Are state actors entitled to petitioning immunity for a First Amendment retaliation claim under 42 U.S.C. § 1983?

QUESTIONS PRESENTED Petitioners, vocal critics of public school teacher unions and the school districts in which they operate, were engaged in First Amendment-protected free speech and petitioning activities when they were sued by the Respondents, an association of public school boards governed by 10 elected public school officials—all state actors—in an objectively baseless lawsuit in state court specifically targeting Petitioners’ free speech and petitioning, with the admitted intention of chilling Petitioners’ exercise of their First Amendment rights. In response, Petitioners filed a federal civil rights action seeking to enjoin the lawsuit and vindicate their First Amendment rights. Petitioners’ evidence was sufficient to establish the three generally accepted elements of a First Amendment retaliation claim under 42 U.S.C. § 1983, ie., (1) constitutionally protected speech and/or conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a “but-for” causal link between the constitutionally protected conduct and the retaliatory action. The state actor Respondents, however, claimed that they were entitled to “NoerrPennington” petitioning immunity for their baseless lawsuit. The District Court agreed, and granted summary judgment to the Respondents. On appeal, the Third Circuit held that state actors may claim constitutional petitioning immunity in filing retaliatory civil lawsuits, but that such protection is lost if the lawsuit is both objectively and subjectively a “sham.” That court agreed that Petitioners had shown the state lawsuit to be objectively baseless, and filed with the intent of chilling Petitioners’ First Amendment speech and activities. Nevertheless, it (i) ll held that Petitioners had failed to show that the lawsuit was a “subjective” sham and affirmed the district court’s refusal to enjoin the baseless and retaliatory lawsuit. The questions presented, therefore, are: 1. Are state actors, acting under color of state law, entitled to claim petitioning immunity from liability for a First Amendment retaliation claim brought under 42 U.S.C. § 1983? 2. If such immunity exists, is a showing that a state actor’s civil lawsuit was (a) objectively baseless, and (b) filed for the purpose and with the intent of chilling First Amendment-protected speech and petitioning activities sufficient to overcome any petitioning immunity claimed by the state actor?