$1,791 in Damages for a First Amendment Violation

From Zinna v. Congrove (10th Cir. 2012), decided earlier this year:

Zinna was affiliated with BJC Development Corporation (“BJC”) in 2000 when a real estate transaction between BJC and Jefferson County, Colorado failed to materialize. The ensuing dispute was ongoing in 2003 when Zinna launched the website JeffcoExposed.com, and later, ColoradoExposed.com. These websites served as platforms through which Zinna reported on public meetings and speculated about corruption in Jefferson County government. Although his reporting was somewhat hyperbolic, Zinna uncovered several public scandals, including an incident of sexual harassment that resulted in the resignation of two county officials. At the height of his journalistic career, Zinna obtained press credentials and earned a reporting award from Westword, a Denver periodical. According to Zinna, his writing attracted as many as 100,000 visitors each month to his websites.

After the websites caught the attention of several Jefferson County Commissioners, including Congrove, Zinna became the target of a variety of antagonistic conduct. County resources were directed toward research on Zinna’s background, a private investigator was retained to report on Zinna, sheriff’s officers began following Zinna, and a county commissioner muted Zinna’s microphone at a public meeting….

Zinna … filed suit against a host of county officials under § 1983 seeking economic and punitive damages. In his complaint, Zinna alleged that he had been retaliated against for criticizing county officials in violation of the First Amendment. Following several pretrial motions, Congrove remained the only defendant in the case. At the pretrial conference, the action was further narrowed when the district court granted an in limine motion precluding Zinna from seeking certain economic damages, leading Zinna to withdraw his request for punitive damages …. Following Zinna’s case-in-chief, Congrove successfully moved for a directed verdict on the remaining economic damages. Zinna’s request for a declaration that his rights were violated and damages based on emotional distress were thus the only issues submitted to the jury….

After reciting the elements of a constitutional retaliation claim, the court instructed the jury on damages:

If you find in favor of Mr. Zinna, then you must award Mr. Zinna an amount of money that you believe will fairly and justly compensate Mr. Zinna for … any mental or emotional suffering that Mr. Zinna has experienced…. If you return a verdict in plaintiff’s favor, but nevertheless find that he has failed to meet his burden of proving that he suffered any damages that were caused by Mr. Congrove, you must award mr. [sic] Zinna “nominal damages” of one dollar ($1.00).

During deliberations, the jury inquired of the court when the First Amendment was adopted. The court responded that the Bill of Rights was enacted in 1789 and ratified in 1791. On receiving this information, the jury returned its verdict. It found that Zinna “prove[d] by a preponderance of the evidence that … Congrove[] used his authority as a Jefferson County Commissioner to take adverse action against … Zinna in violation of the First Amendment.” $1,791 was awarded to Zinna as damages.

Or maybe it should have been $1,868.