Support HB 95: Stop SLAPP Suits in Pennsylvania!

Support HB 95: Stop SLAPP Suits in Pennsylvania!

Chief Sponsor, State Rep. Russ Diamond (Home Page)

Saturday, January 23, 2021

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PA Constitution. Art. II, § 11; Powers of each house; expulsion:
"Each House shall have power to determine the rules of its proceedings and punish its members or other persons for contempt or disorderly behavior in its presence, to enforce obedience to its process, to protect its members against violence or offers of bribes or private solicitation, and, with the concurrence of two-thirds, to expel a member, but not a second time for the same cause, and shall have all other powers necessary for the Legislature of a free State.  A member expelled for corruption shall not thereafter be eligible to either House, and punishment for contempt or disorderly behavior shall not bar an indictment for the same offense."


I am not a lawyer and do not give legal advice. A citizen seeking legal advice should consult with a lawyer. My thoughts and opinions, expressed on all pages on this website, are just that i.e. my thoughts and opinions.

In the video where Sims was berating the "old white lady" he made the point that he had the same First Amendment rights that she did. Generically, I agree. "[There exists a] profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." New York Times Co. v. Sullivan, 376 U.S. 254 (1964). But he misses something in his thinking. I don't think his potential civil liability exists merely because of his speech. I think he has exposure because of the retaliatory nature of his speech when combined with his public official status. In the video with the "old white lady" he states his motivations in words like "this is what they deserve and this is what they need."  Sims was not merely 'counter-speaking'. He was retaliating.


ROUND ONE: First Amendment Retaliation Lawsuits Against Purely Private Citizens Fail

Off-duty Sheriffs' deputies (government officials) in Maryland did not want a local newspaper to say anything critical about their boss, the elected Sheriff, on election day aheead of the Sheriff's attempted election. So, to silence the political speech of the newspaper several of the deputies a concocted scheme whereby in the middle of the night ahead of the election that would purchase all the newspers they could find, from mailboxes and local stores, so that voters would not be able to obtain the newspaper's political speech. The newspaper (Rossignol) filed a First Amendment retaliation lawsuit against the Sheriffs' deputies and the Sheriff (Voorhaar). The defendents - all public officials - argued that they conducted their newspaper-buying activity in their purely private citizen capacities and therefore the Court lacked jurisdiction to entertain a First Amendment retaliation caim. Judge Nickerson agreed and the newspaper publisher's case was dismissed. Read Rossignol v. Voorhaar, 199 F.Supp.2d 279 (2002). Private citizen speech against private citizen speech is part of the "profound national commitment" referenced by the Supreme Court.  If one private citizen speaks in a peaceful, pleasant, manner and an opposing private citizen speaks in a rude and obnoxious manner it does not mean the second speaker's speech is illegal. Mr. Sims, if he was acting in his purely private citizen capacity was correct in saying to the "old white lady" that his speech is protected by the First Amendment. It is not illegal for him to be an obnoxious a private citizen, just like it wasn't illegal for Sheriff's deupties in Rossignol to buy lots of newspapers.

ROUND TWO: First Amendment Retaliation Lawsuits Against Public Officials Acting 'Individually Under Color of State Law' Proceed

In a very interesting decision the Court of Appeals overruled Judge Nickerson and held the public official Sheriffs' deputies were acting under color of state law. Read Rossignol v. Voorhaar, 316 F.3d 516 (2003).

ROUND THREE: Qualified Immunity Not Permitted Because Public Officials Earlier Argued That They Acted In Private Citizen Capacities

On remand, Judge Nickerson ruled that the defendants could not have their cake and eat it too. He ruled that they could not try and use their public official status to make a qualified immunity argument because they had initially argued that they acted only as private citizens. Read Rossignol v. Voorhaar, 321 F.Supp.2d 642 (2004).


Qualified Immunity is a topic unto itself i.e. when it can and cannot be claimed and what the elements are, when analyzing it. A google search "qualified immunity" in the Third Circuit Court of Appeals for cases since 2015 makes for an interesting read. Qualified immunity attaches most typically to public officials acting in their official capacities. It doesn't apply to purely private citizens. Page 11 of this decision discusses qualified immunity. Broadly, the doctrine of qualified immunity provides that government officials are immune from suits for civil damages under 42 U.S.C. § 1983 ―insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). I think Sims would stand no chance of being able to win an argument saying that he didn't really know the citizens were engaging in constitutionally protected activity. He announced to the "old white lady" that he knew she was engaged in constitutionally protected activity. It is debatable whether qualified immunity even applies to the status 'individual capacity acting under color of state law' (I do not believe it does i.e. I think it attaches only to the status of official capacity - another reason for not suing Sims in his official capacity). But even assuming arguendo that qualified immunity could be argued by Sims - how does he avoid the fact that he announced on video that he knows what the citizens were doing was constitutionally protected? His own words destroy any chance at winning a qualified immunity argument.


The internet has leveled the playing field for citizens wanting to educate themselves about constitutional law without paying a lawyer. See The Federal Eastern District court is a federal trial court located in Philadelphia across the street from the Constitution Center. It lies within the geography of the Third Circuit Court of Appeals. In the Third Circuit there are a total of six (6) district trial courts underneath it (three in PA, one in NJ, and one in DE). All these District Courts take their legal guidance from the Third Circuit Court of Appeals. In other words, if the Third Circuit Court of Appeals rules on an issue that ruling becomes binding precedent on all the district courts. Thus, when conducting research, focusing in decisions made by the Third Circuit Court of Appeals is the place to focus. The Rossignol v. Voorhaar case cited above came out of the Fourth Circuit which is a different geograply. Although one Circuit's decisions are not binding on another Circuit's decisions, very often, the Judge's will look at other Circuit's decisions for the persuasive reasoning of a decision. Above the Circuit Court of Appeals like the U.S. Supreme Court.  A decision by the U.S. Supreme Court is one that has "U.S." in the citation. Appealing a decision from a district court decision to the Third Circuit Appeals Court is a right. But appealing from a Circuit decision to the Supreme Court is not a right. The Supreme Court only accepts a very limited number of cases each year. Thus, as a practical matter, the decisions of the Third Circuit Appeals Court are the one that constitute the best binding precedential decisions to research.

Google Scholar empowers the ordinary citizen to become a legal researcher. For example, one could click 'Case law', 'Federal courts' and 'Select courts' then when seeing "3rd Circuit" check the box only for the Court of Appeals. Search phrases like "ordinary firmness" or "First Amendment retaliation" or "qaulified immunity" can be researched. Google provides hyperlinks within the cases. So if one case cites to another case, that other case is one click away. In addition to searching using phrases, one can search actual cases to look for citations to that case by later cases. For example, Thomas v. Independence Twp (2006) is an important case. One could type that phrase into a search box, but choose a custom date, perhaps 2007 to the present and have "include citations" checked.  By clicking around Google Scholar an ordinary citizen is able to have intelligent conversations with one's lawyers. "Can you spell that case for me, please, and which Circuit and/or District Court was it in?" is a question most lawyers don't get from clients. But it empowers the citizen to look it up and think about whether the lawyer is interpreting things correctly. The legal researching citizen soon becomes able to look at this case and the first thing seen is the fact that Werkheiser acted individually and in his official capacity. These two capacities are very different yet Werkeiser does not seem to understand the difference. Maping out a winning legal strategy requires focus. Too many lawyers adopt a 'throw everything at the court and see what sticks' attitude. Judges don't like this, and it risks diluting or convoluting a winning argument with a losing argument.


1. He gets sued in his official capacity (which I think would be mistake).

2. He get sued "only in his individual capacity" (a smart lawyer makes sure the word "only" is used) then the brief focuses on making a "under color of state law" argument.

  • Suing an public official in his individual (personal) capacity seeks to hold that public official personally liable for his behavior. By contrast, suing a public official in his official capacity is the same thing as suing the government entity itself and therefore seeks to hold the government entity liable.  Read Kentucky v. Graham, 473 U.S. 159 (1985).
  • Suing a public official in his individual capacity for First Amendment retaliation can only proceed at the jurisdictional level if the plaintiff can show that the defendant "acted under color of state law" which is where the defendant "exercised power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Read West v. Atkins, 487 U.S. 42 (1988).

- Brian Sims' personal Facebook page has over 233,000 likes.  Much more than a regular private citizen. It has a blue mark because Facebook has verified it as belonging to a public figure.  Brian Sims is able to exercise power (reaching a nationwide viewing audience on social media when distributing videos) because he is an elected public official. His power comes from his status.


  • To succesfully sue a defendant for First Amendment retaliation requires the Plaintiff to show all three elements of the 1-2-3 test were met:
  1. The Plaintiffs must show they were exercizing their constitutional rights.
  2. The Plaintiffs must show that what happened was retaliatory and the retaliatory action must be sufficient to deter a person of "ordinary firmness"
  3. The Plantiffs must show a causal link i.e. that the defendant's actions happened because the plaintiffs were exercizing their constitutional rights.
Read Thomas v. Independence Tp. 463 F.3d 285 (2006).
"Ordinary firmness" is an objective standard
Whether or not Plaintiffs were actually deterred from exercizing their constitutional rights is irrelevant when assessing the liability of the Defendant. From the Third Circuit:
"We ask whether the act would deter a person of ordinary firmness, not whether the plaintiff was deterred. There is good reason for such a rule: we will not "`reward' government officials for picking on unusually hardy speakers. At the same time, we recognize that government officials should not be liable when the plaintiff is unreasonably weak-willed...." Read Mirabella v. Villard, 853 F.3d 641 (2017)