Qualified Immunity for Legislator Speech: No Clearly Established First Amendment “Adverse Action” Rule for a Councilmember’s Defamatory Remark During a Council Meeting

1. Introduction

This appeal arose from a public dispute in Highland Park, Michigan, between former police detective Brian Menge and City Councilmember Khursheed Ash-Shafii. Menge had previously sued the City after an alleged retaliation-driven demotion and later settled with the City. When Menge expressed interest in returning to the police department, Ash-Shafii publicly opposed that effort.

The central factual flashpoint occurred during an April 2023 Highland Park City Council meeting when Ash-Shafii stated that Menge had been “caught stealing” from the City’s forfeiture fund—an accusation the Sixth Circuit accepted as false for purposes of summary judgment. Menge alleged the statement harmed his private-investigation business and sued under 42 U.S.C. § 1983 for First Amendment retaliation (along with other claims).

The key legal issue on interlocutory appeal was narrow: whether Ash-Shafii was entitled to qualified immunity because—assuming the statement could be viewed as retaliatory—existing precedent did not clearly establish that a city councilmember’s defamatory statement during a legislative meeting constitutes “adverse action” for First Amendment retaliation purposes.

2. Summary of the Opinion

The Sixth Circuit reversed the district court’s denial of qualified immunity on Menge’s First Amendment retaliation claim. The court held that, in the specific circumstances presented—a local legislator speaking during an official council meeting and making a false accusation about a former public employee—it was not clearly established that the statement itself amounted to “adverse action” likely to chill protected speech.

The panel also narrowed the case by holding that Menge abandoned any separate First Amendment retaliation theory based on Ash-Shafii’s March 2023 Facebook post, because Menge did not present that post as an independent basis for liability at summary judgment.

3. Analysis

3.1 Precedents Cited

The opinion’s logic is built less on a single controlling retaliation case and more on the absence of sufficiently analogous precedent—especially in the legislative-speech context—combined with background principles suggesting legislators are broadly protected when acting legislatively.

• Bennett v. Hurley Med. Ctr., 86 F.4th 314 (6th Cir. 2023): Used to hold that Menge abandoned any distinct Facebook-post-based retaliation claim by failing to press it at summary judgment. This reinforces a procedural discipline in constitutional tort litigation: theories not advanced in response to summary judgment are forfeited/abandoned.
• DeVooght v. City of Warren, 157 F.4th 893 (6th Cir. 2025) and Johnson v. Russell, 155 F.4th 759 (6th Cir. 2025): Cited for the qualified-immunity framework and the court’s de novo review. DeVooght also supplied the familiar three-part test for First Amendment retaliation.
• District of Columbia v. Wesby, 583 U.S. 48 (2018) and Zorn v. Linton, 146 S. Ct. 926 (2026) (per curiam): These cases drive the panel’s “clearly established” analysis. The court emphasized that the rule must “clearly prohibit” the specific conduct in the “particular circumstances,” and that the constitutional question must be “beyond debate.”
• Stockdale v. Helper, 979 F.3d 498 (6th Cir. 2020): Plays a pivotal role by supplying the court’s method of assessing what a reasonable official would find if they “consulted precedent.” Here, the court reasoned that a councilmember researching liability risks tied to legislative speech would find legislative-immunity cases “most of which favored” the legislator—signaling that liability is not clearly established.
• Bogan v. Scott-Harris, 523 U.S. 44 (1998): Provides the foundational statement that local legislators are “absolutely immune” from § 1983 suits for “legislative activities.” While the panel did not decide legislative immunity, it treated Bogan as part of the legal environment shaping what a reasonable councilmember would think about exposure to suit for statements made during a council meeting.
• Kent v. Ohio House of Representatives Democratic Caucus, 33 F.4th 359 (6th Cir. 2022): Used to link § 1983 legislative immunity to Speech or Debate Clause doctrine, explaining that courts treat these lines of authority “interchangeably” when determining the scope of protection for legislative acts.
• United States v. Brewster, 408 U.S. 501 (1972); Coffin v. Coffin, 4 Mass. 1 (1808); 2 Joseph Story, Commentaries on the Constitution of the United States § 863 (1833); and United States v. Johnson, 383 U.S. 169 (1966): These authorities are invoked to illustrate a long-understood principle: legislative privilege historically tolerates even harsh or defamatory floor speech, leaving sanctions primarily to the political process rather than civil liability. The panel used this tradition to underscore why a retaliatory-liability rule in this setting was not “beyond debate.”
• Finley v. Huss, 102 F.4th 789 (6th Cir. 2024) and Mullenix v. Luna, 577 U.S. 7 (2015) (per curiam): Reinforce that clearly established law generally requires “sufficiently analogous” precedent and must be evaluated in the “specific context of the case.” The absence of a case involving a councilmember’s in-meeting statement was dispositive.
• Wurzelbacher v. Jones-Kelley, 675 F.3d 580 (6th Cir. 2012): Cited for the “ordinary firmness” standard governing whether conduct counts as “adverse action.” The court treated defamation-based “adverse action” as a high bar and demanded precedent showing comparable chilling effect.
• Fritz v. Charter Township of Comstock, 592 F.3d 718 (6th Cir. 2010) and Hilton v. Mish, 720 F. App’x 260 (6th Cir. 2018): Menge’s key reliance was Fritz, where an official pressured a private employer to cut ties with the plaintiff, threatening economic livelihood through repeated calls. The panel distinguished it because Ash-Shafii’s conduct was a single statement without employer-directed coercion; Hilton is used to emphasize the “encouragement of termination” aspect central to Fritz.
• Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998): Distinguished because it involved public disclosure of highly personal, humiliating rape details; the panel found it did not clearly establish that an isolated false theft accusation in a meeting is “adverse action.”
• Barrett v. Harrington, 130 F.3d 246 (6th Cir. 1997): Distinguished because the judge repeatedly amplified false accusations to media outlets, resulting in unfavorable broadcast/print attention. The panel contrasted this with a single statement in the confines of a council meeting.
• Cox v. Ruckel, 2025 WL 2603787 (6th Cir. Sep. 9, 2025): Cited for the proposition that defamation-based “adverse action” presents a “high” bar, supporting the court’s reluctance to treat Ash-Shafii’s statement as clearly established adverse action.

3.2 Legal Reasoning

The court’s reasoning proceeds in three moves.

1. Issue narrowing (abandonment and focus on the council-meeting statement). The panel first removed the Facebook post from the case under Bennett v. Hurley Med. Ctr., ensuring the qualified-immunity inquiry addressed only the April 2023 council-meeting statement.
2. Qualified immunity addressed only at prong two (clearly established law). Ash-Shafii challenged only whether the law was clearly established that his statement constituted “adverse action.” This let the panel decide the appeal as a “purely legal question” (citing DeVooght v. City of Warren) without resolving disputed facts beyond assuming falsity.
3. No clearly established “adverse action” rule for defamatory legislative-session speech. Applying Wesby and Zorn, the panel asked whether existing precedent put “beyond debate” that a reasonable councilmember would understand the Constitution to forbid this conduct as “adverse action.” The court stressed the “particular circumstances”: a local legislator speaking during an official meeting on a matter of public concern (whether a former officer should return), albeit with an allegedly false accusation. The court found:
   • The legislative-immunity tradition (Bogan, Speech or Debate analogues via Kent, and historical sources like Brewster and Coffin) would lead a reasonable councilmember to believe that floor speech—even sharp or defamatory—does not expose them to civil liability, making retaliatory liability “far from clearly established.”
   • Menge’s cited retaliation cases did not match the context or the severity/amplification necessary to establish “adverse action” beyond debate: Fritz involved coercive economic threats to a third-party employer; Barrett involved repeated media amplification; Bloch involved exposure of extremely intimate and humiliating rape details.
   • Because the caselaw did not clearly establish that this lone in-meeting statement would chill a person of ordinary firmness, qualified immunity applied.

3.3 Impact

The opinion’s practical effect is to make First Amendment retaliation claims harder to maintain where the alleged “adverse action” is speech by a legislator during a legislative session, particularly when:

• the challenged conduct is a single statement rather than repeated or amplified accusations;
• there is no coercive governmental pressure directed at third parties (e.g., employers, licensing bodies);
• the plaintiff relies on retaliation cases arising outside a legislative-session setting.

More broadly, the decision signals that the “clearly established” analysis may be shaped by background doctrines (like legislative immunity) even when the court does not formally decide that immunity applies—because those doctrines influence what a “reasonable official” would think the law permits.

Finally, by emphasizing abandonment at summary judgment, the case underscores that plaintiffs must clearly present each factual basis for each constitutional theory at the correct procedural stage, or risk losing it on appeal.

4. Complex Concepts Simplified

• Qualified immunity: A protection for government officials sued for damages under § 1983. Even if the plaintiff plausibly alleges a constitutional violation, the official is immune unless the unlawfulness was clearly established at the time.
• “Clearly established” law: Not a general statement of rights (“retaliation is unlawful”), but a rule that clearly applies to the specific context. Courts ask whether precedent placed the issue “beyond debate.”
• First Amendment retaliation / “adverse action”: The plaintiff must show the defendant took action that would likely chill a person of “ordinary firmness” from continuing protected speech. Mere criticism is often not enough; the inquiry is context-specific.
• Legislative immunity / Speech or Debate principles: Legislators are often absolutely protected from civil liability for acts within the sphere of legitimate legislative activity. Historically, this protection has been understood to cover robust—and sometimes defamatory—floor speech, with remedies left to political checks rather than lawsuits.
• Abandonment at summary judgment: If a party does not press an argument or theory in response to summary judgment, appellate courts may treat it as abandoned and not consider it.

5. Conclusion

Brian Menge v. Khursheed Ash-Shafii holds that a city councilmember was entitled to qualified immunity because it was not clearly established that a false, defamatory accusation made during an official council meeting constitutes “adverse action” for First Amendment retaliation. The Sixth Circuit’s approach is notable for (1) demanding close factual analogy in retaliation precedents when the alleged adverse action is speech, and (2) treating the long shadow of legislative-immunity doctrine as a powerful indicator that liability in the legislative-session context is not “beyond debate.”