“Joe the Plumber” Loses First Amendment Retaliation Suit

By Administrator
March 28, 2012

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Remember Joe Wurzelbacher? Probably not, but you might recall him by his better known nickname, Joe the Plumber.

Wurzelbacher, of Toledo, Ohio, initially won fame after a campaign trail discussion in Ohio with then-presidential candidate Barack Obama in October 2008. When Wurzelbacher questioned Obama on his tax plan for small businesses and individuals, the exchange turned Wurzelbacher into a temporary media sensation at the height of the 2008 presidential campaign.

Nearly four years later, Joe the Plumber was back in the news this week when the Sixth Circuit Court of Appeals affirmed the dismissal of his claim that Ohio state officials had retaliated against him after his discussion with Obama and subsequent interviews.

Wurzelbacher claimed that three high-ranking government employees with the Ohio Department of Job and Family Services authorized improper searches of Wurzelbacher’s name in three statewide databases four days after his exchange with Obama. A subsequent state investigation found that state employees had committed wrongful acts in performing searches without a legitimate state purpose.

Wurzelbacher sued the state officials in U.S. District Court in Columbus, Ohio, alleging First Amendment retaliation and violation of his privacy rights. On Tuesday, the Sixth Circuit Court of Appeals affirmed the dismissal of Wurzelbacher’s claims.

A claim of First Amendment retaliation, as the court pointed out, requires a showing that the plaintiff (1) engaged in protected conduct, (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct, and (3) the adverse action was motivated in part by the plaintiff’s protected conduct.

In Wurzelbacher’s case, the Sixth Circuit determined that Wurzelbacher did not suffer an adverse action as a result of his speech and interactions with Obama. While Wurzelbacher’s name had been improperly searched in state databases, “the complaint contains no information regarding what, if any, information was discovered,” the Court held. “Moreover, if any information was obtained, it was never publicly disclosed.” The Court concluded that Wurzelbacher was not defamed, his economic livelihood was not harmed, nor did he have embarrassing or intimate information about him dispersed to the public.

As for the privacy claim, Wurzelbacher had not pointed to any fundamental liberty interest he had been deprived of as a result of the improper search.

The attorneys of Dalton Tomich, plc, read the opinion of the Sixth Circuit with great interest due to the legal merits of the First Amendment retaliation claim that were evaluated. Dalton Tomich regularly brings suit on behalf of clients alleging First Amendment retaliation and related constitutional torts. In fact, Dalton Tomich will be before the Sixth Circuit Court of Appeals on April 11 asking the Court to uphold the favorable jury verdict the firm won on behalf of a Worth Township couple after a 2010 jury trial in Detroit.

For more information about First Amendment retaliation claims and related constitutional torts, or if you believe you have been deprived of your First Amendment rights, please feel free to contact the experienced constitutional litigators of Dalton Tomich.

To read the entire opinion, click here.


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