First Amendment Shield, Not Sword: Protected Petitioning Cannot Supply the Overt Act in § 1983 Conspiracies—Yet May Evidence Agreement; and Government Litigation and Nonviolent “Threats” Are Not Clearly Established Retaliation

Introduction

This appeal arises out of a bitter, years-long local dispute in Lewis County, Kentucky, over access to the historic Cabin Creek Covered Bridge. After Carrie Cox and Guy Meade purchased and restored a long-abandoned property abutting the old approach road to the bridge, conflict with neighbors and officials erupted over parking, access, and the status of a vestigial county road and related easements. Cox spoke at a county fiscal court meeting; thereafter, she and Meade alleged that county officials and private community members retaliated for her speech in violation of the First Amendment and conspired to do so in violation of 42 U.S.C. § 1983.

The district court dismissed conspiracy claims against private citizens at the pleading stage and granted summary judgment to public officials on qualified immunity, also striking a late-filed declaration under the sham-affidavit rule and rejecting a request for adverse spoliation inferences regarding a former judge executive’s county email. The Sixth Circuit affirmed across the board.

The opinion breaks meaningful ground in three places:

It clarifies the interplay between the First Amendment and § 1983 conspiracy: constitutionally protected petitioning/speech cannot itself be the “overt act” in a conspiracy, but it can be used as evidence of an unlawful agreement.
It reinforces that nonviolent, non-economic “threats,” informational press statements, and government-initiated litigation in a bona fide property dispute do not violate clearly established First Amendment retaliation law.
It applies Rule 37(e)’s intent requirement for severe ESI spoliation sanctions and underscores disciplined use of the sham-affidavit rule, including where a party attempts to introduce a spouse’s late-filed testimony to backfill gaps.

Summary of the Opinion

The Sixth Circuit (Judge Nalbandian, joined by Judges Thapar and Davis) affirmed:

Pleading stage (private citizen defendant Wallingford): Dismissal of the § 1983 conspiracy claim was proper. While Wallingford’s op-ed and meeting attendance were protected First Amendment activity (and thus could not be the conspiracy’s overt act), protected speech could, in theory, evidence agreement. Even so, the complaint failed to plausibly allege Wallingford’s participation in any unlawful agreement under Twombly/Iqbal.
Sham-affidavit ruling: The district court did not abuse its discretion by striking Meade’s late declaration (purporting to add detail about Cox’s post-recording statements at the fiscal court meeting). The declaration appeared to manufacture a factual dispute after summary-judgment briefing and, contextually, functioned as a “stalking horse” for testimony Cox herself could not supply without triggering the sham-affidavit doctrine.
Spoliation: No adverse inference or similar sanction was warranted for the loss of the former judge executive’s county email account. Under Rule 37(e), severe sanctions require an intent to deprive; negligence alone did not justify a rebuttable presumption or negative inference.
Qualified immunity (public officials Ruckel and Thomas): Assuming protected conduct (Cox’s speech at the fiscal court meeting), no “adverse action” here violated clearly established law. Specifically:
- Obtaining and publicizing a parking easement consistent with an earlier survey and long-understood public use was not actionable retaliation, and any constitutional violation would not be clearly established.
- Press statements describing property boundaries and the existence of an easement were not defamatory or harassing in the constitutional sense.
- An alleged warning to “open the road” if the dispute continued did not amount to a physical threat or a threat to livelihood as required in this circuit.
- Voting to initiate a quiet-title action amid a genuine property dispute did not violate clearly established law and, in any event, represents petitioning activity generally protected by the Noerr-Pennington doctrine unless baseless.
Conspiracy (officials): With the underlying retaliation claims failing, the conspiracy claims necessarily failed for lack of probative evidence of an agreement and overt acts in furtherance.

Analysis

Precedents Cited and Their Influence

§ 1983 Conspiracy Elements: Hooks v. Hooks, 771 F.2d 935 (6th Cir. 1985) provided the three-part test (single plan, shared objective, overt act causing injury). This framework governed both the private-citizen pleading and public-official summary judgment analyses.
Pleading Standards: Bell Atlantic v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) required more than parallel conduct or conclusory allegations. The court emphasized that friendship, attendance at a meeting, and a favorable op-ed did not plausibly allege Wallingford’s agreement to retaliate.
First Amendment Petitioning (Noerr-Pennington):
- Noerr and Pennington (365 U.S. 127; 381 U.S. 657) originated the doctrine in antitrust; Sixth Circuit precedent (Knology, Inc. v. Insight Communications, 393 F.3d 656) recognizes its application to § 1983.
- Eaton v. Newport Bd. of Educ., 975 F.2d 292 (6th Cir. 1992) confirmed immunity for petitioning/speech absent sham.
- City of Columbia v. Omni Outdoor Advertising, 499 U.S. 365 (1991) articulated the “sham” limitation.
- The panel drew on other circuits to underscore that government officials’ own litigation can be protected petitioning (B&G Foods N. Am. v. Embry, 29 F.4th 527 (9th Cir. 2022); Mariana v. Fisher, 338 F.3d 189 (3d Cir. 2003); New West L.P. v. City of Joliet, 491 F.3d 717 (7th Cir. 2007)).
Protected Speech as Evidence, Not Liability: Erie County v. Morton Salt, 702 F.3d 860 (6th Cir. 2012) (antitrust) and United States v. Xu, 114 F.4th 829 (6th Cir. 2024) supplied the principle that lawful acts can support an inference of unlawful agreement even if they cannot themselves be the basis of liability.
Sham-Affidavit Rule: Reid v. Sears, Roebuck & Co., 790 F.2d 453 (6th Cir. 1986) and Aerel, S.R.L. v. PCC Airfoils, 448 F.3d 899 (6th Cir. 2006) set the rule and factors; Johnson v. Ford Motor Co., 13 F.4th 493 (6th Cir. 2021), Boykin v. Family Dollar, 3 F.4th 832 (6th Cir. 2021), and Reich v. City of Elizabethtown, 945 F.3d 968 (6th Cir. 2019) refined its application.
Spoliation and ESI: Adkins v. Wolever, 554 F.3d 650 (6th Cir. 2009) (en banc) and Yoder & Frey v. EquipmentFacts, 774 F.3d 1065 (6th Cir. 2014) set sanction standards; Fed. R. Civ. P. 37(e) requires “intent to deprive” for adverse inferences; Automated Solutions Corp. v. Paragon Data Systems, 756 F.3d 504 (6th Cir. 2014) sets sanction range; Beaven v. DOJ, 622 F.3d 540 (6th Cir. 2010) discusses culpability gradations.
First Amendment Retaliation: Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999) (en banc) established the three-part test (protected conduct, adverse action, causation). Jenkins v. Rock Hill, 513 F.3d 580 (6th Cir. 2008) clarified that the “public concern” test is limited to public-employee cases; Holzemer v. City of Memphis, 621 F.3d 512 (6th Cir. 2010) confirmed that in-person requests to officials can be petitioning.
Qualified Immunity: Harlow v. Fitzgerald, 457 U.S. 800 (1982); Pearson v. Callahan, 555 U.S. 223 (2009) (sequencing discretion); White v. Pauly, 580 U.S. 73 (2017) (no high-level generality); Hope v. Pelzer, 536 U.S. 730 (2002) (fair warning); MacIntosh v. Clous, 69 F.4th 309 (6th Cir. 2023) (specificity); Finley v. Huss, 102 F.4th 789 (6th Cir. 2024) (no overgeneralized rights).
Defamation/Harassment Thresholds: Fritz v. Charter Twp. of Comstock, 592 F.3d 718 (6th Cir. 2010) (high bar for defamatory harassment as adverse action); Mezibov v. Allen, 411 F.3d 712 (6th Cir. 2005) (avoid trivializing the First Amendment); Zilich v. Longo, 34 F.3d 359 (6th Cir. 1994) (physical threats plainly unconstitutional); Spithaler v. Smith, 803 F. App’x 826 (6th Cir. 2020) (unpublished: only “sufficiently serious” harassment counts).
Retaliatory Lawsuits: Benison v. Ross, 765 F.3d 649 (6th Cir. 2014) (employer’s suit to recoup compensation can deter protected speech in an employment context); Dye v. Racing Comm’n, 702 F.3d 286 (6th Cir. 2012) (loss of key employment benefits as adverse action).
Summary Judgment Conspiracy Proof: Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); Anderson v. Liberty Lobby, 477 U.S. 242 (1986) (probative evidence required); Bazzi v. City of Dearborn, 658 F.3d 598 (6th Cir. 2011) (speculation insufficient); Yancey v. Carroll Cnty., 876 F.2d 1238 (6th Cir. 1989) (no dispute where uncontested facts show no conspiracy).

Legal Reasoning

1) Protected Speech and § 1983 Conspiracy

The panel draws a crucial distinction: First Amendment-protected acts (attending a public meeting, publishing an op-ed, petitioning officials) cannot themselves be the “overt act” that forms civil conspiracy liability under § 1983. Imposing liability for such speech would penalize constitutionally protected expression and contravene the Noerr-Pennington doctrine (as extended in Sixth Circuit practice to § 1983 contexts).

Yet the court also stresses that protected speech is not evidentiary kryptonite. Lawful acts—such as op-ed advocacy—can support an inference of an unlawful agreement when combined with other nonconclusory facts. The complaint here, however, pled little more than friendship, indignation, and public commentary—classic “parallel conduct” inadequate under Twombly/Iqbal to cross the plausibility threshold.

2) Sham-Affidavit Doctrine Applied to a Spouse’s Late Declaration

Meade’s post-briefing declaration purported to add the precise content of Cox’s post-recording remarks at the fiscal court meeting. The court treated the sham-affidavit doctrine flexibly: while the declaration did not squarely contradict earlier deposition testimony (hence the classic three-factor test was inconclusive), the surrounding circumstances—especially that Cox herself could not remember making the statement, and Meade had earlier professed memory difficulties—signaled an effort to “manufacture” a dispute. The district court’s decision to strike was therefore within its discretion.

3) ESI Spoliation and Adverse-Inference Sanctions

Because Rule 37(e)(2) requires “intent to deprive” for severe sanctions like adverse inferences, negligent failure to preserve the judge executive’s county email account could not justify the rebuttable presumption plaintiffs sought. The panel affirmed that remedial measures must be proportionate and that severe sanctions are not a windfall for the requesting party in the absence of intent.

4) Qualified Immunity: No Clearly Established Retaliation

Assuming Cox’s speech at the fiscal court meeting was protected, the panel held that none of the challenged actions by Judge Executive Ruckel or Magistrate Thomas violated clearly established law:

Parking easement acquisition and publicity: Ruckel acted under a reasonable understanding (based on a 2007 survey) of property boundaries and long-standing public use. Even if one disagreed with that view, the cases cited did not clearly establish that such conduct was retaliatory adverse action.
Press statements: Confirming survey lines and noting a parking easement fell far short of constitutionally cognizable defamation/harassment. The Sixth Circuit’s bar for such claims is high.
Alleged “threat” to open the road: The court limited actionable threats to those involving physical danger or serious economic hardship. Opening a road in contested property circumstances—without insinuations of violence—did not fit that category, nor was it clearly established as unlawful in the retaliation context.
Quiet-title litigation: Voting to bring a quiet-title action amidst a genuine survey dispute is a core governmental function, not per se retaliation. The opinion also underscored that filing suit is petitioning activity shielded by Noerr-Pennington unless the litigation is baseless—something not shown here.

With no actionable adverse action, causation and clearly established law could not carry plaintiffs past qualified immunity.

5) Conspiracy Against Officials Fails Without the Underlying Violation

Because the underlying retaliation claims fell short, the conspiracy claims likewise failed for want of probative evidence of a conspiratorial agreement and a qualifying overt act. Summary judgment was appropriate where the record invited only speculation rather than reasonable inference.

Impact

Doctrinal clarification on § 1983 conspiracy: The opinion crisply separates the role of protected speech. It cannot be the overt act (no liability for the speech itself), but it can be evidence of agreement when coupled with other concrete facts. Plaintiffs should plead and develop specific, nonconclusory “connective tissue” showing cooperation and shared unlawful objectives.
Practical insulation for public-official litigation and policy moves: When officials litigate bona fide disputes or pursue policy compromises grounded in colorable property or regulatory interpretations, qualified immunity will often apply—especially absent clearly established law on those specific actions. Noerr-Pennington provides additional protection against recharacterizing official litigation as retaliation.
Retaliation “adverse action” remains cabined: The Sixth Circuit continues to police the boundary between true constitutional injury and mere political or civic rough-and-tumble. Press statements, nonviolent non-economic warnings, and ordinary governance steps typically will not satisfy the adverse-action prong, absent aggravating circumstances.
Evidence management lessons:
- Parties should anticipate Rule 37(e)’s intent standard: to obtain adverse inferences for lost ESI, proof of intentional deprivation—beyond negligence—is critical.
- Late-breaking affidavits face heightened scrutiny. Litigants should avoid using new declarations to contradict or “fill in” earlier testimony; courts may strike them, especially where the declarant is not the best witness and the timing suggests gamesmanship.
Pleading conspiracy after Twombly/Iqbal: Mere association, parallel advocacy, or public commentary—even if emotionally charged—is insufficient. Plaintiffs should marshal concrete facts (communications, coordinated steps, explicit asks, or nonpublic exchanges) linking the alleged conspirators to a shared unlawful objective.

Complex Concepts Simplified

Noerr-Pennington doctrine: A principle that you generally cannot be sued for asking the government to act (or for filing a non-baseless lawsuit), because petitioning is protected by the First Amendment. This protection extends to § 1983 claims and, as other circuits recognize and this opinion suggests, to government actors’ own litigation activities when not sham or baseless.
§ 1983 civil conspiracy: A claim that multiple people agreed to violate a constitutional right and took steps to carry out that plan. You must show a plan, a shared unlawful objective, and an act that advanced the plan and caused harm. Lawful public speech cannot be that act, although it can be circumstantial evidence of the plan if accompanied by other facts.
Sham-affidavit rule: After depositions, a party cannot defeat summary judgment by filing a new affidavit that contradicts earlier sworn testimony without adequate explanation. Courts look at contradictions, timing, whether the issue was covered earlier, and whether the affidavit clarifies or reshapes the story.
Rule 37(e) spoliation (lost ESI): When electronically stored information is lost because reasonable preservation steps weren’t taken, courts can impose remedies. But the harshest penalties—like telling a jury to presume the missing evidence would have hurt the destroyer—require proof the loss was intentional, not merely negligent.
First Amendment retaliation “adverse action”: Not every unpleasant action by an official counts. Courts ask whether an ordinary person would be deterred from speaking by the action. Physical threats or serious economic threats typically qualify; informational statements or policy steps, without more, typically do not.
Qualified immunity: Public officials are shielded from damages unless their conduct violated a constitutional right that was clearly established at the time. “Clearly established” means that existing law placed the issue beyond debate in a specifically analogous context, not at a high level of generality.

Conclusion

Cox v. Ruckel is a careful, context-driven reaffirmation of First Amendment and qualified immunity principles in a highly localized property-access dispute. The Sixth Circuit underscores that:

Protected speech and petitioning cannot themselves be the overt acts that create civil-conspiracy liability under § 1983—though such speech can support an inference of unlawful agreement when paired with concrete facts.
Absent clearly established precedent, ordinary governmental actions—including filing a quiet-title suit in the face of a genuine property dispute, publicizing survey-based boundaries, or making nonviolent, non-economic warnings—do not constitute actionable First Amendment retaliation.
Litigants seeking severe spoliation remedies for missing ESI must prove intent to deprive, and parties cannot salvage weak records through late, strategically timed affidavits that functionally contradict earlier testimony.

Although “not recommended for publication,” the opinion offers a valuable template for evaluating First Amendment retaliation and conspiracy claims where public debate, citizen advocacy, and government problem-solving intertwine. It provides clear guidance for plaintiffs on pleading specificity and evidentiary rigor, and for public officials on the contours of protected petitioning, permissible public communications, and the limits of what counts as retaliatory “threats.” In the end, the court insists on real injury, clear agreement, and concrete facts—guardrails that preserve robust public discourse while protecting constitutional rights.