A federal appeals court has reversed, in part, a decision dismissing a lawsuit against the City of West Des Moines alleging First Amendment retaliation and defamation.
The U.S. Court of Appeals for the Eighth Circuit has reversed a district court’s dismissal of The Conley Group’s claims against the city for First Amendment retaliation and tortious interference with a contract, sending the case back to district court. The appellate court affirmed the dismissal of company CEO Tom Conley’s claims for First Amendment retaliation and defamation.
The appeals court also directed the district court to modify its dismissals on Tom Conley’s claims to be without prejudice, clearing the way for those claims to be relitigated.
The lawsuit stems from a 2019 decision by the City of West Des Moines to hire The Conley Group, a professional security services company, to provide security for the city through the end of 2021.
In 2020, The Conley Group contracted with the City of Des Moines to provide security at its municipal buildings. Months later, in January 2021, Conley wrote a letter to the editor of the Des Moines Register criticizing a series of articles he felt were unfairly critical of local law enforcement’s response to the unrest that followed the death of George Floyd in Minneapolis, who was murdered by an officer while in police custody.
On July 10, 2021, the Register published a front-page story referring to social media posts and emails in which Tom Conley had likened the actions of the protesters to “terrorism” and referred to the protesters as “thugs” and “snotnosed, punk$$ed, basement dwellers.” The article also indicated Conley had described local Black Lives Matter activists as “nothing but weak, punk—ed little sissy b—— who live in their parents’ basement.”
On Aug. 16, 2021, the West Des Moines City Council voted unanimously to terminate The Conley Group’s security services contract, which was due for renewal at the end of the year. Court records indicate that following the decision, council member Cherry “Renee” Hardman sent a text message to a supporter stating she had used “every ounce” of her political capital “to garner this 5-0 vote,” adding, “We will get sued — but we have decided it is a fight worth fighting.”
Conley’s lawsuit alleges that Hardman then asked the City of Des Moines’ city manager when he was going to “get rid of Conley.” At the time, The Conley Group was in the process of selling a portion of its security business and voluntarily terminated its contract with Des Moines to avoid any negative impact on the transaction.
Tom Conley and The Conley Group then sued the City of West Des Moines as well as Hardman and the four other council members who voted to terminate the city’s contract with the company.
As part of the lawsuit, the plaintiffs alleged the defendants engaged in unconstitutional retaliation for Tom Conley exercising his First Amendment rights when the city canceled its contract in response to his statements. They also alleged the defendants interfered with the company’s business contracts by pressuring Des Moines to cancel its contract with the company, and they alleged the defendants defamed Conley by making statements that branded him a racist.
In a March 2024 order, a district court judge granted the city’s motion to dismiss each count of the lawsuit. That order was based in part on findings that Tom Conley lacked standing to claim damages for injuries to the company; that the only speech that triggered the alleged retaliation was made by Conley and not by the company; and the fact that The Conley Group had voluntarily terminated its contract with the City of Des Moines.
Tom Conley appealed, arguing he had standing to bring a claim for First Amendment retaliation because he had sustained damages through defamation that were independent of those suffered by the company.
With regard to the defamation claim, Conley asserted that the City of West Des Moines and other defendants had “made statements directly and impliedly that Tom Conley was a racist, during city council meetings and in statements that were published to third parties, including the media.”
In dismissing that particular claim, the district court stated that “crucially, (the lawsuit) does not identify any statement made by defendants, much less a series of facially non-libelous statements which allow the audience to ‘connect the dots’ to arrive at a defamatory implication.”
Conley argued “the clear implication” of the city’s actions in canceling his contract “was that Tom Conley was a racist and needed to be punished.”
The district court rejected that argument, finding that Conley was essentially attempting to claim defamation based on the city’s actions rather than on specific statements, which was not the “proper basis for a defamation claim.”
The appeals court agreed, stating that “the only statements identified (in the lawsuit) are articles published by the Des Moines Register, and Conley chose not to sue the newspaper.”
