With a federal lawsuit against former state schools Superintendent Steve Paine set for trial March 30, the judge has already determined Paine may well have violated the free speech of a lobbyist while complaining to a national standardized testing company.
The jury will still be asked to determine how lobbyist Jason Webb’s free speech rights were affected when Paine cited his state authority by repeatedly complaining to executives at ACT, which Webb was contracted to represent.
U.S. District Judge John Copenhaver ruled last week that Webb’s criticism of Paine and state education policies were protected — and that there was a direct line to Paine’s retaliation.
What remains for a jury to decide is whether the superintendent’s retaliation actually resulted in chilling Webb’s speech. Or, as the issue is stated in court, “that the defendant’s alleged retaliatory action adversely affected the plaintiff’s constitutionally-protected speech.”
Copenhaver considered whether the actions by Paine and his deputy, Jan Barth, to complain about Webb to his employer, ACT, were meant to be threatening or intimidating — and “whether such a threat would deter a person of ordinary firmness from exercising his First Amendment rights.”
The judge concluded, “Paine’s communications with ACT when taken together, could be fairly construed as a threat of imminent punishment, sanction or coercion against ACT if it failed to discipline or terminate plaintiff.”
But Copenhaver also suggested an observer could reach a different conclusion about the extent of Paine’s actions, saying “these communications are such that a reasonable fact finder could find Paine’s complaints to be mere expressions of frustration.”
So, much of what is left to the jury is reaching a conclusion not only about Paine’s intent but about what happened when he used his authority to push ACT.
In another aspect of the case, the judge ruled in favor of Paine and Barth on a claim that they intentionally damaged Webb’s business relationship with ACT, causing economic harm.
After the lawsuit was filed, ACT ended its contract with the lobbyist for a variety of reasons, including attention to its costs across the country. The judge concluded it’s not clear the superintendent’s actions were the main factor in the contract’s termination.
Finally, a jury would still have to decide aspects of whether Paine and Barth acted conspiratorially, working together in an attempt to silence Webb’s criticisms of the Department of Education.
“We look forward to taking these claims to trial,” said Zak Ritchie, a Charleston lawyer representing Webb.
Paine retired as state superintendent last February, citing family concerns. Webb sued him in the U.S. District Court for the Southern District of West Virginia in June, 2019, following months of conflict.
The lawsuit has its origins in 2017 when West Virginia officials were talking about adopting ACT as its official statewide assessment. That was also the year Paine returned as superintendent.
ACT Aspire wound up losing a bid for 3rd through 8th grade standardized testing Then an 11th grade test was subject to a re-bid and was won by rival SAT.
Webb took out his frustrations publicly on Twitter, criticizing SAT as well as positions taken by the state Department of Education.
Webb contends the superintendent sought to chill his criticism, asking for compilations of the lobbyist’s tweets and confronting leaders of the national testing company. Webb’s lawsuit also names Barth and says she pushed for rival SAT to bring on board a lobbyist who could counter Webb.
Webb says he reacted by toning down his social media comments and by deleting some tweets.
Paine and Barth countered that the Department of Education believed Webb was using his social media accounts for misleading and insulting commentary, particularly about Common Core math. They contended their efforts were to track what was being said and set it straight.
Copenhaver’s ruling weighed Paine and Barth’s claim of tracking Webb’s social media posts to counter them against Webb’s free speech rights.
“Defendants do not explain how their supposed responsibility to correct these social media posts might overcome plaintiff’s First Amendment rights and they present no argument as to why it can be said those First Amendment rights were not clearly established at the time of the injury,” the judge wrote.
While reviewing the case, the judge reviewed elements of coercion. Paine in a 2018 phone call to an ACT executive said Webb was “getting under his skin” and that ACT needed to “handle it or else.”
In a text message the following month, Paine told ACT executives about the compilation of Webb’s social media posts by the Department of Education and complained about Webb’s criticism, calling him a “very shady, dishonest lobbyist.”
Paine told the executives in the text exchange, “as a constitutional officer, I take (personal attacks) very seriously. I suggest you take them seriously as well.”
In another message, Paine said, “I asked you on at least two occasions to work collaboratively with us and hold Webb in check. To date that has not happened.”
Of particular importance, Judge Copenhaver wrote, was a March 5, 2019, call between Paine and ACT’s chief executive officer, Marten Roorda “in which Paine’s comments could reasonably be understood as threats that ACT’s status as a vendor could be impacted by plaintiff’s social media posts and comments made while lobbying.”
Copenhaver noted that the conversation construed to be “a sort of a threat” by the testing company CEO came while ACT was actively working to secure local testing options in West Virginia.
The judge concluded, “Though the threat is not made explicit, a reasonable fact finder could find that these messages were intended to convey the message to ACT that if they did not ‘hold Webb in check’ as Paine demanded, possibly by pressuring Webb to delete posts or by terminating their contract with him, ACT would face adverse administrative consequences.”