The First Amendment guarantees the right to speak freely without fear of official retribution. One aspect of this right is that a government agency may not punish someone for speaking out, supporting a candidate, or running in an election. Allowing such retribution would be to allow the government to extort citizens into supporting a particular political orthodoxy.
But such extortion is exactly what happened in Nebraska. Robert Bennie, a financial advisor, became active in the Tea Party movement in 2010. Before then, he had never received any disciplinary action from the Nebraska Department of Banking and Finance, a regulatory agency that monitors brokerage advertisements for compliance with financial regulations. After Bennie became politically active, the Department suddenly began a campaign of investigations and threatening letters, despite the fact that Bennie remained fully compliant with all regulations.
Suspecting that these developments were retaliation for his political stands, Bennie sued the Department. Both the district court and the U.S. Court of Appeals for the Eighth Circuit agreed with Bennie that the government took an adverse action against him that was motivated in part by his First-Amendment-protected speech. And yet the courts nonetheless denied Bennie any relief, imposing yet another hurdle: the “ordinary firmness” test.