HOLZEMER v. CITY OF MEMPHIS

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i-food-equipment#p789509 F.3d at 789 (citation omitted). The Petition Clause protects petitioning of "all departments of the Government," and a private citizen's business interest can be the subject of a constitutionally protected petition. Gable, 201 F.3d at 771; see also E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 139, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) ("A construction of the Sherman Act that would disqualify people from taking a public position on matters in which they are financially interested would . . . deprive the people of their right to petition in the very instances in which that right may be of the most importance to them.").

Admittedly, the context in this case — a private businessman attempting to operate his business within the permit and policy landscape of local government — is one that we rarely encounter. See Thaddeus-X, 175 F.3d at 390 n. 6. In the relatively few cases in which we have addressed Petition Clause retaliation claims, the plaintiffs' petitions generally have triggered some formal mechanism of redress such as a grievance process or lawsuit, while our cases addressing formal and informal verbal complaints traditionally have come before us as Free Speech Clause cases. For example, in Thaddeus-X, we found that a prisoner who filed grievances against prison officials exercised his right to petition. Id. at 395-96 n. 10. And, in Gable, the protected petitioning activity was an "official written complaint" of sex discrimination lodged with a state agency. 201 F.3d at 770. The Supreme Court has found informal letters to the President, a protest including placards and singing, and a publicity campaign "ostensibly directed toward influencing government action" to constitute protected petitioning activity. See McDonald, 472 U.S. at 485, 105 S.Ct. 2787; Noerr, 365 U.S. at 144, 81 S.Ct. 523; United Mine Workers v. Pennington, 381 U.S. 657, 670, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965) (finding that the Petition Clause protects "a concerted effort to influence public officials"); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963) (finding a protest against laws promoting racial discrimination in the State of South Carolina to be protected petitioning activity).

Only two circuits have specifically addressed informal, oral petitions. In Pearson v. Welborn, 471 F.3d 732 (7th Cir. 2006), the Seventh Circuit addressed the issue of oral petitions in the prison context. The Pearson court reasoned:

We are . . . unconvinced that the form of expression — i.e., written or oral — dictates whether constitutional protection attaches. [The defendant] acknowledges that a prison grievance is protected . . . and even goes so far as to admit that Pearson's complaints would likely have been protected if he had reduced them to writing on an official grievance form. But we decline to hold that legitimate complaints lose their protected status simply because they are spoken. Nothing in the First Amendment itself suggests that the right to petition for redress of grievances only attaches when the petitioning takes a specific form.

Id. at 741 (emphasis added); accord Banks v. York, 515 F.Supp.2d 89, 111 (D.D.C. 2007); Palermo v. Coos County Dep't of Corr., No. 08-cv-109-JL, 2008 WL 4200102, at *5 (D.N.H. Sept. 11, 2008). The plaintiffs argue that Pearson should control this case for similar reasons. It is clear that had Holzemer "reduced" his complaint to writing and submitted it to Peete's office or to the city council at large, his request would have been a protected petition for redress. See McDonald, 472 U.S. at 485, 105 S.Ct. 2787 (addressing two letters to the President as petitions). Furthermore, the plaintiffs allege that Holzemer received a call from an MPD officer removing the ban on parking near the Pyramid shortly after his discussion with Peete. Thus, if these facts are true, it appears that Peete treated the request as a petition. Moreover, this kind of informal petitioning is consistent with the Supreme Court's jurisprudence on lobbying and protesting as protected petitioning activity. See Pennington, 381 U.S. at 670, 85 S.Ct. 1585; Noerr, 365 U.S. at 138, 81 S.Ct. 523; Edwards, 372 U.S. at 235-36, 83 S.Ct. 680. Holzemer's request of Peete is merely lobbying on the local level. Holzemer stated, "When we had problems, we would talk to the heads of the city council. . . . We would go and we would talk to the people that ran the city and let them know exactly what was going on."

The Third Circuit has considered oral petitions in the public-employment context. See Foraker v. Chaffinch, 501 F.3d 231 (3d Cir. 2007); San Filippo v. Bongiovanni 30 F.3d 424 (3d Cir. 1994). The San Filippo court distinguished between informal and formal petitions and concluded that "communications that are not petitions" should be addressed under the Free Speech retaliation case law of Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The court stated:

[N]either the United States nor the several states are required to recognize as a "petition" whatever particular communication is so characterized by one who chooses to protest governmental acts or omissions. But when government — federal or state — formally adopts a mechanism for redress of those grievances for which government is allegedly accountable, it would seem to undermine the Constitution's vital purposes to hold that one who in good faith files an arguably meritorious "petition" invoking that mechanism may be disciplined for such invocation by the very government that in compliance with the petition clause has given the particular mechanism its constitutional imprimatur.

San Filippo, 30 F.3d at 442. In a subsequent case, the Third Circuit stated that "[f]ormal petitions are defined by their invocation of a formal mechanism of redress." Foraker, 501 F.3d at 236. The Foraker court also implied in dicta that informal petitions do not enjoy the same degree of the Petition Clause's protection as formal petitions. See id. at 237-38.

Campbell argues that San Filippo and Foraker stand for the principle that a "petition" must invoke some formal grievance mechanism. We disagree. While the San Filippo court holds that once a government entity recognizes a communication as a petition, it is bound to treat it as such, it does not hold the reverse to be law. San Filippo stands for the unsurprising proposition that once formal mechanisms have been employed, they enjoy Petition Clause protection. Moreover, in distinguishing between informal/Free Speech and formal grievances/Petition Clause claims, the Third Circuit relied upon purpose and audience: "[W]hen one files a `petition' one is not appealing over government's head to the general citizenry: When one files a `petition' one is addressing government and asking government to fix what, allegedly, government has broken or has failed in its duty to repair." San Filippo, 30 F.3d at 442 (emphasis added); accord Foraker, 501 F.3d at 237 ("Whereas the Free Speech Clause protects the right to wide-open debate, the Petition Clause encompasses only activity to a government audience. This distinction correlates to the separate analysis for each clause."). Within this framework, Holzemer's request to Peete falls squarely under the protections of the Petition Clause. Holzemer's request was aimed directly at a city councilman and involved no public complaint or statement. Holzemer sought solely assistance in removing the impediments, apparently put in place by the MPD and Permit Office, to conducting his business. According to Holzemer, shortly after he lodged his informal request with Peete, an officer called him to inform him that Downtown Buggy was authorized to access the Pyramid. That is, as alleged, the repair followed the request for a fix. Moreover, the informal nature of Holzemer's petition and the apparent solution is not inconsistent with the informal interactions of local businessmen and local governments. Thus, even under San Filippo and Foraker, Holzemer's request for assistance from Peete falls within the meaning and purpose of the Petition Clause.

Furthermore, San Filippo and Foraker restricted their holdings to the public employment context, in which restrictions on First Amendment retaliation claims have been much more limited due to the government's unique role as employer. See id.;-see also Waters v. Churchill 511 U.S. 661, 674, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) ("[Constitutional review of government employment decisions must rest on different principles than review of speech restraints imposed by the government as sovereign . . . because the speech interferes with the government's operation. Speech by private people can do the same, but this does not allow the government to suppress it."). In Foraker, the court expressed concern about turning all internal informal complaints to supervisors into constitutionally protected speech and found the Foraker petition unprotected because the employee-petitioner had informally complained to his supervisor as his employer rather than " as a governmental agency." 501 F.3d at 247 (emphasis added). In the context of petitioning by a private citizen like Holzemer, this informal up-the-chain-of-command concern is absent and, thus, the formal-grievance requirement is unnecessary. See Gable, 201 F.3d at 771 ("Since the reason for the ["public concern"] test is missing in the present [non-employment] case . . . the test should not be applied here.").

In arguing that the law of this court requires a petition to trigger a formal mechanism for grievances, Campbell also relies heavily upon a recent case of ours that cited Foraker in addressing Ohio's tort of malicious interference with the right to petition the government. See Campbell, 509 F.3d at 776. Although Campbell cited Foraker's discussion of formal mechanisms of redress, the opinion did not outline the scope of the Petition Clause in this circuit because the plaintiffs in that case "did not petition the government and they took no affirmative steps to do so." Id. at 789-90. As the district court in the instant case observed, the Campbell court merely found that "inaction by the plaintiffs could not be protected action and could not be construed as a petition to the government." Slip Op. at 18. Thus we have never held that an individual must trigger a formal mechanism for filing a grievance in order to enjoy the protections of the First Amendment's Petition Clause and we decline to do so today. We hold that Holzemer's request for government assistance was protected petitioning activity.

Because his petitioning fell under the protections of the First Amendment, Holzemer and Downtown Buggy have a right to be free from retaliation for engaging in that protected activity: "[Retaliation by public officials against the exercise of First Amendment rights is itself a violation of the First Amendment." Zilich, 34 F.3d at 364 (citation omitted); see also Smith v. Ark. State Highway Employees Local 1315, 441 U.S. 463, 465, 99 S.Ct. 1826, 60 L.Ed.2d 360 (1979) ( per curiam) (noting that public employees "surely can . . . petition openly, and [be] protected by the First Amendment from retaliation for doing so."). Therefore the plaintiffs' allegations of retaliation, if proven, would constitute a violation of the plaintiffs' constitutional rights.

2.

We must next consider whether Campbell "took an adverse action that would deter a person of ordinary firmness from continuing to engage in that conduct." Siggers-El, 412 F.3d at 699 (citing Thaddeus-X, 175 F.3d at 393). "Whether a retaliatory action is sufficiently severe to deter a person of ordinary firmness from exercising his or her rights is a question of fact." Bell v. Johnson, 308 F.3d 594, 603 (6th Cir. 2002). Our First Amendment retaliation cases demonstrate that the harassment necessary to rise to a level sufficient to deter an individual is not extreme. See Siggers-El, 412 F.3d at 701 ("[S]ince there is no justification for harassing people for exercising their constitutional rights, [the deterrent effect] need not be great in order to be actionable." (citations omitted)). We have held that the adverse-action requirement "is intended to weed out only inconsequential actions, and is not a means whereby solely egregious retaliatory acts are allowed to proceed past summary judgment." Thaddeus-X, 175 F.3d at 398. Therefore, "if a reasonable trier of fact could conclude that a retaliatory act would deter a person from exercising his rights, then the act may not be dismissed at the summary judgment stage." Siggers-El, 412 F.3d at 701 (citation omitted).

The plaintiffs point to three adverse actions taken by Campbell: 1) the statements Campbell made during the raid; 2) Campbell's purposeful delay in granting permit renewals; and 3) Campbell's withholding of exculpatory evidence from the prosecution of Holzemer for vehicle registration violations. Campbell disputes the district court's finding that any of her actions were adverse and argues that the effective closure of Downtown Buggy's operations was caused by actions over which she had no control and in which she did not participate. She argues that it was the felony charges and the confiscation and subsequent destruction of the buggies that rendered Downtown Buggy ineligible for permit renewal. However, we find that, viewing the conflicting facts in the light most favorable to the plaintiffs, there is sufficient evidence to permit a reasonable trier of fact to find that Campbell engaged in delay tactics and hostility toward the plaintiffs and that Campbell's actions could deter a person of ordinary firmness from further exercising his right to petition local government officials.

According to Holzemer's business associate, Brian Reed, Campbell had a conversation with Reed and Holzemer in her office in 2005 during which she told them not to talk to other people in the Permit Office and that she did not care what the state or city council said because she was "like [their] mama" and was the one who made decisions. Reed stated that the permits were only issued after a third meeting with Campbell, this time with an attorney present, and that Campbell's supervisor had issued the permits on that occasion over Campbell's recommendation not to do so. Reed also alleged that, on one visit, Campbell said, "Don't say anything else to me, or I am going to slam you on the floor, handcuff you, and take your (expletive) upstairs kicking and screaming. The best thing for you to do is leave this office and don't say anything else to me." Additionally, Holzemer claims that, after the criminal charges against him were dismissed in late November 2005, "[e]very time [Downtown Buggy] went to talk to Sergeant Campbell . . . she would throw her hands up in the air and make these ridiculous sounds, like ahe, ahe, ahe, and you couldn't talk to her." Such behavior might deter citizens from petitioning city council if petitioning would lead to a failure to obtain necessary renewal permits and the de facto closure of their business. Finally, Campbell's statements during the raid — "as of this point you're officially shut down" and "I told you you would do it to yourself' — were sufficiently hostile, as alleged, to act as a deterrent to further petitioning.

Campbell argues that there was no adverse action because the plaintiffs were not actually deterred from seeking redress. That the plaintiffs themselves were not deterred, without more, is not sufficient to prove a lack of adverse action. We have previously stated that "the issue is whether a person of ordinary firmness would be deterred, not whether the [plaintiff] himself actually was deterred." Harris, 513 F.3d at 519 (citation omitted). Campbell further submits that no adverse action could have been taken because Holzemer was not entitled to a permit renewal and so could suffer no constitutional deprivation by not receiving one. This argument also fails. Although Campbell is correct that Holzemer had no constitutional property interest in the permit because it was a benefit within the city's discretion to grant or deny, see BPNC Inc. v. Taft, 147 Fed. Appx. 525, 530 (6th Cir. 2005), there are constitutional limitations to that discretion:

[The government] may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited.

Rutan v. Republican Party, 497 U.S. 62, 72, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990) (citation omitted). It is for the trier of fact to determine whether Campbell withheld the government benefit of permit renewal based on proper or improper grounds or in any way acted to frustrate the plaintiffs' right to petition the government. We therefore find that, for the purposes of withstanding the motion for summary judgment, the second element of the retaliation claim satisfied.

3.

We now consider whether the alleged adverse action "was taken at least in part because of the exercise of the protected conduct." Siggers-El, 412 F.3d at 699 (citation omitted). We have noted that a "`motivating factor' . . . is one without which the action being challenged simply would not have been taken." Greene v. Barber, 310 F.3d 889, 897 (6th Cir. 2002). The question, then, is whether the plaintiffs presented sufficient evidence to establish an inference that Holzemer's request of Peete was a "motivating factor" in Campbell's alleged harassment and dilatory actions. The district court found that, "[r]eading all facts and drawing all inferences in the light most favorable to Plaintiffs, a reasonable juror could infer from the chronology of events that Campbell knew about and was motivated by Holzemer's conversation with Councilman Peete." Slip Op. at 25. Campbell contends that this inference is too attenuated.

"[P]roof of an official's retaliatory intent rarely will be supported by direct evidence of such intent. . . . Accordingly, claims involving proof of a [defendant's] intent seldom lend themselves to summary disposition." Bloch, 156 F.3d at 682 (quotation marks omitted). Consequently, circumstantial evidence may provide sufficient evidence of retaliatory intent to survive summary judgment. See Harris, 513 F.3d at 519-20. The plaintiffs argue that temporal proximity provides the necessary circumstantial evidence. "In analyzing the facts in temporal proximity cases, we have always looked at the totality of the circumstances to determine whether an inference of retaliatory motive could be drawn." Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392, 401 (6th Cir. 2010). We have found that "the temporal proximity between . . . filing . . . grievances and the [adverse action] provides some circumstantial support for a causal connection" but have been reluctant to find that such evidence without more can demonstrate "that the filing of grievances was a substantial or motivating factor." Smith v. Campbell, 250 F.3d 1032, 1038 (6th Cir. 2001). More recently, in the employment context, we summarized our case law on the weight given to temporal proximity in First Amendment retaliation cases "as recognizing the possibility that, on a particular set of facts, extremely close temporal proximity could permit an inference of retaliatory motive, but also recognizing that often evidence in addition to temporal proximity is required to permit the inference." Vereecke, 609 F.3d at 401.

We find that the plaintiffs produced evidence that, if true, creates an inference that Campbell's hostility and obfuscatory actions toward the plaintiffs arose from Holzemer's decision to bypass the Permit Office and Campbell by going to Peete and other city officials. While temporal proximity is key circumstantial evidence in this case, it is not the only evidence presented by the plaintiffs to support this inference. A rational jury could infer that Campbell's actions constituted retaliation from a combination of the chronological events between 2003 and 2007 — e.g., denying, granting, and again denying access to the Pyramid and, later, the Fedex Forum — and Campbell's alleged statements to Holzemer and Reed during the raid and in Downtown Buggy's interactions with the Permit Office regarding permit renewals.

Campbell argues that she never had knowledge of Holzemer's conversation with Peete, and, therefore, it could not have been a motivating factor for any actions she allegedly took against the plaintiffs. The plaintiffs, however, presented evidence that, if true, demonstrates that Campbell was aware that Holzemer and Downtown Buggy had sought the help of other public officials and was displeased that Holzemer had gone over her head. For example, Reed stated that Campbell warned Downtown Buggy not to contact other city officials about the permit renewal. Additionally, Holzemer continued to contact city officials throughout 2004 and 2005, after his initial conversation with Peete. At one point, Holzemer allegedly received a letter from a city leader commending Downtown Buggy's services to the community and was instructed to take the letter to the Permit Office. While these incidents do not demonstrate that Campbell knew of Holzemer's request of Peete specifically, they do suggest that the Permit Office — and, therefore, Campbell — knew of Holzemer's petitioning activity. Moreover, soon after Holzemer spoke with Peete, Downtown Buggy received permission to operate near the Pyramid. Neither Campbell nor the Permit Office interfered with this arrangement until several months later, when Downtown Buggy was again denied access to profitable downtown locations.

Finally, Campbell argues that she had multiple grounds upon which to deny the plaintiffs a permit based on city ordinances and that these grounds prove that the adverse act of non-renewal would have occurred regardless of any alleged retaliation. The record before us, however, is devoid of any evidence that Campbell actually relied on any of those other, alleged grounds. The issue in a First Amendment retaliation claim is the grounds actually relied upon, not those that might have been relied upon by some other government agent in a similar situation, and plaintiffs need only show that the action was taken "at least in part because of the exercise of the protected conduct." Siggers-El, 412 F.3d at 699. Furthermore, even assuming that the record contained some evidence that non-renewal of the plaintiffs' permit was based solely on their alleged retaliatory actions, such as her involvement in the July raid, the threats alleged in Reed's affidavit, or the refusal to help facilitate permit renewal after November 2005, when all felony charges against Holzemer had been dropped.

In summary, we find that Holzemer's request for help from a city councilman regarding difficulties that he was having operating his business constitutes a "petition" for the purposes of the First Amendment's Petition Clause. We find no distinction between oral and written grievance when what was requested orally would clearly constitute a petition if reduced to writing. Additionally, we find that the plaintiffs produced evidence sufficient, if true, to support a claim of retaliation for exercising that right to petition.

B.

Having found a constitutional violation, we must next determine whether that right was clearly established at the time of the violation, Pearson, 129 S.Ct. at 818, and whether the defendant acted objectively unreasonably "in light of the clearly established constitutional rights," Feathers, 319 F.3d at 848 (citation omitted). "For a right to be clearly established, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Leonard v. Robinson, 477 F.3d 347, 355 (6th Cir. 2007) (citation and internal quotation marks omitted). "A right is clearly established if there is binding precedent from the Supreme Court, the Sixth Circuit, the district court itself, or other circuits that is directly on point." Risbridger v. Connelly, 275 F.3d 565, 569 (6th Cir. 2002) (citation omitted). However, "[t]his is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in light of pre-existing law the unlawfulness must be apparent." Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (quoting Anderson, 483 U.S. at 640, 107 S.Ct. 3034). A public official could "still be on notice that [his] conduct violates established law even in novel factual circumstances." Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). We must determine, therefore, whether a reasonable city official could have believed that retaliating against a local businessman because he sought the help of a local elected official "was lawful, in light of clearly established law and the information the [official] possessed." See Wilson, 526 U.S. at 615, 119 S.Ct. 1692.

We find that the case law of this court and of the Supreme Court demonstrates that the right to petition a local, elected representative for assistance in dealing with local government agencies was clearly established at the time that the relevant events took place and that a reasonable local official would have known that retaliating against a citizen exercising that right is unlawful. Moreover, a reasonable city official would have known that the Constitution prohibits retaliation for a citizen's exercise of his First Amendment right to Free Speech, whether that speech takes written, oral, or another form. See, e.g., Jenkins, 513 F.3d at 588 ("[T]he right to criticize public officials is clearly protected by the First Amendment."); see also Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 89 L.Ed. 430 (1945) ("It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable."). Therefore, Campbell should have known that Holzemer's underlying conversation with Peete — whether it is categorized as protected petitioning or as free speech activity — was an exercise of his First Amendment rights, and, therefore, any retaliation against him for the exercise of those rights would constitute a constitutional violation.

In seeking help from a city councilman, Holzemer's petitioning activity reflects the very origins of the Petition Clause. See Noerr, 365 U.S. at 137, 81 S.Ct. 523 ("In a representative democracy such as this, these branches of government act on behalf of the people and, to a very large extent, the whole concept of representation depends upon the ability of the people to make their wishes known to their representatives."); see also Gable, 201 F.3d at 770-71 ("[Historically the right of `petition' was confined to seeking legislative or judicial relief." (citation omitted)). In Gable, we found that the Supreme Court has recognized the broader scope of the Petition Clause by "clearly establishing] that the submission of complaints and criticisms to nonlegislative and nonjudicial public agencies like a police department constitutes petitioning activity protected by the petition clause." 201 F.3d at 771. We have also determined that, unlike in the public employment context, there is no "public concern" requirement for private citizens who petition their government. Id. at 772. Thus, Campbell should have known that any "submission of complaints or criticisms" to either the Permit Office or to a city councilman in furtherance of a private business interest constitutes constitutionally protected petitioning activity.

Similarly, our case law clearly establishes that Campbell was on notice that retaliation for any petitioning activity is unlawful. Id. ("[G]overnment retaliation for filing a petition violates the literal language of the Petition Clause."); see also Zilich, 34 F.3d at 365 ("The law is well settled in this Circuit that retaliation under color of law for the exercise of First Amendment rights is unconstitutional, and `retaliation claims have been asserted in various factual scenarios.'" (citations omitted)).

Our case law thus demonstrates that the right to petition a local legislative representative for assistance with economic interests was clearly established when Holzemer spoke to Peete about Downtown Buggy's problems. We agree with the Seventh Circuit that "[n]othing in the First Amendment itself suggests that the right to petition for redress of grievances only attaches when the petitioning takes a specific form." Pearson, 471 F.3d at 741. We therefore likewise "decline to hold that legitimate complaints lose their protected status simply because they are spoken" or "that the form of expression — i.e., written or oral — dictates whether constitutional protection attaches." Id.

The Supreme Court has interpreted the Petition Clause to encompass more than a written petition. In Edwards v. South Carolina, the Supreme Court found that a peaceable demonstration that included holding placards and singing triggered the First Amendment's Free Speech, Petition, and Association clauses. 372 U.S. at 235-36, 83 S.Ct. 680. The Court characterized the petitioning activity as "peaceably express[ing] their grievances to the citizens of South Carolina, along with the Legislative Bodies of South Carolina." Id. at 235, 83 S.Ct. 680 (internal quotation marks omitted). Like Holzemer, the Edwards petitioners did not trigger a formal grievance mechanism, nor did they submit a formal written complaint. Nevertheless, they successfully expressed their dissatisfaction with South Carolina's discriminatory laws to the government of South Carolina by placard and by spoken word.

Similarly, Holzemer's petitioning activity is nothing more or less than the local equivalent of lobbying activity that the Supreme Court has repeatedly affirmed as constitutionally protected petitioning activity. In a series of antitrust cases, the Supreme Court held that lobbying and publicity campaigns by industry groups constitutes protected petitioning activity. See Cal. Motor Transp. Co. v. Trucking Unltd., 404 U.S. 508, 510-11, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972) (affirming Noerr and Pennington); Pennington, 381 U.S. at 670, 85 S.Ct. 1585 (finding that the Petition Clause protects "a concerted effort to influence public officials"); Noerr, 365 U.S. at 138, 81 S.Ct. 523 (finding a publicity campaign to influence government constitutes protected petitioning). The Noerr Court found that the "mere solicitation of government action with respect to the passage and enforcement of laws" was petitioning activity not subject to the restrictions of the Sherman Act unless that petitioning was a sham. Id. Requesting help from a city councilman in the enforcement of local permit regulations is the equivalent in the local government context. See also Pearson, 471 F.3d at 741 ("[I]t is possible that J-pod prisoners eschewed the formal grievance process precisely because prison staff welcomed direct complaints. To then hold that those staff have a free pass to retaliate on the basis of such complaints — which would be protected if reduced to writing — makes no sense.").

Therefore, "[n]o reasonable official could possibly believe that it is constitutionally permissible to retaliate" against a private citizen by frustrating the operation of his business simply because he sought help from his locally elected representative. See id. And, no reasonable officer could believe that retaliation for the exercise of a First Amendment right is permitted when that exercise takes the form of speech but is not permitted when the same expression is written. Moreover, even though we have not previously acknowledged the lack of distinction between oral and written petitions in interpreting the scope of the Petitions Clause, the plaintiffs allege a violation of clearly established First Amendment rights under the Free Speech Clause. See Zilich, 34 F.3d at 365 ("The law is well settled in this Circuit that retaliation under color of law for the exercise of First Amendment rights is unconstitutional." (citations omitted)). Therefore, Campbell cannot avail herself of the excuse that just speaking with a public official is not constitutionally protected petitioning activity. Holzemer's underlying conduct — speech — is protected regardless of whether it is categorized as a formal petition or a citizen's free speech. Consequently, officers of reasonable competence in Campbell's shoes would have known that her actions, if as alleged, were unlawful retaliation, and we find that Campbell is not entitled to qualified immunity.

III.

For the foregoing reasons, we affirm the district court's denial of qualified immunity.