Legal Memorandum: Protected First Amendment Rights

Issue: Whether retaliation or harassment is a protected First Amendment right.

Even if the allegations against a defendant could conceivably be construed to amount to "retaliation" or "harassment" undertaken to punish Plaintiff for some exercise of his First Amendment rights, there is no authority that holds Defendant’s alleged conduct in itself violates First Amendment rights.  While not disputative, a key factor militating against a finding that a particular right is "well-established" is the absence of precedent so holding.  See Neu v. Corcoran, 869 F. 2d 662, 665 (2d 1989); Phoenix v. Reddish, 175 F. Supp. 2d 215, 219 (D. Conn. 2001).  In fact, focusing on the specific conduct alleged against defendant, the authority that does exist holds that such conduct does not violate any clearly established constitutional right.  See Paul v. Davis, 424 U.S. 693, 700-01 (1976) (generally, defamatory statements uttered by government officials do not violate any constitutional right).

[…]