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Ninth Circuit Offers Some Guidance On When An Elected Official’s Speech Can Form The Basis For A First Amendment Retaliation Claim

Part of an elected official’s job entails speaking out on hot button issues including responding to statements from other elected officials.  While the courts have made clear that their doors are not open to settling political disagreements amongst elected officials, the Ninth Circuit has recently identified action taken in response to the disfavored speech of an elected official that may form the basis for a First Amendment retaliation claim.  The case is Boquist v. Courtney, No. 20-35080 (9th Cir. April 21, 2022).

Brian Bouqist was an Oregon minority party state senator who filed a First Amendment retaliation claim against majority party state senators for allegedly retaliating against him for engaging in protected speech.  Specifically, Boquist, along with other minority party senators, walked out of the senate to prevent a quorum and in response, majority party members threatened to send the state police to arrest them and return them to the capital.  Boquist then made statements on the senate floor, and to reporters, saying that he would resist any attempt to arrest him, including saying to the senate president that if state police were sent “Hell’s coming to visit you personally” and saying that state police would need to “Send bachelors and come heavily armed.  I’m not going to be a political prisoner in the state of Oregon.”  In response to these statements, senate majority members ordered Boquist not to enter the state capital without giving them 12 hours advance notice so that the Oregon state police could increase their presence at the state capital.  Boquist claimed that this response constituted retaliation for his First Amendment protected speech.

The Ninth Circuit found that the district court erred in dismissing  Boquist’s First Amendment retaliation claim at the initial pleading stage.  Rather, the Court concluded that Boquist had adequately alleged that he engaged in constitutionally protected speech and was subject to a materially adverse retaliatory action on account of that speech.  First, the Court explained that there was no doubt that Boquist’s complaint raised a plausible inference that he was engaging in protected speech to express his views over a political dispute.  The Ninth Circuit went on to find that the contention that Boquist’s statements were unprotected “fighting words” that could be perceived as a true threat were issues of fact that could not be decided at the pleading stage.  Next, the Ninth Circuit found that the 12-hour notice rule was a materially adverse action.  The Ninth Circuit distinguished this from censure actions or actions stripping an elected official of their titular roles which do not rise to the level of a materially adverse action.  Specifically, the Ninth Circuit distinguished the Boquist case from its prior decision in Blair v. Bethel School Dist., 608 F.3d 540, 544 (9th Cir. 2010) and the Supreme Court’s recent ruling in Houston Cmty. Coll. Sys. v. Wilson 2022 WL 867307 (March 24, 2022).

In Blair, the Ninth Circuit found that action taken in the political arena to remove an elected official colleague from an internal leadership position did not as a matter of law state a claim for First Amendment retaliation.  Specifically, stripping a school board member of his titular vice president role because of his criticism of the superintendent was part of the political process and removal from the titular role was not a materially adverse action.  The Ninth Circuit explained that “more is fair in electoral politics than in other contexts” and that while the plaintiff board member had the First Amendment right to his critical speech, the other board members had the corresponding First Amendment right to vote him out of a leadership position.  Likewise, in Wilson, the Supreme Court explained that a public censure of a fellow board member because of his disfavored speech did not form the basis for a First Amendment retaliation claim as elected bodies have long exercised the power to censure their members and a purely verbal censure does not offend the First Amendment.  By contrast, in Boquist, the Ninth Circuit found that the 12-hour rule was a materially adverse action.  Unlike censure, the Court explained that the 12-hour rule was not a well-established historical practice considered consistent with the First Amendment.  The Ninth Circuit also explained that the defendants’ arguments that the 12-hour rule was a reasonable response to Boquist’s perceived threats (and thus that they had a non-retaliatory motive for their actions) was a factual issue that could not be decided on the pleadings.

The framework provided in the Ninth Circuit’s Boquist ruling, in conjunction with its prior ruling in Blair and the Supreme Court’s recent ruling in Wilson, should be considered by elected officials and their advisors when considering taking action in response to an elected official colleague’s disfavored speech.