Colson v. Grohman

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 7, 1999
• Docket: 97-41388
• Status: Published

Opinion

Revised June 3, 1999

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-41388 _____________________

JOY NIDAY COLSON,

Plaintiff-Appellant,

v.

PAUL GROHMAN; MIKE HOGG; JACK ROBERTS; STELLA ROBERTS; CITY OF PEARLAND,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________ April 26, 1999 Before KING, Chief Judge, and JONES and SMITH, Circuit Judges.

KING, Chief Judge:

Plaintiff-appellant Joy Niday Colson appeals from the

district court’s grant of summary judgment in favor of

defendants-appellees Paul Grohman, Mike Hogg, Jack Roberts,

Stella Roberts, and the City of Pearland. Colson, an elected

official, alleges that defendants-appellees falsely accused her

of criminal acts, urged prosecutors to investigate her, and

instigated a recall election against her because they disagreed

with her political views and votes. Such retaliation, she

1 asserts, violates her rights under both the First and Fourteenth

Amendments. We find that the retaliatory criticism,

investigations, and false accusations to which Colson maintains

she was subjected are not actionable under the First Amendment.

Because Colson’s Fourteenth Amendment claim rests on a theory

that defendants-appellees both harmed her reputation and deprived

her of her constitutional right to speak without retaliation, it

is foreclosed by our conclusion that she has suffered no

actionable First Amendment harm. Accordingly, we affirm the

district court’s grant of summary judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Because the precise nature of the harms suffered by a

plaintiff claiming First Amendment retaliation is crucial to our

determination of whether she has alleged a constitutional

deprivation, we describe in detail the long and tortured history

of this case. Plaintiff-appellant Joy Niday Colson, whose

husband, Bill Colson, was a police officer in Pearland, Texas

(the City), won a seat on the Pearland City Council (the Council)

in May 1991. At that time, the other members of the Council were

Benny Frank, D.A. Miller, Randy Weber, and Billy Wolff, who in

May 1992 was replaced by David Smith. In the late summer or

early fall of 1992, defendant-appellee Phillip Michael Hogg, the

Pearland Police Department (PPD) Police Chief, presented his

proposed PPD budget for 1993, including a pay plan for PPD

2 employees, to the Council for adoption. Colson offered an

alternative proposal (the Colson Pay Plan) that called for

eliminating one of four PPD corporal positions, hiring two clerks

to fill that position, and assigning two clerks to administrative

duties so that another officer would be free to patrol the

streets. Hogg and defendant-appellee Paul Grohman, Pearland’s

City Manager, opposed the Colson Pay Plan. On December 14, 1992,

over Hogg’s objections, the Council voted unanimously to abolish

the corporal position.

According to Colson, Hogg then began using the powers of his

office to retaliate against her for her opposition to his

proposed budget. On January 7, 1993, Hogg submitted to Brazoria

County District Attorney Jim Mapel a “confidential investigation”

memorandum detailing numerous instances in which certain Pearland

City Council members, including Colson, allegedly violated state

open meetings or conflict-of-interest statutes. Hogg allegedly

related at least two incidents that he admitted he knew did not

constitute crimes. First, based on a conversation he had with

Council member Benny Frank in February 1992, Hogg suggested that

Colson violated the Texas Open Meetings Act (TOMA) by meeting

secretly to conspire to terminate then-City Manager James

DeShazer. Hogg admitted in the memorandum, however, that City

Attorney Lester Rorick had informed him that Colson had committed

no crime because a Council quorum had not been present at the

allegedly illegal meetings. Hogg also noted that in 1981 and

3 1983, Bill Colson offered two other PPD officers compensation in

exchange for their resigning from PPD sergeant positions so that

he could be promoted more quickly, a practice that Colson claims

Hogg knew was legal at the time. Although it was unusual for the

District Attorney’s Office to investigate such allegations, Mapel

assigned Assistant District Attorney Tom Selleck to the case

because of Hogg’s status as Police Chief.

Colson claims that over the next few months, Hogg became

increasingly frustrated by her positions on PPD issues and

retaliated against her by making more false criminal accusations.

First, on May 8, 1993, Hogg prepared a confidential report

alleging that Colson had violated TOMA and the state nepotism

statute. Some two weeks later, Hogg prepared another update

accusing Colson of improperly proposing that the Council

reconsider its earlier decision to discontinue disability

coverage for city employees in an effort to benefit her husband,

who had contracted a disabling illness. Hogg also noted:

I must add, that I am very concerned that this matter is taking so long to address. I delivered the information to Mr. Maples [sic] on January 7, 1993. Some of the subjects in this matter have been contacted, and rumors are flying. I feel that postponing actions may jeopardize this case totally.

Hogg delivered both reports to Selleck.

In response, Selleck told Hogg that if he could prove that

three TOMA violations had occurred within the preceding twelve

months, Selleck would take the allegations to the Brazoria County

4 grand jury. In June 1993, however, Selleck informed Mapel that

there was no basis for bringing criminal charges against the

Council members. Selleck and Mapel also discussed their concern

that Hogg was attempting to use the District Attorney’s Office in

a personal battle with Colson and other Council members. Mapel

informed Hogg on June 15, 1993, that no action would be taken

with respect to his allegations. Hogg claims that Mapel

acknowledged that the Council members had committed “technical

violations” of TOMA but considered these too minor for

prosecution. The record, however, contains no other evidence

that Mapel said any such thing.

At around the same time, Council member Weber requested a

Council meeting to evaluate Hogg, and City Manager Grohman

confided to Hogg that Colson, Miller, and Weber wanted to

terminate Hogg. On June 21, 1993, the Council, with Colson

absent, met in a public session for the express purpose of

evaluating Hogg. Hogg read a prepared statement suggesting that

the Council, in violation of TOMA and the City Charter, had

decided at a private retreat not to approve any raises for police

officers for fiscal year 1994. On or about July 13, Hogg filed a

probable cause affidavit claiming that Miller had committed

official misconduct by accepting pay from a public university

while also drawing a salary from the City. Three days later,

Hogg met with Selleck and Brazoria County Investigator John

Blankenship and provided them with a chart of violations that

5 Council members allegedly had committed between July 1, 1992 and

July 12, 1993. The chart indicated that Colson had violated TOMA

and the state nepotism statute by participating in illegal

meetings and voting on a matter directly affecting her husband.

On July 19, 1993, in a closed executive session, the Council

evaluated Grohman. Smith and Weber rated Grohman favorably,

while Frank gave him an average score. Miller described

Grohman’s performance as poor, as did Colson, who criticized him

for “manag[ing] with intimidation” and awarding salary increases

without Council approval. At the end of the meeting, Miller and

Frank requested that the Council consider terminating Grohman at

its next meeting, on July 26, 1993.

Colson alleges that a furious Grohman asked Hogg to prepare

recall petitions for the Council members who had criticized him,

which Hogg did.1 The petition for Colson contained the following

allegations, even though the district attorney already had

1 In their City Charter, the people of Pearland have reserved the power to recall city officials from office. To invoke the process, a specified number of the electorate must file a recall petition alleging one or more specified “grounds” for recall, i.e., incompetency, misconduct, or malfeasance in office. Five days after a petition has been filed, the City Secretary must either certify it if it is in proper form or return it to the petitioners for correction. If it is certified, the City Secretary must then present the petition to the Council. Within five days after a petition has been presented, the accused official may request “that a public hearing be held to permit him/her to present facts pertinent to the charges specified in the recall petition,” and, within fifteen days of such a request, the Council must order a recall election wherein the voters decide whether the accused official should be removed from office.

6 declined to bring charges:

Directed to the City Council in and for the City of Pearland for the specific purpose of demanding the recall of Joy Colson, who is a duly elected Council member of the City Council in and for the City of Pearland . . . . Pursuant to Section 6.02 of the City of Pearland Charter, the below signed qualified voters do hereby demand the recall of Council Member Colson on the grounds of Malfeasance in Office. Specifically we allege that Ms. Colson, while acting as a city council member, did violate The City of Pearland Charter, Sections 8.06 and 8.07, and Chapter 171(1)d, of the Local Government Code there by [sic] violating a law relating to her office as a Council member, thus rendering her actions in violation of Section 39.01 of the State Penal Code titled Official Misconduct, the same being a Class A Misdemeanor. We further allege that Ms. Colson violated these sections by deciding on the final budget of the police department for fiscal year 94 without conducting the required Public Hearing and posting the required Public notice, further that on March 8, 1993 she participated in a vote that had a direct effect on her husband’s position in the Police Department. We further allege that she regularly enters into deliberations concerning matters which have a direct impact on her husband.

Hogg delivered a copy of the Colson recall petition to two

individuals who requested it, Grohman and another city employee,

Paul Dillon, but to no one else. Grohman delivered a copy of the

Colson recall petition to defendant-appellee Stella Roberts, a

private Pearland citizen and former Council member, but to no one

else. Grohman and Stella Roberts then prepared a set of

instructions to accompany the petitions. These instructions

stated that Colson was being investigated by the District

Attorney’s Office and a grand jury for possible criminal

violations and accused her of (1) having shown a disregard for

the laws governing the City; (2) having numerous allegations

7 lodged against her for acting illegally outside public meetings;

(3) letting personal vendettas override public interest by

persecuting the police chief, city manager, and other city

employees; and (4) self-dealing. Colson contends that all of

these allegations were false. The petitions were circulated

during the July 26 Council meeting held to consider dismissing

Grohman, at which a divided Council, with Colson, Miller, and

Frank on one side and Smith and Weber on the other, decided to

revisit the issue of Grohman’s employment after ninety days.

On September 7, 1993, then-City Secretary Pat Jones received

the petitions. On September 11, she determined that the

signatures on the petitions lacked the necessary voter

registration numbers. Grohman then contacted Stella Roberts, who

picked up the petitions for correction, and directed City

employees to assist Stella Roberts and her husband, defendant-

appellee Jack Roberts, in correcting the petitions and to help

Jones certify them. Grohman also ordered Jones to provide the

Robertses with a City copy of the voter registration list so that

they could more easily provide the registration numbers. On

September 12, the Robertses returned the corrected petitions.

Jones and the City Attorney determined, however, that many of the

signatures were invalid because the petitions were not signed by

the affiants claiming to have circulated them, as required by the

City Charter. Grohman then personally telephoned the affiants,

including Jack Roberts, and requested that they come to the City

8 Secretary’s Office to sign the petitions they had circulated.

Throughout this period, Jones asserts, Grohman pressured her to

certify the petitions without verifying the signatures thereon

and to complete the certification in time for the September 13

Council meeting. Jones ultimately refused to certify the

petitions.

Following the return of the petitions, the Robertses, along

with others, organized the circulation of a second set of recall

petitions containing the same accusations against Colson that had

been made in the first set of recall petitions. In addition to a

new allegation of incompetence, the second set of petitions also

alleged that Colson (1) committed malfeasance in office by

regularly voting on matters directly affecting the compensation

afforded her husband as a member of the PPD; (2) approved the

1994 budget for the PPD in violation of TOMA; and (3) effectively

relegated her investigation and consideration of certain actions

to be taken by the Council to Miller and Frank and then voted

according to their direction or position. On October 4, 1993,

Colson filed suit in state court seeking an injunction barring

any recall election and continued publication of the allegedly

false criminal allegations against her. On November 22, 1993,

the state district court enjoined any recall election, finding

that the petitions failed to give Colson adequate notice of the

charges against her. No recall election ever occurred.

During and after the circulation of the first set of recall

9 petitions, Grohman and Hogg continued to report the Council’s

alleged criminal activity to the District Attorney’s Office. On

September 8, in a tape-recorded telephone conversation, Selleck

told Hogg that he had met with Colson, Miller, Frank, and their

lawyer and had informed the Council members that they had broken

the law. He also stated that he had accused Colson personally of

violating the state nepotism statute and committing criminal

official misconduct. In early November 1993, Hogg prepared a

presentation on the Council’s alleged criminal activities for

Sergeant Jim Harelson of the Texas Rangers. After the state

district court enjoined the recall election on November 22,

Stella Roberts telephoned Hogg to report that she had observed

Colson engaged in conversations in the courtroom regarding

matters that might have been pending before the Council and

offered to speak to the District Attorney’s Office. Hogg

prepared a report to law enforcement authorities setting forth

Roberts’s allegations.

Grohman and Hogg also continued to ask the District

Attorney’s Office to bring charges against Colson. On November

23, 1993, Grohman complained to Mapel that Council members were

retaliating against him and told Mapel that he understood that a

grand jury would follow Mapel’s recommendation. Mapel denied

this. Grohman also stated that an indictment for retaliation or

coercion was the only thing that would make Colson and the other

Council members “run the other way.” Hogg attempted to pressure

10 Mapel to indict Colson by forwarding to him a copy of a letter

criticizing Colson from his friend and political ally Reverend

Scarborough of the First Baptist Church of Pearland, accompanied

by a cover letter stating that the First Baptist congregation had

1800 members. Finally, in December 1993, Hogg, Selleck,

Blankenship, and Texas Ranger Joe Harelson met in Blankenship’s

office at the Brazoria County District Attorney’s Office, where

Hogg asked Selleck to bring criminal retaliation or coercion

charges against Colson because she had voted to have Grohman

investigated. Selleck told Hogg that he did not have sufficient

grounds to bring such charges. After Hogg continued pressuring

Selleck to bring the allegations before the grand jury, Selleck

warned Hogg that he was “coming close to trampling” on Colson’s

constitutional rights. Several days after this meeting, Hogg

told Selleck that if he could get Colson, Frank, and Miller

indicted, he would guarantee him 1800 votes if Selleck ran to

succeed Mapel as District Attorney in the upcoming election.

Selleck told Hogg that he had no interest in running for District

Attorney. Following this meeting, according to Colson, Selleck

and Blankenship concluded that Hogg had lost his focus as an

impartial and objective criminal investigator and forgotten his

mission as the City’s chief law enforcement officer. They also

discussed, but rejected, bringing bribery charges against him.

On January 12, 1994, Hogg testified before the grand jury.

He accused Colson of retaliation and coercion of a public

11 servant, despite being told by Selleck not to present such

allegations because the elements of these offenses could not be

met. He also asked the grand jury to indict Colson for a

violation of the nepotism statute and TOMA despite, Colson

claims, his awareness that she had the right to vote on matters

involving bona fide classes of employees that included her

husband and that the Council had held a public hearing on the PPD

budget. Following Hogg’s presentation, the grand jury declined

to indict Colson and found no probable cause to believe that

either the nepotism or conflict of interest statutes had been

violated. On February 3, 1994, Hogg wrote to Harelson, asking

that Selleck be investigated for his failure to take action on

Hogg’s allegations.

On March 23, 1994, Assistant District Attorney Danette

Holcombe informed Grohman that the grand jury had considered

Grohman’s retaliation and coercion charges and brought back a no-

bill on both. Grohman again claimed that he was being retaliated

against “by three of them. I can’t prove it but on two because

Mrs. Colson is always very careful not to be the one that signs

the documents. It’s always Miller and Frank . . . .” Holcombe

informed Grohman that several members of the Brazoria County

District Attorney’s Office had reviewed the case and had not

found that anyone had retaliated against or coerced Grohman.

On or about April 14, 1994, just two weeks before the May

1994 election in which Colson was running for reelection, Hogg

12 prepared, on City time and using City property, a lengthy report

on PPD stationery entitled “Pearland Pandemonium, or ‘It’s OK,

everybody does it’” and directed the City Secretary’s Office to

forward it to the public library. The purpose of the report,

Hogg claimed, was to give the Council an accounting of events as

it considered Grohman’s employment status; nevertheless, he

admitted that he had it placed in the library because he “wanted

it in the public forum.” While Hogg represented the report to be

a complete chronology of events relating to criminal

investigations of all Council members, it targeted only Colson,

Frank, and Miller. Hogg attributed his failure to include

allegations against any of the other Council members as “due to

[his] style of writing.”

In May 1994, Colson lost her reelection bid by a wide

margin. She continued to pursue a state court action for

defamation, libel, and due process violations against, among

others, the Robertses; in August 1994, she added Hogg and Grohman

as defendants. In May 1995, Colson filed an amended petition

alleging claims under 42 U.S.C. § 1983 for violations of her

rights under the First and Fourteenth Amendments.2 Hogg,

2 Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party

13 Grohman, the Robertses, and the City of Pearland (collectively,

defendants) removed the case to the United States District Court

for the Southern District of Texas pursuant to 28 U.S.C.

§ 1441(a) & (b), where it was assigned to a magistrate judge, and

Colson filed several amended petitions. Her Seventh Amended

Original Petition, the live pleading in this case, alleges a

“deliberate and calculated campaign undertaken by the Defendants,

conspiring together, to remove her from office and to destroy her

reputation and good standing in the Pearland community in direct

retaliation for [her] efforts to speak out and vote on matters of

public concern.” The petition contains five counts: (1)

Defendants, acting under color of state law, wilfully, knowingly,

and maliciously conspired to intimidate and retaliate against

Colson, in her capacity as an elected official and as a citizen,

for her efforts to speak out and vote freely on matters of public

concern, and their malicious actions did, in fact, deny Colson

her First Amendment rights as secured by the Constitution and 42

U.S.C. § 1983; (2) defendants, acting under color of state law,

wilfully, knowingly, and maliciously conspired to publicize false

injured . . . .

42 U.S.C. § 1983. Section 1983 creates a private right of action for redressing the violation of federal law by those acting under color of state law. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 82 (1984). It is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. See Albright v. Oliver, 510 U.S. 266, 271 (1994).

14 and defamatory statements about Colson in connection with their

efforts to remove her from public office through their initiation

of recall proceedings, and these statements stigmatized Colson

and cast her in a false light, thereby denying Colson her

Fourteenth Amendment rights as secured by the Constitution and 42

U.S.C. § 1983; (3) defendants made false statements with reckless

disregard for the truth or actual knowledge of their falsity, “in

an effort to retaliate and injure Colson and her political

associates,” and these statements constitute actionable slander,

libel, and libel per se under Texas Civil Practice & Remedies

Code § 73.001; (4) defendants’ actions constitute intentional

infliction of emotional distress on Colson; and (5) defendant

Hogg caused the commencement of criminal prosecutions against

Colson and her political associates, “knowingly making false and

misleading charges in retaliation for Colson speaking out on

matters of public concern involving the PPD and Grohman.” Colson

claims damages for “shame, embarrassment, humiliation, and mental

pain and anguish,” as well as injury to her “good name and

reputation,” loss of her Council position, and exposure to

“hatred, contempt, and the ridicule of the general public, as

well as her friends and relatives.”

All defendants filed motions for summary judgment. With

respect to Colson’s § 1983 claims, they contended that she had

failed to allege any deprivation of a cognizable constitutional

right. Colson filed a response, arguing that she had stated

15 (1) an actionable First Amendment free speech claim because she

had alleged that defendants misused the recall and criminal

justice processes to retaliate against her for her

constitutionally protected speech, and (2) an actionable

Fourteenth Amendment liberty interest claim because she had

alleged that the defendants injured her reputation and deprived

her of “her First Amendment right to speak out on matters of

public concern while she was a Council member, free from

retaliation by defendants.” The magistrate judge issued a report

recommending that summary judgment be denied on the First

Amendment issue but granted on all other claims. The district

court, however, declined to accept the recommendation, granted

defendants’ motions for summary judgment on the First and

Fourteenth Amendment claims, and dismissed those claims.3 Colson

appealed.

II. STANDARD OF REVIEW

We review the entry of summary judgment de novo, see Morris

v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir.

1998), applying the same standards as the district court, see

Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., 831 F.2d 77,

79 (5th Cir. 1987). After consulting applicable law in order to

3 The district court then ordered that the First and Fourteenth Amendment claims be severed from the remaining claims pursuant to Federal Rule of Civil Procedure 54(b). Because only matters of state law remained, the court declined to exercise supplemental jurisdiction and remanded the remaining claims to the district court of Brazoria County, Texas.

16 ascertain the material factual issues, we consider the evidence

bearing on those issues, viewing the facts and the inferences to

be drawn therefrom in the light most favorable to the non-movant.

See King v. Chide, 974 F.2d 653, 656 (5th Cir. 1992). The party

moving for summary judgment has the initial burden of “informing

the district court of the basis for its motion, and identifying

those portions of [the summary judgment record] which it believes

demonstrate the absence of a genuine issue of material fact.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once that

burden is met, the burden of production shifts to the non-movant

to demonstrate that a genuine issue of fact does exist on the

material elements of his claims. See id. at 323-24. Summary

judgment is properly granted if “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law.” FED. R. CIV. P. 56(c).

III. DISCUSSION

On appeal, Colson asserts that defendants violated her First

Amendment rights by misusing the criminal justice and recall

processes to retaliate against her for her speech on matters of

public concern. Specifically, she claims, defendants knowingly

(1) reported baseless accusations to the District Attorney’s

Office in an effort to have her prosecuted; (2) used these

17 allegations as the basis of a recall petition to drive her out of

office; and (3) repeated them once again in a public document

designed to discredit her with her constituents. Such

retaliation by city officials, Colson argues, constitutes a

deprivation of her First Amendment rights under color of state

law and is therefore actionable under 42 U.S.C. § 1983.

Defendants respond that, even taking Colson’s complaint as true,

their actions resulted only in injury to Colson’s reputation,

which is not actionable under the Constitution, especially where

the plaintiff is, like Colson, an elected policymaker alleging

that her opponents’ politically motivated defamation chilled her

expression.

The First Amendment provides that “Congress shall make no

law respecting an establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom of speech, or of

the press; or the right of the people peaceably to assemble, and

to petition the Government for a redress of grievances.” U.S.

CONST. amend. I. Although it explicitly refers only to federal

action, it applies to the states through the Due Process Clause

of the Fourteenth Amendment. See De Jonge v. Oregon, 299 U.S.

353, 364 (1937). There is no question that political expression

such as Colson’s positions and votes on City matters is protected

speech under the First Amendment. See Connick v. Myers, 461 U.S.

138, 145 (1983) (“[T]he Court has frequently reaffirmed that

speech on public issues occupies the highest rung of the

18 heirarchy [sic] of First Amendment values and is entitled to

special protection.”) (internal quotation marks omitted); First

Nat’l Bank v. Bellotti, 435 U.S. 765, 776 (1978) (stating that

speech on matters of public concern is “at the heart of the First

Amendment’s protection”); Rash-Aldridge v. Ramirez, 96 F.3d 117,

119 (5th Cir. 1996) (citing Miller v. Town of Hull, 878 F.2d 523,

532 (1st Cir. 1989)).

We turn first to defendants’ argument that Colson cannot

claim First Amendment protection against their alleged

retaliation because she was a public official. They assert that

just as the Pearland electorate as a whole did not violate

Colson’s constitutional rights by voting her out of office

because of her political speech, no individual citizen could

violate her constitutional rights by publicly criticizing her

official actions, trying to remove her from office through the

use of statutory procedures, attempting to have her criminally

investigated for official misconduct, and campaigning to oust her

from office. Cf. Zilich v. Longo, 34 F.3d 359, 363 (6th Cir.

1994) (holding that a “pattern of retaliatory voting and official

legislative action” does not violate the First Amendment and that

“[t]he First Amendment is not an instrument designed to outlaw

partisan voting or petty political bickering through the adoption

of legislative resolutions”).

Defendants are certainly correct that criticism of public

officials lies at the very core of speech protected by the First

19 Amendment. See New York Times Co. v. Sullivan, 376 U.S. 254,

269-70 (1964) (stating that this country enjoys “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”). Even charges of

criminal conduct against an official or candidate are

constitutionally protected unless they are made with knowledge of

their falsehood or with reckless disregard of whether they are

false or not. See Monitor Patriot Co. v. Roy, 401 U.S. 265, 277

(1971). But intentional or reckless falsehood, even political

falsehood, enjoys no First Amendment protection:

At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool to unseat the public servant or even to topple an administration. . . . That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.

McDonald v. Smith, 472 U.S. 479, 487 (1985) (quoting Garrison v.

Louisiana, 379 U.S. 64, 75 (1964)) (holding that a state may

constitutionally award damages for libelous letters to the

President falsely accusing a potential appointee of criminal

misconduct). Taken in the light most favorable to the non-

movant, the summary judgment record in this case shows that the

defendants not only criticized Colson but defamed and libeled

20 her, presenting criminal allegations to the District Attorney’s

Office and the public with knowledge that they were false or with

reckless disregard of whether they were false or not.4

Therefore, defendants’ speech enjoys no First Amendment

protection, and they cannot argue that protected First Amendment

activity cannot violate the First Amendment rights of others.

Defendants respond, however, that even assuming their

allegations were knowingly false, the First Amendment does not

protect policymaking officials from dismissal or other sanctions

because of their speech. In support of this argument, they cite

Romero-Barcelo v. Hernandez-Agosto, 75 F.3d 23 (1st Cir. 1996).

In Romero-Barcelo, a former governor of Puerto Rico brought a

§ 1983 action against the President of the Puerto Rico Senate,

the head of the Senate Judiciary Committee, and the Senate’s

chief counsel. He claimed that the defendants and the Judiciary

Committee itself continuously labeled him an assassin or murderer

because of his beliefs and political association, even though no

4 Selleck stated in his affidavit that he told Mapel as early as June 1993 that there was no basis for bringing criminal charges against the Council members and that Mapel told Hogg that his office would take no action. He also testified that Hogg and Grohman accused Miller of illegally receiving a salary from two governmental entities at the same time, without revealing that it was Grohman who had suggested that he do so. Blankenship stated in his affidavit that Hogg offered Selleck 1800 votes for District Attorney if he convinced the grand jury to indict Colson, Miller, and Frank. Hogg himself admitted in deposition testimony that he prepared recall petitions even though he knew that it was improper for him to do so and that it was unusual for him to become personally involved in criminal investigations.

21 evidence was ever submitted to substantiate the charge; that one

defendant presented information about him to the Committee and

the press knowing it to be false or misleading; and that the

defendants disseminated false information about him. See id. at

27-28. The First Circuit determined that the governor had failed

to state an actionable claim because there is “no First Amendment

protection for a politician whose rights to freedom of speech,

freedom of association, and freedom to disassociate [oneself]

from unpopular views have been injured by other politicians

seeking to undermine his credibility within his own party and

with the electorate.” Id. at 34 (quoting Barcelo v. Agosto, 876

F. Supp. 1332, 1348 (D.P.R. 1995)) (internal quotation marks

omitted) (alteration in original). Because Romero-Barcelo was a

policymaker, the court held, Elrod v. Burns, 427 U.S. 347, 357

(1976) (plurality opinion), and Branti v. Finkel, 445 U.S. 507,

517 (1980), foreclosed his First Amendment retaliation claim.

See Romero-Barcelo, 75 F.3d at 34.

Even if we wished to do so, we are not free to adopt the

First Circuit’s position. At least twice, this court has granted

relief to elected officials claiming First Amendment retaliation.

See Scott v. Flowers, 910 F.2d 201, 213 (5th Cir. 1990) (holding

that the Texas Commission on Judicial Conduct could not

constitutionally reprimand an elected state justice of the peace

for making public statements criticizing other county officials);

Smith v. Winter, 782 F.2d 508, 512 (5th Cir. 1986) (finding that

22 elected members of a county board of education stated an

actionable First Amendment retaliation claim). We are compelled

to obey this binding precedent.

Moreover, with respect to the First Circuit’s reasoning,

there is a viable counterargument that Elrod and Branti do not

exclude policymaking officials from all First Amendment

protection. Elrod and Branti held that the state may dismiss a

government employee on the basis of his political beliefs only if

(1) those beliefs would interfere with the discharge of his

official duties, and (2) the state can show that dismissal is a

narrowly tailored means of achieving an interest of vital

importance. See Branti, 445 U.S. at 517 & n.12; Elrod, 427 U.S.

at 362-63. In Romero-Barcelo’s case, the argument would go, the

defendants could have shown neither, for an elected legislator’s

expression of his political beliefs is absolutely necessary for,

rather than detrimental to, the discharge of his official duties,

and at any rate the state has no compelling interest in

suppressing such speech. See Bond v. Floyd, 385 U.S. 116, 135-36

(1966) (“The manifest function of the First Amendment in a

representative government requires that legislators be given the

widest latitude to express their views on issues of policy.”).

Thus, one could contend, Elrod and Branti do not sanction

retaliation against a public official for the exercise of First

Amendment rights.

Ultimately, however, this case does not require us to

23 confront Romero-Barcelo or our prior precedents, as Colson has

not suffered harms rising to the level of actionable retaliation.

We next explain why.

As a general rule, the First Amendment prohibits not only

direct limitations on speech but also adverse government action

against an individual because of her exercise of First Amendment

freedoms. For example, the government may not place conditions

on public benefits, including jobs, that penalize applicants for

their speech, beliefs, or association. See Pickering v. Board of

Educ., 391 U.S. 563, 574-75 (1968) (holding impermissible under

the First Amendment the dismissal of a high school teacher for

speaking on “issues of public importance”); Sherbert v. Verner,

374 U.S. 398, 409-10 (1963) (holding that unemployment

compensation may not be withheld on the condition that a person

accept Saturday employment contrary to her religious faith);

Torcaso v. Watkins, 367 U.S. 488, 495-96 (1961) (holding that a

citizen cannot be refused a public office for failure to declare

his belief in God); Speiser v. Randall, 357 U.S. 513, 528-29

(1958) (prohibiting on First Amendment grounds the limiting of

state tax exemptions to only those who take a loyalty oath); cf.

Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 367

U.S. 886, 898 (1961) (recognizing that the government cannot deny

employment because of previous membership in a particular

political party). This is true even where the person has no

contractual or property right in the benefit withheld. See Mt.

24 Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285

(1977) (holding that an untenured public school teacher may not

be discharged if he shows that constitutionally protected conduct

was a “substantial” or “motivating” factor in the decision not to

rehire him and the employer fails to demonstrate that it would

have reached the same decision even in the absence of the

protected conduct); Perry v. Sindermann, 408 U.S. 593, 599 (1972)

(holding that an untenured teacher’s lack of formal contractual

or tenure security in his job was irrelevant to his First

Amendment claim that his employer, a state college, refused to

renew his contract because of his protected speech).

Similarly, the Supreme Court has recognized limitations on

patronage--that is, government officials’ power to make

employment decisions on the basis of an individual’s political

affiliation--in Elrod, 427 U.S. at 373, Branti, 445 U.S. at 517,

and Rutan v. Republican Party, 497 U.S. 62, 75 (1990). In Elrod,

the Court held that “the practice of patronage dismissals is

unconstitutional under the First and Fourteenth

Amendments . . . .” 427 U.S. at 373. In Branti, the Court

clarified that the Elrod rule applies unless the “hiring

authority can demonstrate that party affiliation is an

appropriate requirement for the effective performance of the

public office involved.” 445 U.S. at 518. Finally, in Rutan,

the Court announced that Elrod and Branti apply not only to

patronage dismissals but also to patronage promotions, transfers,

25 and recalls after layoffs. See 497 U.S. at 75. The Court has

also extended Elrod, Branti, and Rutan to government retaliation

against a contractor or a regular provider of services for the

exercise of rights of political association and the expression of

political allegiance. See O’Hare Truck Serv., Inc. v. City of

Northlake, 518 U.S. 712, 720 (1996); Board of County Comm’rs v.

Umbehr, 518 U.S. 668, 685-86 (1996). While Rutan and its progeny

addressed only political patronage, we have also applied it to

cases involving public employer retaliation for employees’

exercise of their free speech rights. See Brady v. Fort Bend

County, 145 F.3d 691, 703 (5th Cir. 1998) (citing Click v.

Copeland, 970 F.2d 106, 110-11 (5th Cir. 1992)), cert. denied,

119 S. Ct. 873 (1999).

But why is such retaliation against the exercise of First

Amendment rights itself a violation of the First Amendment? The

Supreme Court has asserted that imposing penalties for speech,

belief, and association chills the exercise of First Amendment

freedoms and thereby indirectly produces a result that the

government cannot command directly:

For at least a quarter-century, this Court has made it clear that even though a person has no “right” to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests--especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This

26 would allow the government to “produce a result which [it] could not command directly.” Such interference with constitutional rights is impermissible.

Perry, 408 U.S. at 597 (citation omitted). Thus, in Pickering,

the Court noted that while not a criminal sanction or damage

award, “it is apparent that the threat of dismissal from public

employment is nonetheless a potent means of inhibiting speech,”

391 U.S. at 574, and observed in Elrod that “[t]he cost of the

practice of patronage is the restraint it places on freedoms of

belief and association,” 427 U.S. at 355. Similarly, the Court

justified its extension of Elrod to the patronage promotions,

transfers, and recalls after layoffs at issue in Rutan by

pointing out that “there are deprivations less harsh than

dismissal that nevertheless press state employees and applicants

to conform their beliefs and associations to some state-selected

orthodoxy.”5 Rutan, 497 U.S. at 75. And in O’Hare, the Court

5 The Court pointed out:

Respondents next argue that the employment decisions at issue here do not violate the First Amendment because the decisions are not punitive, do not in any way adversely affect the terms of employment, and therefore do not chill the exercise of protected belief and association by public employees. This is not credible. Employees who find themselves in dead-end positions due to their political backgrounds are adversely affected. They will feel a significant obligation to support political positions held by their superiors, and to refrain from acting on the political views they actually hold, in order to progress up the career ladder. Employees denied transfers to workplaces reasonably close to their homes until they join and work for the Republican Party will feel a daily pressure from their long commutes to do so. And employees who have been laid off may well feel compelled to engage in whatever political activity

27 concluded that a municipal government’s termination of a

commercial relationship with an independent contractor because of

his speech constituted, like the dismissal in Perry, a “burden on

an individual’s right of political association,” 518 U.S. at 720,

and an “attempted coercion of [the contractor’s] political

association, enforced by a tangible punishment,” id. at 721.

But it does not follow that all disadvantages imposed for

the exercise of First Amendment freedoms constitute actionable

retaliation. To be sure, the Supreme Court has suggested in

dicta that even the most trivial retaliatory harassment is

actionable. In Rutan’s famous footnote 8, the Court stated: “The

First Amendment, as the court below noted, already protects state

employees not only from patronage dismissals but also from ‘even

an act of retaliation as trivial as failing to hold a birthday

party for a public employee . . . when intended to punish her for

exercising her free speech rights.’” 497 U.S. at 76 n.8 (quoting

Rutan v. Republican Party, 868 F.2d 943, 954 n.4 (7th Cir.

1989)). The lower court in Rutan, however, was in turn

characterizing its own decision in Bart v. Telford, 677 F.2d 622

(7th Cir. 1982), which in fact held that trivial actions would be

actionable only if they formed part of a campaign of retaliatory

harassment. See Rutan, 868 F.2d at 954 n.4. And although the

is necessary to regain regular paychecks and positions corresponding to their skill and experience.

Rutan, 497 U.S. at 73 (footnotes omitted).

28 Court stated in Elrod that “the inducement afforded by placing

conditions on a benefit need not be particularly great in order

to find that rights have been violated,” 427 U.S. at 359 n.13, it

thereby also implied that some inducements may fall short even of

that mark. It follows, therefore, that there may be some minor

adverse actions that would not constitute First Amendment

violations. See Sharp v. City of Houston, 164 F.3d 923, 933 (5th

Cir. 1999) (“Although the Supreme Court has intimated that the

First Amendment protects against trivial acts of retaliation,

this court has required something more than the trivial.”); see

also Scott, 910 F.2d at 216 n.32 (Garwood, J., dissenting) (“I

believe it would be a serious mistake to take literally the

Supreme Court’s apparently off-hand dicta about birthday parties

in footnote 8 of Rutan. In the body of the opinion in Rutan, the

Court stressed that the case before it involved ‘significant

penalties . . . imposed for the exercise of rights guaranteed by

the First Amendment.’” (citation omitted)).

Accordingly, this circuit has held that “[a]lthough some

actions may have . . . the effect of chilling [the plaintiff’s]

protected speech, they are not actionable.” Pierce v. Texas

Dep’t of Criminal Justice, Inst. Div., 37 F.3d 1146, 1150 (5th

Cir. 1994). In Pierce, the plaintiff alleged that she was

investigated once for “trafficking” and once for a verbal

altercation. We found these incidents non-actionable under the

First Amendment because “[n]either investigation resulted in any

29 action being taken against Pierce.” Id. Similarly, we have

held that a law school dean’s criticism, without more, of certain

professors was not actionable:

[A]ssuming that Douglas did, in fact, criticize Kleven’s [law school] participation as being counterproductive, Plaintiffs point to no case law (nor do we find any) which holds that an employer’s criticism of an employee, without more, constitutes an actionable adverse employment action. In this case, the evidence is clear that no Plaintiff has been discharged or threatened with discharge; no Plaintiff has been demoted; no Plaintiff has been denied a promotion; and no Plaintiff has suffered a reduction in pay. In fact, all Plaintiffs are tenured professors of law, having achieved the highest rank available at the law school. All Plaintiffs still teach at the law school and all Plaintiffs are among the law school’s top earners. Regardless of the arguable merits behind this, or any criticism, mere criticisms do not give rise to a constitutional deprivation for purposes of the First Amendment. Accordingly, Plaintiffs did not suffer an actionable adverse employment action when Douglas criticized Kleven as being counterproductive.

Harrington v. Harris, 118 F.3d 359, 366 (5th Cir.), cert. denied,

118 S. Ct. 603 (1997). Likewise, in Benningfield v. City of

Houston, 157 F.3d 369, 376 (5th Cir. 1998), cert. denied, 119 S.

Ct. 1457 (1999), we held that false accusations, verbal

reprimands, and investigations were not actionable adverse

employment actions. Formal reprimands, however, do qualify as

adverse employment actions and, when given in retaliation for

First Amendment activity, are actionable. See Harris v. Victoria

Indep. Sch. Dist., 168 F.3d 216, 220 (5th Cir. 1999); Pierce, 37

F.3d at 1149.

We now turn to Colson’s allegations. We first emphasize

what did not happen: Colson was never arrested, indicted, or

30 subjected to a recall election.6 Nor was she formally

reprimanded. This last fact distinguishes her case from Scott,

in which we found that a single formal public reprimand of a

judicial official in retaliation for his exercise of First

Amendment rights was actionable under § 1983. Scott, an elected

state justice of the peace, wrote an open letter criticizing

other county officials. See Scott, 910 F.2d at 204 & n.2. The

Texas Commission on Judicial Conduct publicly reprimanded him.

See id. at 204, 205 n.6. After first acknowledging Scott’s good

intentions and personal integrity, the Commission chided him for

being “insensitive” and urged him to be “more restrained and

temperate in written and oral communications in the future.” Id.

at 204. Our opinion expressed no doubt that the reprimand was a

restraint on speech, despite an eloquent dissent from Judge

Garwood emphasizing that the Commission inflicted no injury or

deprivation on Scott:

I would not reach the question of whether Scott’s First Amendment rights would have been violated had the Commission taken some action which materially and adversely altered Scott’s conditions of employment or which placed Scott, individually or in his former position as justice of the peace, under some legal disability, or caused him in either capacity to lose legal rights he would otherwise have had, or to be legally subject to some sort of adverse consequence of which he would otherwise have been legally free.

Id. at 215 (Garwood, J., dissenting). Like Scott, Colson is an

6 Colson does claim that the defendants’ conduct caused her to lose her bid for reelection, but she admittedly has no proof of this assertion.

31 elected public official, and her allegations are similar to his

in that both claim to have been the target of public criticism in

retaliation for their First Amendment activity. But, unlike

Scott, Colson did not receive a formal reprimand.7

On the contrary, Colson has alleged only that she was the

victim of criticism, an investigation (or an attempt to start

one), and false accusations: all harms that, while they may

chill speech, are not actionable under our First Amendment

retaliation jurisprudence. She maintains that “[i]n retaliation

for Colson’s expressive activity, from December 1992 through May

1994 and beyond, Defendants conspired together to falsely brand

Colson and two of her fellow Council members, Deloss A. Miller

and Benny Frank as criminals.” As part of this scheme, Colson

claims, Hogg distributed “Pearland Pandemonium” even though “he

knew or should have known that the allegations contained in his

report were false and would stigmatize Colson, Frank, and Miller

and cast them in a false light in the Pearland community.” The

7 Our court has never explicitly explained why formal reprimands given in retaliation for the exercise of First Amendment rights are actionable but less formal criticisms and accusations are not. Scott provides additional insight into this distinction. It observed that the Texas Commission on Judicial Conduct, in reprimanding Scott, “investigated the complaints lodged against [him], declared him in violation of the then-existing Code of Judicial Conduct, and enforced its determination by issuing a public reprimand.” Scott, 910 F.2d at 208 (emphasis added). Thus, a formal reprimand, by its very nature, goes several steps beyond a criticism or accusation and even beyond a mere investigation; it is punitive in a way that mere criticisms, accusations, and investigations are not.

32 defendants’ actions in this respect constitute no more than the

making of false accusations, which is not actionable under

§ 1983. Colson also asserts that “Hogg and Grohman, relying on

information they knew to be false or with reckless disregard to

the truthfulness of the same, repeatedly urged the Brazoria

County Attorney’s office to indict Colson, Frank and Miller

and/or publicly brand them as criminals.” These actions are

again no more than false accusations and, even insofar as the

County Attorney’s Office did investigate them, are not actionable

under § 1983. Finally, Colson claims that the defendants

circulated two sets of recall petitions, even though “they knew

or should have known that the allegations contained in the

Petitions were false and would stigmatize Colson, Frank, and

Miller and cast them in a false light in the Pearland community.”

The allegations contained in the recall petitions are, like those

made to the County Attorney’s Office and to the general public,

mere accusations that are not actionable under § 1983.

Colson contends, however, that defendants’ alleged

retaliatory misuse of the recall process is actionable under

Smith v. Winter, 782 F.2d 508 (5th Cir. 1986). In Smith, three

elected members of a county board of education brought suit in

response to an attempt to recall them initiated by the county

superintendent of education. See id. at 509. According to the

board members, the superintendent became upset after they

exercised their First Amendment rights regarding school district

33 matters and refused to vote in accordance with his wishes and, in

retaliation therefor, conspired to have them removed from office

by

unlawfully placing certain persons’ names on the removal petitions, by unlawfully allowing certain persons to sign the removal petitions who were not qualified to sign them, by unlawfully allowing certain persons to sign the petitions twice, by unlawfully allowing certain persons to print their names on the petitions, by misrepresenting the nature of the petitions to certain persons who signed them on the strength of the misrepresentations, and by falsely certifying and verifying [that the petitions met legal standards].

Id. at 511 n.5. On appeal from the district court’s grant of a

motion to dismiss for failure to state a claim, this court

determined “that this complaint includes allegations that the

local appellees conspired through fraudulent means to misuse the

recall statute against appellants in retaliation for appellants’

exercise of their First Amendment rights. Such a complaint

states a claim under § 1983.” Id. at 512.

In this case, Colson alleges that the defendants misused the

recall process by circulating recall petitions containing false

information. Her claim is missing a crucial element, however:

She was never subjected to a recall election. In Smith, in

contrast, a recall election was held, although the plaintiffs

prevailed at the polls and remained school board members at the

time we decided the appeal. See id. at 510. Colson argues that

the occurrence or non-occurrence of a recall election should make

no difference to the success or failure of her claim; according

to her, the Smith court acknowledged that it was the misuse of

34 the recall process, not the misuse of the recall process and the

resulting recall election, that caused injury. Insofar as Smith

suggested anything of the sort--and we find no clear evidence

that it did--such a conclusion would be mere dicta, as a recall

election did occur in that case. Such a suggestion would also be

inconsistent with our recent caselaw unequivocally holding that

retaliatory criticisms, investigations, and false accusations

that do not lead to some more tangible adverse action are not

actionable under § 1983.8

Finally, we must consider the argument that even if each

individual criticism, investigation, and accusation Colson

suffered is not actionable, the campaign of retaliatory

8 Indeed, in Johnson v. Louisiana Department of Agriculture, 18 F.3d 318 (5th Cir. 1994), we held that retaliatory criminal prosecution is not actionable under § 1983 unless it satisfies all the elements of the common law tort of malicious prosecution. The plaintiff in Johnson alleged that the Department of Agriculture brought charges against him resulting in various penalties, including the revocation of his cropdusting license, four times because he failed to support the agricultural commissioner’s reelection campaign. See id. at 319-20. We said that “[i]f this allegation asserts a claim on any basis, we agree with the district court that the claim is one for malicious prosecution in violation of Johnson’s First Amendment rights” and that “at the very least, if the First Amendment protects against malicious prosecution, Johnson must not only allege a deprivation of a constitutional right, but must also establish all of the elements of the common law tort action.” Id. at 320. Johnson seems to suggest that in order to obtain relief on her retaliatory misuse of the recall process claim, Colson must prove all the elements of an analogous tort, such as abuse of civil process. The defendants argue that she cannot establish at least two such elements: that a civil proceeding was instituted against her and that she suffered special damages. Johnson is consistent with our general rule that the plaintiff must cross a certain threshold of harm before she can bring a claim for First Amendment retaliation.

35 harassment as a whole is. The plaintiff in Bart, which we cited

as support for our conclusion in Smith, 782 F.2d at 512, alleged

that her employers had subjected her to a campaign of petty

harassments in retaliation for her exercise of her First

Amendment rights. See Bart, 677 F.2d at 624.9 On appeal, the

Seventh Circuit reversed the district court’s dismissal of the

complaint for failure to state a claim, noting that the complaint

alleged “an entire campaign of harassment which though trivial in

detail may have been substantial in gross.” Id. at 625. Our own

cases on this subject have taken place in the employment context,

where we have required that the campaign of retaliatory

harassment rise to such a level as to constitute a constructive

adverse employment action. For example, in Sharp, we upheld a

jury verdict that the plaintiff had been constructively demoted

in retaliation for exercising her First Amendment rights because

the defendants created an “intolerable situation” causing her to

transfer to a less desirable position. 164 F.3d at 934. In

Benningfield, we concluded that a plaintiff alleging a

retaliatory “campaign of harassment and retaliation,” 157 F.3d at

374, was not constructively discharged because she did not show

9 The allegedly retaliatory campaign included such things as “baseless reprimands” and “[h]olding [the plaintiff] up to ridicule for bringing a birthday cake to the office on the occasion of the birthday of another employee although the practice was common and was especially favored in the case of supervisory personnel.” Bart, 677 F.2d at 624. It is not clear whether the “baseless reprimands” were the sort of formal reprimands that this circuit has found to be actionable.

36 that a reasonable person in her shoes would have felt compelled

to resign, see id. at 376-78. The alleged campaign of

retaliation taken against Colson simply did not rise to this

level. Even viewing the summary judgment evidence in the light

most favorable to Colson, the defendants’ allegedly retaliatory

crusade amounted to no more than the sort of steady stream of

false accusations and vehement criticism that any politician must

expect to endure. Cf. Dorsett v. Board of Trustees for State

Colleges & Univs., 940 F.2d 121, 123 (5th Cir. 1991) (concluding

that the pattern of retaliatory harassment, including decisions

concerning teaching assignments, pay increases, administrative

matters, and departmental procedures, alleged by a university

professor did not “rise to the level of a constitutional

deprivation” because “[i]n public schools and universities across

this nation, interfaculty disputes arise daily” over such

“relatively trivial matters”). In any case, the attacks on

Colson seem to have had no effect other than to make her “become

more careful on which items [she] would vote on,” and they did

not stop her from running for reelection. We therefore find that

Colson has not alleged any First Amendment deprivation actionable

under § 1983. As her Fourteenth Amendment due process claim

rests on a theory that she suffered harm to her reputation

coupled with the denial of her constitutional right to speak

without retaliation, see Paul v. Davis, 424 U.S. 693, 711 (1976),

our determination that the defendants did not infringe her First

37 Amendment freedoms requires a conclusion that they also did no

injury to her Fourteenth Amendment rights.10

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.

10 In Paul, the chiefs of police of two neighboring Kentucky communities distributed a flyer containing the names and photographs of individuals labeled “active shoplifters.” 424 U.S. at 694-95. The plaintiff, Edward Charles Davis III, appeared in the center of the second page. Although Davis had been arrested for shoplifting about a year and a half before the flyer appeared, he had pled not guilty, and the charge had been “filed away with leave (to reinstate),” a disposition that left it outstanding. Id. at 695-96. Thus, at the time the flyer was circulated, Davis had been charged with shoplifting, but his guilt or innocence had never been adjudicated, and shortly afterward a judge dismissed the charge altogether. Davis brought an action under 42 U.S.C. § 1983, claiming that the flyer, and in particular the label “active shoplifters,” deprived him of a Fourteenth Amendment liberty interest without due process of law. Id. at 696-97. The Supreme Court rejected this argument, holding that reputation alone, apart from injury to a previously recognized right or status, is not liberty or property protected by the Due Process Clause. See id. at 711. As we recounted above, Colson argues that she has made out an actionable Fourteenth Amendment liberty interest claim because she had alleged that the defendants injured her reputation and deprived her of “her First Amendment right to speak out on matters of public concern while she was a Council member, free from retaliation by defendants.”