CHARLESTON, W.V. (LOOTPRESS) – On Monday, U.S. District Judge John Copenhaver ruled in part that a former state superintendent of schools, Steve Paine, and an assistant superintendent of schools at the Department of Education, Jan Barth, retaliated against lobbyist and owner of government affairs firm Capitol Advocate, Jason Webb, for several of his social media posts.
According to Webb’s judgment request, he advocated as a registered lobbyist on behalf of his education industry client and national testing company ACT, Inc. At the same time, he took to social media, publicly expressing his views concerning education policy- more specifically the student data bill that passed the West Virginia Legislature in 2017, which would have allowed ACT to use their standardized tests in public schools and allow students to opt-in to allow ACT to send them information on different scholarships and colleges.
Webb also shared his opinion on another 2017 bill involving ACT.
This upset then-superintendent Paine and assistant superintendent Barth, who disagreed with Webb. Paine was state superintendent of schools from 2005 to 2011. He returned in 2017 before retiring last year. Barth is still employed by the Department of Education.
Webb says Paine then asked for compilations of his tweets and confronted the leaders of ACT. Webb also said that Barth pushed for ACT’s rival, SAT, to hire a lobbyist who could oppose Webb.
Paine and Barth both countered Webb’s statements, saying the Department of Education believed Webb was using his social media accounts for “misleading and insulting commentary” and that his tweets did not support the Department of Education.
The pair said their efforts to compile Webb’s tweets were to exactly track what was being said, however, they could not prove that they had ever reacted to a similar situation in such a way as they did with Webb.
Webb first filed suit against Paine and Barth in U.S District Court for the Southern District of West Virginia during the summer of 2019. The lawsuit stated that Paine and Barth’s actions violated Webb’s First Amendment rights and constituted “tortious interference with Webb’s business relationship with his client ACT.”
ACT ended its contract with Webb following the suit.
According to court filings, Paine contacted ACT on multiple occasions, complaining about Webb’s social media posts and threatening to pull contracts directly to ACT’s former CEO.
Based on the evidence, Copenhaver agreed on Monday that Webb’s speech was protected by the First Amendment and that Paine and Barth’s actions were retaliation for his protected speech.
“There is no genuine dispute of material fact that Webb’s social media posts or his lobbying activities generally are protected by the First Amendment. While defendants highlight the derisive tone and allegedly misleading nature of plaintiff’s social media posts … they never contest that the posts fall within First Amendment protection,” Copenhaver wrote.
“The causal connection here, that is, whether (Paine and Barth’s) communications with ACT officials were caused by (Webb’s) protected activity, is plain and uncontroverted in the evidence. (Paine and Barth) collected (Webb’s) social media posts and sent those posts to ACT with the apparent purpose of having ACT do something about it.”
Although Copenhaver ruled in favor of the first and third elements of count I, he denied the second element: whether Paine and Barth’s conduct adversely affected Webb’s rights to free speech or standing (tortious interference with business relations).
Copenhaver also denied part of count III, which was based on Paine and Barth’s interference in Webb’s relationship with ACT.
“ACT decided to not continue its engagement in West Virginia for three reasons: the filing of this lawsuit by Webb, the ‘political landscape’ changing in the West Virginia Legislature, and the fact that ACT was ‘getting nowhere with the [WVDE] with regard to District Choice,’” he wrote.
Copenhaver then cited the testimony of Chris Kratzer, ACT’s senior director of U.S. government relations.
“Indeed, Kratzer testified that ACT has not employed an outside lobbyist in West Virginia since terminating (Webb). Thus, (Webb) has not shown a material issue of fact supporting his claim that (Paine and Barth) caused the termination of his relationship with ACT. Rather, ACT, having chosen to withdraw, had no further need for (Webb’s) lobbying services.”
The case will continue in a jury trial scheduled for 9 a.m. on Tuesday, March 30. This trial will decide on the part of count III, which claims that Paine and Barth conspired to violate Webb’s First Amendment rights.
