Washington, DC — When does a private company get to hide behind the same legal shield that protects government officials from civil rights lawsuits? That question sits at the heart of DeLanis v. Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., which the Institute for Free Speech has now asked the Supreme Court to review.
The Institute filed a petition urging the Court to consider the case of Jim DeLanis, who spent nearly 40 years as an attorney at Baker Donelson, one of Tennessee’s largest law firms. DeLanis also served on the Davidson County Election Commission, where his official duties put him at odds with Nashville’s city government over a controversial property tax referendum.
Displeased by that opposition, the city pressured Baker Donelson—which held lucrative city contracts—to rein in DeLanis. When the firm’s pressure campaign failed to change DeLanis’s vote, Baker Donelson fired him.
DeLanis sued the city, city councilman Robert Mendes, and Baker Donelson. The Sixth Circuit agreed that Mendes had violated DeLanis’s clearly established First Amendment rights by orchestrating the pressure campaign.
However, the same court granted qualified immunity to Baker Donelson, even though the firm executed the retaliation. The majority reasoned that no prior precedent clearly established that a private law firm violates the First Amendment when it fires an employee in response to a government threat to its business.
The result, as a dissenting Sixth Circuit judge noted, contradicts itself: Baker Donelson was treated as a government actor to claim qualified immunity, then treated as a private party when deciding whether its conduct violated clearly established law.
The Institute’s petition asks the Supreme Court to resolve this inconsistency and repair a circuit split that leaves the law unsettled across the country. The First, Fourth, Seventh, and Eleventh Circuits have all held that private parties are not immune from lawsuits when they violate someone’s rights to advance their own financial interests. The Sixth Circuit’s decision cuts the opposite way.
“The Supreme Court has repeatedly explained that qualified immunity only exists to protect people doing the government’s work,” said Institute for Free Speech Senior Attorney Brett Nolan, lead counsel in the case. “Baker Donelson wasn’t doing Nashville’s work when it fired Jim DeLanis—it was protecting its own business. Extending qualified immunity to cover that kind of purely private decision takes a doctrine that is already stretched too far and stretches it further still.”
The petition argues that the Supreme Court’s controlling precedent, Filarsky v. Delia (2012), makes clear that qualified immunity only extends to private parties working for the government “in pursuit of government objectives,” not to those acting for their own benefit. Nashville didn’t hire Baker Donelson to manage DeLanis’s vote. It threatened the firm’s unrelated business to coerce compliance.
As the petition highlights, that’s coercion, not private contracting, and qualified immunity shouldn’t apply.
To read the Institute for Free Speech’s cert petition in DeLanis v. Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., click here. To read more about the case and access all filings, see the Institute’s case page here.
About the Institute for Free Speech
The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment.
