded because the evidence did not show any animus greater than the animus of retaliation (concluding that such retaliation is not enough to show "reckless or callous indifference" to the federally protected rights of others). The Third Circuit also held that Guarnieri's attorneys should be paid for all the hours spent on this case.

Now the Borough has appealed to the U.S. Supreme Court. My hero, Eric Schnapper of the University of Washington School of Law in Seattle, has written an outstanding brief urging the Supreme Court to decline the case. I urge anyone who cares about free speech and the right of petition to read his brief. The case awaits the decision of the Supreme Court.

UPDATE: On October 12, 2010, the U.S. Supreme Court agreed to accept the appeal of the Borough of Duryea, Pennsylvania.

UPDATE: On March 22, 2011, the Supreme Court conducted oral argument in Borough of Duryea v. Guarnieri. Guarnieri's attorney, Eric Schnapper, brilliantly explained how the Petition Clause was clearly meant to cover petitions over private claims that involve no issues of public concern. From my read of the transcript, I foresee that the Supreme Court will reject the Borough's claim that the Petition Clause is governed by the same public concern requirement as the Free Speech Clause.

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