SUAREZ CORPORATION INDUSTRIES; Emerson Sonny Clopper; Patricia Clopper; Elizabeth Pishner, Plaintiffs-Appellees, v. Darrell V. McGRAW, Jr., Attorney General of the State of West Virginia, in his official capacity; Thomas Rodd, individually, Defendants-Appellants, and John Doe, I-III, individually, Defendants, Thomas Tinder, Party in Interest.
No. 98-2696
United States Court of Appeals, Fourth Circuit
Decided: Feb. 2, 2000
202 F.3d 676
Argued: Oct. 26, 1999
the detainee was in custody. Neither case had anything to do with the issue presented here, viz., whether due process was violated because the DEA, instead of mailing the forfeiture notices directly to McGlory‘s place of confinement, mailed them to the Marshals Service, and the Marshals Service, if it followed its standard practice, then forwarded them to McGlory.
3. Rather, the main thrust of McGlory‘s argument, like the majority‘s analysis, focuses on the conduct of the DEA, and he contends that the DEA‘s actions—mailing the notices to the Marshals Service—were constitutionally inadequate.
Before LUTTIG and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Vacated and remanded by published opinion. Senior Judge Hamilton wrote the opinion, in which Judge Luttig and Judge Motz joined.
OPINION
HAMILTON, Senior Circuit Judge:
Darrell V. McGraw (McGraw), the Attorney General of West Virginia, and Thomas Rodd (Rodd), a former West Virginia Deputy Attorney General, appeal
I.
SCI, an Ohio corporation, markets a variety of consumer goods, under various trade names, through direct mail marketing that invites potential customers to participate in sweepstakes or other promotions. Prior to September 1994, SCI, under the trade name Lindenwold Fine Jewelers (Lindenwold), conducted business in West Virginia by soliciting mail orders for its products. Three of these solicitations are relevant to this case: (1) a “free” 1-carat Lindenwold cubic zirconium diamond simulant, already set in a mounting, for which the consumer must pay $19 for the mounting and an enhanced opportunity to win $10,000 (the CZ solicitation); (2) a cash prize of “as much as” $1000 contained in a clutch purse ensemble, for which the consumer must pay $12, plus $2 shipping and handling (the clutch purse solicitation); and (3) leaded crystal candlesticks, for which the consumer must pay $19 in order to receive the candlesticks, a free glass heart-shaped dish, and an enhanced opportunity to win a $1000 cash prize (the candlesticks solicitation).
The CZ solicitation notified consumers that they had won a 1-carat Lindenwold cubic zirconium diamond simulant, and further that they were eligible to win an additional $10,000 prize. The “free” cubic zirconium diamond simulant, however, was already mounted in a ring or necklace that consumers could purchase for $19. The solicitation informed consumers that their opportunity for winning the $10,000 was enhanced if the mounting was purchased. If consumers only wanted the “free” simulant, they had to affix a label from one form to another form, handwrite a “code number” on the new form, then fill out a release form, and return it to SCI in a #10 white envelope. Failure to properly follow these procedures resulted in the forfeiture of the simulant and eligibility to win the $10,000. If consumers were willing to pay the $19 for the mounting, to claim their simulant and be eligible for the enhanced prize, they only needed to complete a simple form and return it to SCI in a self-addressed envelope. Anytime consumers attempted to claim just the simulant, SCI would send a follow-up solicitation informing them that unless they purchased the mounting, their file would be closed. The language of the follow-up solicitation intimated that if a consumer‘s file was closed, the consumer would no longer be eligible for the $10,000 prize.
The clutch purse solicitation notified consumers that they had won a cash prize of “as much as $1000.” The cash prize was contained in a five piece clutch purse ensemble that consumers could purchase for $12, plus $2 for special packaging, shipping, and insurance. For 99.5% of the time, the cash prize was $1. Although consumers were informed that they need not purchase the ensemble to claim their prize, SCI claimed that because it would have to remove the prize from the purses, those who ordered the ensemble would receive priority handling. Moreover, to claim the cash prize without ordering the ensemble, consumers were required to: (1) cut out the prize confirmation bar code from the order form; (2) paste it onto a 3-1/2” x 5-1/2” index card furnished by the consumers; (3) write their name, address, and phone number on the index card; and (4) return it in a #10 white envelope. If the consumers failed to follow these procedures, they forfeited the cash prize. In
Finally, the candlesticks solicitation offered consumers a pair of leaded crystal candlesticks for $19, plus a bonus glass heart-shaped dish at no additional cost. All consumers receiving the solicitation were eligible to win a $1000 cash prize, but purchasers of the candlesticks received priority handling and “immediate security processing.” The text of the solicitation led consumers to believe that their chances of winning the $1000 were enhanced if they purchased the candlesticks. Consumers who did not want to purchase the candlesticks, but who wanted to remain eligible for the $1000, were required to print their name, address, and customer number onto a 3-1/2” x 5-1/2” index card and return it, along with the envelope provided by SCI for those who did choose to purchase the candlesticks, in a second envelope.
Based on solicitations analogous to SCI‘s, in January 1994, the West Virginia Attorney General‘s office (the AG‘s office) initiated an action in the Circuit Court of Kanawha County, West Virginia, against four direct marketing companies alleging violations of the state‘s Consumer Credit and Protection Act,
At the same time, the AG‘s office applied for a preliminary injunction against all of the defendants. The state circuit judge granted the motion to join the additional defendants but instructed the AG‘s office to select a representative number of defendants against whom it wished to proceed. Thereafter, the AG‘s office notified the state circuit court that it would proceed only against SCI.2
Following the initiation of the state court litigation, SCI and the AG‘s office had a number of less than congenial confrontations. SCI claims that, in August 1994 it met with Rodd, who was then the West Virginia Deputy Attorney General assigned to the Consumer Protection Division, about a possible settlement, but that Rodd responded by “launch[ing] into a tirade that was not factually substantive,” and “calling Lindenwold a bunch of crooks.” (J.A. 113). Rodd allegedly stated that it would “become his mission to ‘cause as much pain, damage and injury as possible to SCI,‘” unless SCI voluntarily withdrew its direct marketing business from the State of West Virginia. Id. Rodd testified in a deposition that he gave SCI the choice of “[a]gree[ing] to a temporary injunction or [the AG‘s office would] go forward and seek to inflict the maximum degree of penalty.” (J.A. 84 n. 7).3 SCI‘s response to this meeting was to file a complaint with the Better Government Bureau (BGB), which in turn filed a Freedom of Information Act request with the AG‘s office.4
In late August 1994, a number of newspaper articles were published in which members of the AG‘s office accused SCI/Lindenwold of cheating West Virginia residents out of their money. There is also an indication that, at approximately the same time these articles were published, the AG‘s office had received information from the Washington State Attorney General‘s Office that SCI‘s modus operandi for fighting state investigations was to engage in an extensive media campaign criticizing public officials. Based on this information, the West Virginia Managing Deputy Attorney General, Fran Hughes, informed both McGraw and Rodd about her concerns with respect to the beginnings of an SCI media campaign.
On September 2, 1994, SCI published a two-page ad in The Charleston Gazette newspaper. The ad was in the form of a letter from Lindenwold employees to McGraw and Rodd, which read, in part, “DO NOT PLAY POLITICS WITH OUR LIVELIHOOD OR THE RIGHTS OF OUR 20,000 SATISFIED CUSTOMERS IN THE STATE OF WEST VIRGINIA.” (SCI‘s Response to Motion for Summary Judgment Exhibit A-1). The employees proceeded to criticize McGraw for his prosecution of the lawsuit against SCI and demanded “to know why [McGraw and Rodd] are wasting taxpayer‘s dollars when we have managed our business so responsibly, yet real crimes such as drug trafficking, rape and assaults are left unprosecuted by you as West Virginia‘s top law enforcement officers.”5 Id. (emphasis in original).
On September 9, 1994, the state circuit court ruled that there were reasonable grounds to believe that SCI‘s solicitation activities were illegal, misleading, deceptive, fraudulent, and unconscionable. The state circuit court then issued a preliminary injunction enjoining a number of SCI‘s marketing schemes.6
Following the September 9, 1994 hearing, a number of press accounts appeared in the media quoting Rodd as saying “I think people are tired of the elderly being victimized like this” and “Attorney General McGraw is not going to be intimidated or bullied.” (J.A. 118 (quoting Court Bans Ohio Firm, Cites “Scam“, Parkersburg Centinel, September 8, 1994)). Also during September 1994, McGraw sent a communication to other state attorneys general claiming that SCI had “been sued by the United States Postal Service for mail fraud.” Id. According to SCI, the United States Postal Service proceedings did not
In a letter sent by McGraw to the state attorneys general on October 6, 1994, McGraw stated that “it has been reported to me that in the course of [a state circuit court‘s] hearing (newspaper report attached hereto) that [SCI‘s lawyer] threatened violence upon Deputy Attorney General Rodd.” (J.A. 119). McGraw went on to warn that “there is a possibility that [SCI‘s] modus operandi might include a proclivity to violence.” Id.
Also, in the fall of 1994, Michael Paris, the new president of the Better Business Bureau/Canton Regional, Inc. (the BBB), was seeking to expand the role of the BBB in West Virginia.8 He contacted Rodd to facilitate the expansion but Rodd responded, in essence, that the West Virginia AG‘s office would “have a hard time sort of respecting the integrity of your Better Business Bureau” if the BBB was going to tolerate the conduct of SCI, one of its members. (J.A. 89). SCI alleges that Rodd went further, “advising [BBB‘s] representatives that the AG would offer no assistance to BBB in its expansion plans in West Virginia for so long as SCI remained a member of BBB.” (J.A. 49).
On October 11, 1994, Paris convened a special executive committee meeting of the BBB. In the meeting, the executive committee members discussed SCI‘s history with the BBB, current litigation against SCI, as well as Rodd‘s alleged comment that “if [SCI] is a member of the Bureau, they have lost all credibility in the Better Business Bureau.” (J.A. 76). Paris conceded that this was typical of other comments received from across the country. Four months later, on February 16, 1995, the BBB expelled SCI but later reinstated it as a result of a lawsuit filed by SCI against the BBB.
In 1995, Dun & Bradstreet issued a report on SCI. The report, in part, was based on information provided by the AG‘s office on January 10, 1995. According to Dun & Bradstreet, the information stated that the United States Postal Service had issued a temporary restraining order against SCI and that mail returns “will be seized pending the outcome of 6 counts of mail fraud filed against the company by certain states in conjunction with the U.S. Postal Service.” (SCI‘s Resp. Mot. Summ. J. Ex. B-2, at 6). The report went on to state that SCI “subsequently declared mailings void” in several states.9 Id. Finally, the report also mentioned that: (1) the BBB had reported that numerous complaints had been filed against SCI, but that most had been resolved; and (2) the “U.S. Postal Service indicated it has filed two civil false representation suits against [SCI].” Id.
In addition to the above incidents, McGraw and Rodd are alleged to have repeatedly defamed SCI in the press and to other state attorneys general. These alleged defamatory statements included assertions that SCI: (1) “preys on the elderly, infirmed and incapacitated,” Josef Federman, Suarez Corp. Files Lawsuit vs. West Virginia Attorney General, Canton Repository, April 6, 1995 (attached as Ex. C-38 to SCI‘s Resp. Mot. Summ. J.); (2) “is a gambling syndicate from Ohio that also sells jewelry,” (SCI‘s Resp. Mot. Summ. J. Ex. B-3 (fax from the Charleston Daily Mail quoting McGraw)); (3) “representatives ... have ‘a documented
On April 4, 1995, SCI, Emerson Clopper, Patricia Clopper, and Elizabeth Pishner brought this action against McGraw and Rodd in the United States District Court for the Southern District of West Virginia.11 On August 28, 1995, the plaintiffs filed an amended complaint containing nine counts. Counts one, two, three, and six were brought pursuant to
The remaining claims of the amended complaint were brought pursuant to West Virginia state law. In count four, SCI sought money damages based on McGraw and Rodd‘s alleged defamatory statements. In count five, SCI sought money damages based on McGraw and Rodd‘s alleged intentional interference with SCI‘s contractual relations. In count seven, the Cloppers and Pishner sought injunctive relief based on an alleged deprivation of their state constitutional right to receive communications. In count eight, SCI sought money damages based on McGraw and Rodd‘s alleged interference with SCI‘s prospective contractual relations. In count nine, SCI sought money damages on the basis that McGraw and Rodd‘s actions constituted a prima facie tort.
On September 21, 1995, McGraw and Rodd moved to dismiss the amended complaint based, in part, on the ground of absolute immunity. On November 16, 1995, the district court denied McGraw and Rodd‘s motion to dismiss. From this decision, McGraw and Rodd filed an interlocutory appeal in this court.
On appeal, in addition to raising a claim of absolute immunity, for the first time, McGraw and Rodd argued that the plaintiffs’ claims were barred by the Eleventh Amendment and/or principles of qualified immunity. On September 11, 1997, this court affirmed in part, reversed in part, vacated in part, and remanded in part. See Suarez Corp. Indus. v. McGraw, 125 F.3d 222, 230-31 (4th Cir. 1997). With respect to count seven, we reversed the district court‘s decision, concluding that count seven was barred on its face by the Eleventh Amendment.12 See
On remand, McGraw and Rodd moved for summary judgment and briefed the Rooker-Feldman issue, while also presenting the defense of qualified immunity to the district court. The district court ruled on the motion for summary judgment and issued an order on November 11, 1998. With respect to counts one, two, and six, the district court held that these counts were barred by the Rooker-Feldman doctrine. With respect to counts five and eight, the district court held that these counts failed to state a claim and were also barred by the Rooker-Feldman doctrine. With respect to count nine, the district court dismissed this count for failure to state a claim. With respect to counts three and four, the district court held that genuine issues of material fact precluded the grant of summary judgment.
In addressing McGraw and Rodd‘s defense of qualified immunity as to count three, the district court held that the facts as alleged by SCI were sufficient to demonstrate that McGraw and Rodd retaliated against SCI for exercising its First Amendment right to free speech. The district court also concluded that the right to be free from retaliation for exercising one‘s First Amendment right to free speech was clearly established at the time of McGraw and Rodd‘s alleged misconduct.
After the district court denied their defense of qualified immunity, McGraw and Rodd filed a notice of appeal on that issue. The district court then granted McGraw and Rodd‘s motion to stay its proceedings pending the appeal on the issue of qualified immunity.
II.
“The district court‘s denial of a claim of qualified immunity, to the extent it turns on an issue of law, is an appealable ‘final decision’ within the meaning of
“To avoid ‘excessive disruption of government,’ a qualified immunity is recognized to protect government officials performing discretionary functions from civil damage suits ‘insofar as [the officials‘] conduct does not violate clearly established rights of which a reasonable person would have known.‘” Porterfield v. Lott, 156 F.3d 563, 567 (4th Cir.1998) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The United States Supreme Court recently set forth a two-prong test for evaluating a claim of qualified immunity. See Wilson v. Layne, 526 U.S. 603, 609 (1999). A court “‘must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all.‘” Id. (quoting Conn v. Gabbert, 526 U.S. 286, 290 (1999)). If so, the court then proceeds to “‘determine whether that right was clearly established at the time of the alleged violation.‘” Id. (quoting Conn). The Wilson Court reasoned that this test would “spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.” Id. (quoting Siegert v. Gilley, 500 U.S. 226, 232 (1991)). “Deciding the constitutional question before addressing the qualified immunity question also promotes clarity in the legal standards for official conduct, to the benefit of both the officers and the general public.” Id.
The first prong under Wilson requires that we determine whether SCI “alleged the deprivation of an actual constitutional right.” Id. (internal quotation marks omitted). SCI alleges McGraw and Rodd deprived it of its First Amendment right to free speech when they engaged in various acts of retaliation in response to SCI‘s initial exercise of its right to free speech. To analyze whether SCI alleged the actual deprivation of a constitutional right, the obvious place to begin is with the constitutional right at issue—the First Amendment right to freedom of speech.
The First Amendment provides that “Congress shall make no law ... abridging the freedom of speech.”
However, not every reaction made in response to an individual‘s exercise of his First Amendment right to free speech is actionable retaliation. See DiMeglio v. Haines, 45 F.3d 790, 806 (4th Cir.1995) (“Not every restriction is sufficient to chill the exercise of First Amendment rights, nor is every restriction actionable, even if retaliatory.“). Rather, a § 1983 retaliation plaintiff must demonstrate that the defendant‘s actions had some adverse impact on the exercise of the plaintiff‘s constitutional rights. See Wicomico County, 999 F.2d at 785 (“In order to state a retaliation claim, Appellees are required to show that WCDC‘s actions adversely impacted these First Amendment rights.“).
In light of these principles, a § 1983 retaliation plaintiff must establish
In this case, the parties do not dispute the fact that SCI‘s advertisements criticizing McGraw and Rodd were speech protected by the First Amendment. The parties’ dispute centers on whether McGraw and Rodd‘s conduct adversely affected SCI‘s constitutionally protected speech and, if so, whether that conduct was causally connected to SCI‘s speech.
B.
Determining whether a plaintiff‘s First Amendment rights were adversely affected by retaliatory conduct is a fact intensive inquiry that focuses on the status of the speaker, the status of the retaliator, the relationship between the speaker and the retaliator, and the nature of the retaliatory acts. See Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th Cir.1999) (“[T]he definition of adverse action is not static across contexts.“). For example, in the public employment context, the speaker is the employee and the retaliator is the public employer. The employment relationship between the speaker and retaliator creates competing interests between “the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the [government], as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568. To properly balance these interests, courts have required that the nature of the retaliatory acts committed by a public employer be more than de minimis or trivial. See Sharp v. City of Houston, 164 F.3d 923, 933 (5th Cir.1999); Nunez v. City of Los Angeles, 147 F.3d 867, 875 (9th Cir. 1998); DiMeglio, 45 F.3d at 806. Thus, a public employer adversely affects an employee‘s First Amendment rights when it refuses to rehire an employee because of the exercise of those rights, see Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285-87 (1977); or when it makes decisions, which relate to “promotion, transfer, recall, and hiring,” based on the exercise of an employee‘s First Amendment rights, Rutan v. Republican Party, 497 U.S. 62, 79 (1990). On the other hand, courts have declined to find that an employer‘s actions have adversely affected an employee‘s exercise of his First Amendment rights where the employer‘s alleged retaliatory acts were criticism, false accusations, or verbal reprimands. See Benningfield v. City of Houston, 157 F.3d 369, 376-77 (5th Cir.1998) (holding that employees “falsely accused” of criminal wrongdoing and “verbally reprimanded” by their employer failed to allege adverse employment actions sufficient to constitute retaliation), cert. denied,
Just as the nature of the retaliatory acts impacts whether a public employee‘s First Amendment rights were adversely affected, so too the nature of the retaliatory acts impacts whether those acts are actionable when a private citizen is the speaker and a public official is the retaliator. For example, a public official who
The nature of the alleged retaliatory acts has particular significance where the public official‘s acts are in the form of speech. Not only is there an interest in having public officials fulfill their duties, a public official‘s own First Amendment speech rights are implicated. Thus, where a public official‘s alleged retaliation is in the nature of speech, in the absence of a threat, coercion, or intimidation intimating that punishment, sanction, or adverse regulatory action will imminently follow, such speech does not adversely affect a citizen‘s First Amendment rights, even if defamatory.13 See X-Men Sec., Inc. v. Pataki, 196 F.3d 56 (2d Cir. 1999) (holding
In this case, SCI, the private citizen, alleges that McGraw and Rodd, public officials who were in the process of suing SCI for violations of West Virginia law, retaliated against SCI by: (1) making alleged defamatory statements to the media and to other attorneys general; (2) making truthful statements to the BBB; and (3) making defamatory statements to Dun & Bradstreet.15 McGraw and Rodd‘s alleged retaliatory acts are in the nature of speech. Therefore, the interests in conflict are SCI‘s First Amendment right to speech versus McGraw and Rodd‘s First Amendment speech rights, as well as their duty to keep the public and other law enforcement officials informed about consumer fraud and their ongoing investigation and prosecution of SCI. Because none of McGraw and Rodd‘s statements concerned private information about an individual, we find that the appropriate inquiry to determine whether McGraw and Rodd adversely affected SCI‘s First Amendment speech rights to be whether their speech was threatening, coercive, or intimidating so as to intimate that punishment, sanction, or adverse regulatory action will imminently follow. See X-Men Sec., 196 F.3d 56; Penthouse Int‘l, 939 F.2d at 1016; Hammerhead Enters., 707 F.2d at 39.
A.
SCI claims that the following alleged defamatory statements to the media constituted actionable retaliation: (1) Rodd‘s statement saying, “I think people are tired of the elderly being victimized like this” and “Attorney General McGraw is not going to be intimidated or bullied” (J.A. 118); (2) McGraw and Rodd‘s assertions that SCI “preys on the elderly, infirmed and incapacitated,” Federman, supra; (3) McGraw‘s assertion that SCI “is a gambling syndicate from Ohio that also sells jewelry,” (SCI‘s Resp. Mot. Summ. J. Ex. B-3); (4) McGraw‘s statement that “representatives [of SCI] have ‘a documented proclivity to violence,‘” id.; and (5) the AG‘s office‘s assertion that SCI has “link[s] to organized crime” (SCI‘s Resp. Mot. Summ. J. Ex. A-9). In addition, SCI claims that McGraw retaliated against it when he made statements to other attorneys general claiming that SCI had “been sued by the United States Postal Service for mail fraud,” and stating that “it has been reported to me that in the course of the hearing ... that [SCI‘s lawyer] threatened violence upon Deputy Attorney General Rodd,” and that “there is a possibility that [SCI‘s] modus operandi might include a proclivity to violence.” (J.A. 119).
With respect to these alleged defamatory statements, SCI has failed to show that McGraw and Rodd‘s statements can reasonably be interpreted as intimating that McGraw and Rodd would punish, sanction, or take an adverse action against SCI. None of the statements even imply that McGraw and Rodd would utilize their governmental power to silence SCI. Thus, SCI has failed to show that McGraw and Rodd‘s alleged defamatory statements to the media and other attorneys general adversely affected its First Amendment rights. McGraw and Rodd‘s communications to the other attorneys general did provide warnings about the type of conduct SCI allegedly engaged in when sued, but did not encourage any action that caused adversity to SCI.
B.
SCI contends that Rodd‘s statements to the BBB‘s president, Mr. Paris, constituted actionable retaliation because the BBB later expelled SCI. The only evidence in the record that describes Rodd‘s conversation with Paris is Rodd‘s deposition. In his deposition, Rodd states:
I inquired if he knew anything about a Canton, Ohio company called Lindenwold Fine Jewelers. And I think he said yes, he did. And I said, are they a member of the Better Business Bureau or is there a relationship there. And he said yes, they are. And I said, you know, we welcome the opportunity to work with Better Business Bureaus all the time, but we are going to have a hard time sort of respecting the integrity of your Better Business Bureau.... If this is what the Better Business Bureau, the kind of conduct it allows by its members, then we just don‘t have a lot of respect for that. So that ... is going to reflect upon what we think about you and if we have any future contacts or relationships.
(J.A. 119). After this discussion with Rodd, Paris convened a special executive committee meeting of the BBB. The minutes of the meeting indicate that Paris began the meeting by giving some historical background of SCI, including that: (1) “[t]here were problems during the first years they were with the Bureau“; (2) in June 1980, SCI was dropped from the membership roster for not following the membership standards but was reinstated in 1982; (3) legal actions were brought “against the company in 1991, 1992, 1993, and 1994“; (4) there was a civil suit pending in West Virginia at the time of the meeting; and (5) United States postal authorities had recently found mail fraud in one of SCI‘s promotions.16 (J.A. 76). The meeting‘s notes indicate that Paris stated that Rodd commented that “if [SCI] is a member of the Bureau, they have lost all credibility in the Better Business Bureau.’ They will not do anything at all to help us in membership if this is
Rodd‘s statements to the BBB, which SCI apparently concedes are true and which arguably led to the BBB‘s subsequent expulsion of SCI from its membership, do not evidence that McGraw and Rodd adversely affected SCI‘s First Amendment rights. Nothing in Rodd‘s testimony can reasonably be interpreted as intimating that McGraw and Rodd would punish or take an adverse action against SCI or the BBB.17
Indeed, the BBB itself did not feel threatened by Rodd‘s comments; rather, it interpreted his comments as a refusal to “do anything at all to help us in membership if this is the kind of members we accept.” (J.A. 76). Absent a direct or implied threat or coercive language, Rodd‘s statements are speech that did not adversely affect SCI‘s First Amendment rights, but which allowed the BBB to determine its own course of action.
C.
The final act of actionable retaliation SCI claims is that McGraw and Rodd retaliated against it by making defamatory statements to Dun & Bradstreet. Specifically, SCI claims that Rodd stated to Dun & Bradstreet that: (1) the United States Postal Service had issued a temporary restraining order against SCI and that mail returns “will be seized pending the outcome of 6 counts of mail fraud“; and (2) that SCI “subsequently declared mailings void” in several states. (SCI‘s Resp. Mot. Summ. J. Ex. B-2, at 6). SCI argues that these statements were defamatory and constituted retaliation. Moreover, because Dun & Bradstreet included these alleged defamatory remarks in its “Business Information Report,” SCI asserts that its credit history was adversely affected. Even if we assume those statements were defamatory, SCI‘s arguments are without merit.
The major flaw in SCI‘s claim is that SCI has not submitted any evidence that the statements to Dun & Bradstreet can reasonably be interpreted as intimating that McGraw and Rodd would punish, sanction, or take adverse action against SCI. The only evidence in the record reflects that Dun & Bradstreet solicited information from the AG‘s office and Rodd responded. Dun & Bradstreet then reported in its Business Information Report the information Rodd provided. None of the alleged defamatory language, however, implies a threat to SCI.18
For the reasons stated herein, we vacate that portion of the district court‘s order appealed from and remand for further proceedings consistent with this opinion.19
VACATED AND REMANDED