Campbell v. Pa. Sch. Boards Ass'n

• Citation: 972 F.3d 213
• Decision Date: 27 August 2020
• Docket Number: No. 18-3112,18-3112
• Parties: Simon CAMPBELL; Pennsylvanians for Union Reform, Appellants v. PENNSYLVANIA SCHOOL BOARDS ASSOCIATION ; Michael Faccinetto, solely in his individual capacity; David Hutchinson; solely in his individual capacity; Otto W. Voit, III, solely in his individual capacity; Kathy Swope, solely in her individual capacity; Lawrence Feinberg, solely in his individual capacity; Eric Wolfgang, solely in his individual capacity; Daniel O'Keefe, solely in his individual capacity; Darryl Schaefer, solely in his individual capacity; Thomas Kerek, solely in his individual capacity; and Lynn Foltz, solely in her individual capacity
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

972 F.3d 213

Simon CAMPBELL; Pennsylvanians for Union Reform, Appellants

v.PENNSYLVANIA SCHOOL BOARDS ASSOCIATION ; Michael Faccinetto, solely in his individual capacity; David Hutchinson; solely in his individual capacity; Otto W. Voit, III, solely in his individual capacity; Kathy Swope, solely in her individual capacity; Lawrence Feinberg, solely in his individual capacity; Eric Wolfgang, solely in his individual capacity; Daniel O'Keefe, solely in his individual capacity; Darryl Schaefer, solely in his individual capacity; Thomas Kerek, solely in his individual capacity; and Lynn Foltz, solely in her individual capacity

No. 18-3112

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit L.A.R. 34.1a May 20, 2019

Filed: August 27, 2020

Jacob C. Cohn, Eric C. Rosenberg, Ilan Rosenberg, Joshua Slavitt, Gordon Rees Scully Mansukhani, Three Logan Square, 1717 Arch Street, Suite 610, Philadelphia, PA 19103, Mary Catherine Roper, American Civil Liberties Union of Pennsylvania, P.O. Box 60173, Philadelphia, PA 19102, Counsel for Appellants

David W. Brown, Craig D. Ginsburg, Michael I. Levin, Levin Legal Group, 1800 Byberry Road, 1301 Masons Mill Business Park, Huntingdon Valley, PA 19006, Counsel for Appellees

Before: McKEE, SHWARTZ, and FUENTES, Circuit Judges.

OPINION

McKEE, Circuit Judge.

In this dispute over dueling claims to Noerr - Pennington immunity, Simon Campbell and his organization, Pennsylvanians for Union Reform (collectively, "Campbell"), allege that the Pennsylvania School Boards Association and its Board Members (collectively, "PSBA") violated Campbell's civil rights by suing him in state court (the "State Suit"). That complaint asserted various tort claims against Campbell based on his persistent use of Pennsylvania's Right to Know laws. According to PSBA's State Suit allegations, Campbell's relentless pursuit of information about PSBA, and his related conduct, was an abuse of the Right to Know statute intended solely to harass PSBA. At that time, Campbell defended against the State Suit by arguing his conduct was constitutionally protected under the Noerr - Pennington doctrine.

Now Campbell sues, seeking damages under 42 U.S.C. § 1983, alleging that the State Suit was intended as retaliation. PSBA defends against Campbell's civil rights claims by itself invoking Noerr - Pennington . It argues the First Amendment shields its right to sue in state court. The District Court agreed with PSBA and granted its motion for summary judgment.

We conclude that the District Court erred in requiring a heighted burden of proof on PSBA's motives in bringing its tort claims in state court. However, because we find that Campbell's civil rights claim would fail under any standard of proof, we agree that PSBA is entitled to judgment as a matter of law and will therefore affirm.¹

I.

Simon Campbell is an active and persistent user of the Pennsylvania Right to Know Law ("RTKL"), which permits citizens to obtain certain information from the state government and its agencies.² In recent years, he has submitted hundreds of requests to public school agencies across the Commonwealth. Many of the recipients are members of the PSBA. The PSBA is a non-profit association created by Pennsylvania's school districts "to further the interests of public education and to provide assistance to public school entities."³ A majority of school boards in the state are members, and the organization's roots stretch back to the 19^th century.⁴

Campbell founded Pennsylvanians for Union Reform ("PFUR") in 2013 to "eliminate compulsory unionism in Pennsylvania while promoting transparency and efficiency in government for taxpayers."⁵ In pursuing those goals, PFUR has energetically utilized the Commonwealth's RTKL to obtain records from PSBA's constituent school districts and other government entities. In the process, it has litigated cases that have expanded the reach of that law.⁶

In March 2017, PFUR turned its attention to the PSBA by sending RTKL requests to "most, if not all, public school agencies" in Pennsylvania.⁷ These requests sought contact information for district employees and union representatives. PSBA's attorney, Emily Leader, responded by advising member school districts that they were required to release publicly available information, but they did not have to provide PFUR with private data such as personal email addresses.⁸ PSBA later advised school districts that, although they were legally required to collate the requested information, they could simply make the results "available for pickup at the district offices," rather than forwarding it to PFUR. It also presciently informed its members that this relatively uncooperative approach might lead to litigation.⁹

When Campbell received copies of the PSBA's legal guidance, he established a page on the PFUR website entitled "PSBA Horror" with a mocking photograph of PSBA Executive Director Nathan Mains. The photograph included a word bubble which read: "Taxpayers, thanks for the $226,000 and the public pension! Now * * * * off, and drive to the school district if you want public records. And don't forget your check book."¹⁰ Campbell had also requested PSBA's tax returns. When Michael Levin, PSBA's outside counsel, provided a link to those returns, Campbell caustically told Levin to "stay out of my business whenever I'm approaching one of your public entity clients." Levin responded by threatening to sue Campbell for defamation.¹¹

Campbell soon poured gasoline on this burgeoning feud by submitting a second wave of RTKL requests in May. Approximately 600 school boards across Pennsylvania received an identical 17-page request asking their respective districts to provide 27 different types of documentation regarding their relationship with PSBA.¹² More than 240 of the school districts turned to PSBA for assistance in assembling that information. This overwhelming stream of requests led PSBA to adopt a policy of providing what it viewed as the minimum legally required response.¹³ Levin also sent Campbell a demand that he take down the picture of Executive Director Mains. Campbell complied, but replaced it with an illustration of PSBA alongside a message similar to the original text.¹⁴ Campbell also established a new website with his personal funds, www.psbahorror.com. He filled it with his anti-PSBA messaging through writing and videos he posted online.¹⁵

Nathan Mains eventually told PSBA's legal team that he wanted to sue Campbell for damaging PSBA's reputation.¹⁶ In June 2017, the PSBA Board voted unanimously to sue Campbell and the resulting state tort action was filed the following month alleging defamation, tortious interference with contractual relations, and abuse of process.¹⁷

PSBA's then-president testified that the State Suit was filed to "stop" PFUR from "harassing districts with ... unreasonable request[s] [and] to stop defaming members of the organization."¹⁸ Mains announced the suit in an email to all PSBA members.¹⁹ Later that year, Campbell and PFUR removed all of the challenged content from their websites and stopped sending RTKL requests.²⁰

In February 2018, as the State Suit proceeded, Campbell filed this action against PSBA and ten members of its board. His complaint alleges that PSBA's State Suit was motivated by an improper desire to retaliate against him for proper RTKL requests in violation of his First Amendment rights. Campbell seeks injunctive relief, as well as compensatory and punitive damages.²¹

PSBA moved for summary judgment. Its motion advanced multiple arguments, but we must consider only the claim that Noerr - Pennington doctrine shields PSBA from liability for filing the State Suit. The District Court agreed with this position and held that both Campbell's RTKL requests and PSBA's subsequent state tort claims were protected under Noerr - Pennington .²² The Court found that PSBA's State Suit claims were objectively baseless. As we discuss later, this satisfied the first requirement for lifting Noerr - Pennington immunity. However, the District Court held that there was not clear and convincing evidence that the suit was "subjectively baseless."²³ Accordingly, the Court granted PSBA's motion for summary judgment and dismissed Campbell's civil rights claim without reaching the remaining contentions.

This appeal followed.²⁴

II.

We review this summary judgment decision de novo , mindful of the special care called for by these issues of "free expression."²⁵ As we noted at the outset, both sides seek shelter under Noerr - Pennington immunity. That doctrine shields constitutionally protected conduct from civil liability, absent certain exceptions.²⁶ Specifically, the doctrine's protective umbrella does not extend to "sham" suits, which seek to take advantage "of governmental process —as opposed to the outcome of that process—as an anticompetitive weapon."²⁷ The parties’ competing claims to Noerr - Pennington protection can more easily be resolved if we first examine the origins and history of the doctrine.

A) Origins of Noerr-Pennington

"The Noerr – Pennington doctrine takes its name from a pair of Supreme Court cases that placed a First Amendment limitation on the reach of the Sherman Act."²⁸ In Noerr ,²⁹ railroad companies, fearful of the growing power of the trucking industry, sought to use their considerable resources to encourage adoption of laws and regulations that would encumber truckers. The truckers responded by suing the railroad companies for violation of the Sherman and Clayton Anti-Trust Acts.³⁰ The case reached the Supreme Court, which held that the railroads’ First Amendment rights to petition the government must override statutory limitations on anticompetitive behavior. The Court explained: "The right of petition is one of the freedoms protected by the Bill of Rights, and we cannot, of course, lightly impute to Congress an intent to invade these freedoms."³¹ The Court soon extended this protection to efforts to influence...