1A Rights Threatened by Democrats' Novel Lawsuit Stemming from 2020 TX Trump Train

HOUSTON, TEX. - In July 2021, Joeylynn and Robert Mesaros, a married couple from New Braunfels, were served with a lawsuit. Former Texas Senator Wendy Davis and three Democratic operatives and contractors involved in the Biden Presidential campaign had sued the Mesaroses in federal court in Austin, along with several other Trump supporters, alleging civil conspiracy and civil rights violations. The basis for such sensational claims? The lawsuit targets the Mesaroses and the other defendants for their participation in a Trump Train event in October 202o, expressing their support for President Trump’s re-election as the Biden bus traveled through central Texas.

Wendy Davis and the other plaintiffs are represented by no fewer than ten attorneys, primarily from New York City and Washington, D.C. Najvar Law Firm PLLC (NLF), of Houston, Texas, was retained by the Mesaroses.

This month, the Mesaroses filed a second motion urging the district court to dismiss the case outright, explaining that the Democrats’ novel legal theory would upend settled First Amendment law and chill the completely legal and non-violent speech of conservatives.

“This lawsuit is an egregious abuse of the judicial system,” said NLF principal attorney Jerad Najvar, an experienced litigator who has focused for more than a decade on constitutional, and especially First Amendment, litigation for conservatives. “As I said in our initial statements, the whole case is founded upon the plaintiffs’ attorneys’ pitiable lies and exaggerations, and their own evidence refutes their central factual claims,” Najvar said. The Epoch Times reported on the case last year, with further discussion of the underlying facts. NLF will be discussing the factual aspects of the case in coming days, including the Plaintiffs’ own evidence which directly refutes the claims. “But the focus of our pending motion is the fact that settled First Amendment law forecloses the Plaintiffs’ novel claims as a matter of law, and therefore we are re-urging the court to dismiss the lawsuit,” Najvar said.

Plaintiffs’ lawsuit alleges a violation of a provision of 42 U.S.C. § 1985(3), known as the “Ku Klux Klan Act” of 1871, which essentially guards against interference with the right to vote. But Plaintiffs nowhere allege that anyone was intimidated or dissuaded from exercising their right to vote because of the Trump Train on October 30, 2020. Instead, the claim is that the Trump Train drivers intimidated the Biden campaign surrogates and workers while they were in the act of offering “support or advocacy” to Biden as the bus traveled to Austin on I-35.

“My clients were sued for nothing more than driving along I-35 with their Trump and other political flags proudly displayed on their vehicle, which they have the clear right to do,” said Najvar. Because there is no claim of interference with actual voting activity, the Plaintiffs’ theory relies solely on alleged interference with rights protected under the First Amendment – but proving a violation of First Amendment rights would require proof of government involvement in the Plaintiffs’ imaginary conspiracy to intimidate. The Mesaroses are not government agents. They are not officials, but normal citizens who had the temerity to show their support for Trump in 2020 as Biden surrogates apparently claimed the sole right to campaign on I-35 in the vicinity of their massive bus.

In a 1983 case interpreting the statute at issue, the Supreme Court held that where (as here) there is no claim of interference with anyone’s ability to register to vote or actually vote, alleged interference with “support or advocacy” is a claim arising solely under the First Amendment, and therefore requires state involvement. United Brotherhood of Carpenters v. Scott, 463 U.S. 825, 830 (1983). Lacking any state involvement here, the Plaintiffs’ claim fails as a matter of law. The Supreme Court specifically warned against interpreting Section 1985(3) to support “the claim that a political party has interfered with the freedom of speech of another political party by encouraging the heckling of its rival’s speakers and the disruption of the rival’s meetings,” because the federal courts cannot be “monitors of campaign tactics.”

“The Plaintiffs here seek to do exactly what the Supreme Court warned against in Carpenters,” Najvar said. “Plaintiffs are sophisticated and know exactly what they’re doing – this lawsuit is an attempt to silence political opposition by intimidation through the court system. It cannot succeed.” Najvar is not the only one saying so. Lackland Bloom Jr., professor of constitutional law at SMU’s Dedman School of Law, told The Epoch Times that he believes the case will ultimately be dismissed.

Najvar has prevailed in constitutional lawsuits against the Federal Election Commission, the Food and Drug Administration, the Texas Ethics Commission, the cities of Houston (twice), Austin, and Stafford, and Bexar and Hidalgo Counties in Texas. He has argued constitutional cases in the Texas Supreme Court, Texas’s First and Fourth Courts of Appeals, and in the United States Courts of Appeals for the Fifth, Ninth, Eleventh, and D.C. Circuits.

The motion to dismiss Plaintiffs’ amended complaint is currently pending and awaiting a ruling from the court. The case is Cervini v. Cisneros, No. 1:21-cv-00565, in the U.S. District Court for the Western District of Texas, Austin Division.

READ THE MOTION TO DISMISS HERE

Najvar Law Firm, PLLC, based in Houston, focuses on litigation and appeals in election and constitutional matters. NLF has successfully litigated several constitutional cases, including serving as co-counsel to Plaintiff Shaun McCutcheon in McCutcheon v. FEC (2014), in which the U.S. Supreme Court struck down the federal aggregate limits on campaign contributions under the First Amendment.

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