Benoir v. Town of Parksley Brief: Governments Cannot Use Pretextual Reasons to Silence Critics
In this case, a family in Parksley, Virginia, ran into an onslaught of opposition to their food truck from their local government. This resulted in an October 2023 ordinance specifically banning food trucks. But in enacting this ordinance, the town committed to the plaintiffs that they could continue to operate their food truck until May 2024, when their business license expired.
Plaintiffs then dared to complain about the food-truck ban to the press. The mayor saw this as a “betrayal” and became “angry … for the media attention that depicted Parksley’s government in a negative light.” In direct response to plaintiffs’ protected speech, the mayor instructed the town attorney to renege on the town’s commitment and send plaintiffs a cease-and-desist letter requiring them to immediately shut down their business. As the town attorney was drafting the letter, he stumbled across a previously unknown catch-all zoning ordinance that prohibited anything not expressly permitted (including food trucks).
On this fact alone, the district court denied plaintiffs’ First Amendment retaliation claim. Even though plaintiffs were engaged in protected speech, even though the town “intended to punish them for their protected speech, and indeed prepared to do so,” and even though the town only discovered the second ordinance after making that decision, the district court concluded that plaintiffs could not establish causation because the ordinance authorized the government action.
This fundamentally misunderstood First Amendment retaliation case law, which requires a court to discern why the government took the adverse action. It does not permit the government to evade scrutiny by showing that its actions were otherwise authorized under local law or hide behind pretext.
Cato filed an amicus brief arguing that the Fourth Circuit should reverse the district court’s decision, which, if allowed to stand, will quash many legitimate retaliation claims, encourage government mischief, and threaten the “great bulwark of liberty” that is freedom of speech.