In Naffe v. Frey, published June 15, 2015, the 9th Circuit Court of Appeals affirmed a district court decision dismissing the portion of a complaint asserting a claim under 42 U.S.C. section 1983 against a deputy district attorney for allegedly violating the plaintiff's free-speech rights under the 1st Amendment. The plaintiff and defendant are both well-known conservative political commentators. The defendant allegedly wrote unfavorable articles about the plaintiff on his blog, and allegedly tweeted harassing and threatening messages about her on his personal Twitter account. The blog posts allegedly revealed private information about the defendant, including her Social Security number. In one Tweet, the defendant allegedly insinuated the plaintiff violated the law. The plaintiff alleged that the defendant acted under color of state law because he abused his position as deputy district attorney by making the posts.
The 9th Circuit ruled that the complaint failed to allege facts establishing that the defendant acted under color of state law. A state employee who is off duty acts under color of state law when (1) the employee purports to or pretends to act under color of law; (2) his pretense of acting in the performance of his duties had the purpose and effect of influencing the behavior of others; and (3) the harm inflicted on the plaintiff related in some meaningful way either to the officer's governmental status or to the performance of his duties. He does not act under color of state law when he pursues private goals via private actions. Under this test, the defendant did not act under color of state law. His duties as prosecutor did not include publicly commenting about conservative politics or current events. No facts alleged indicated that his employer authorized or encouraged his commentary. He used his personal blog and Twitter feed, which included disclaimers that he did not make any comments on behalf of his employer. He did not blog during business hours, or use his employer's resources. His comments did not sufficiently relate to his work as a prosecutor to constitute state action. He did not investigate or prosecute the plaintiff. Rhetorical questions about whether the plaintiff committed a crime do not crate a nexus between the comments and his job. The facts also did not establish that the defendant purported or pretended to act under color of state law. Drawing on his experiences as a prosecutor to inform his blog posts and tweets did not transform his private speech into public action. The fact that the plaintiff knew the defendant was a prosecutor also was insufficient.
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