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Take One Step Forward: Federal Courts Continue to Find that Volunteers are Shielded from Retaliation Based on Protected Speech Under the First Amendment

19 Pages Posted: 27 Jun 2012 Last revised: 12 Dec 2012

David A. Grenardo

St. Mary's University School of Law

Samuel D. Davis

King & Spalding

Thomas M. Gutting

King & Spalding

Date Written: September 12, 2011

Abstract

As an issue of first impression in the Fifth Circuit's jurisdiction, a United States district court in Texas considered whether it is impossible to state a claim for speech retaliation which involves the loss of a plaintiff's volunteer ministry rights and credentials. The court, in line with decisions from other federal courts and analogous Supreme Court cases, determined that being a volunteer is the type of governmental benefit or privilege the deprivation of which triggers First Amendment scrutiny, and it held that the volunteer chaplain stated a valid claim for retaliation. This article summarizes the law concerning retaliation against volunteers based on the exercise of their First Amendment rights, as well as analogous Supreme Court law. The article concludes that other federal courts that decide the issue, including the United States Supreme Court, will likely, and should, continue the pattern and decide that volunteers are protected from retaliation based on their exercise of First Amendment rights.

Keywords: speech retaliation, volunteers, First Amendment rights

Suggested Citation

Grenardo, David A. and Davis, Samuel D. and Gutting, Thomas M., Take One Step Forward: Federal Courts Continue to Find that Volunteers are Shielded from Retaliation Based on Protected Speech Under the First Amendment (September 12, 2011). First Amendment Law Review, Vol. 10, No. 1, 2011. Available at SSRN: https://ssrn.com/abstract=2083102

David A. Grenardo (Contact Author)

St. Mary's University School of Law ( email )

1 Camino Santa Maria
San Antonio, TX 78228
United States

Samuel D. Davis

King & Spalding

United States

Thomas M. Gutting

King & Spalding

United States

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