The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Dismissing Appointed Volunteer City Board Member for Her Speech (or Refusal to Speak) Doesn't Violate First Amendment

The rules for political appointees to such boards are different from the rules for ordinary government employees.


From Lathus v. City of Huntington Beach, decided by Judge Stanley Blumenfeld (C.D. Cal.) on Sept. 29, but just posted on Westlaw:

Plaintiff Shayna Lathus was appointed to the Citizen Participation Advisory Board of the City of Huntington Beach (CPAB) by former City Councilwoman Kim Carr, who is now the mayor of Huntington Beach. {On April 27, 2019, Plaintiff attended a rally in support of immigrant rights. After the rally, Carr called Plaintiff to inform her that Carr had seen a photograph of Plaintiff at the rally "standing near individuals dressed in black that Carr identified as 'Antifa' members." Carr "instructed" Plaintiff to denounce Antifa…. Plaintiff then wrote a social media post stating that "she supports law enforcement officers, she also supports immigrants' rights, she was not aware that people identifying as Antifa would be present at the rally, and she did not engage with people identified as Antifa." Carr told Plaintiff that her social media post was "not enough" because Plaintiff did not "denounce" Antifa.} … Carr dismissed Plaintiff from the CPAB, citing a lack of shared values….

Plaintiff is a resident of Huntington Beach. Plaintiff and Carr ran for City Council in 2018. Carr won a seat; Plaintiff did not. Soon after the election, Carr appointed Plaintiff as a member of the CPAB. Carr "had final policymaking authority on the decision to hire and fire" Plaintiff. Plaintiff accepted the appointment to "participate in local government [ ] and gain experience and name recognition locally as a springboard to further a career in politics and within Huntington Beach …."

The CPAB is a part of city government. It consists of seven members, each of whom is appointed by one city council member. The members of the CPAB have "differing political views [and] affiliations." The CPAB's stated purpose is:

[T]o provide citizen participation and coordination in the City's planning processes for the Community Development Block Grant Program administered by the Federal Department of Housing and Urban Development (HUD). The board shall assess the needs of the community, particularly that of low and moderate income households, evaluate and prioritize projects pertaining to the required plans and provide recommendations to City Council on such plans and projects. The board may hold public hearings to obtain citizen input on community needs, plans or proposals. The board shall provide specific recommendations regarding the projects reviewed by the board to the City Council….

Blair v. Bethel Sch. Dist. (9th Cir. 2010) noted that the political context distinguished [such cases] from the ordinary retaliation case because "more is fair in electoral politics than in other contexts." That is, political officials are expected to act politically, which includes voting against candidates who express differing views, as this is part of "the regular functioning of the political process." This principle applies here…. Carr was politically entitled, as a prerogative of her position as a council member, to appoint the person who would best represent her views and interests. To that end, "Carr had final policymaking authority on the decision to hire and fire [Plaintiff]." Under Blair, Carr was permitted to consider the political ramifications not only when she decided to appoint Plaintiff but also when she later elected to remove her from the public position….

[T]he Ninth Circuit [also] found it "significant" in Blair that the First Amendment rights of the plaintiff's fellow board members also were at stake. The fellow board members had voted to place the plaintiff in the executive position; and their vote, to some extent, attached them politically to the plaintiff. Those voting members had the right to "communicate[ ] to [the plaintiff] and to the public" their disapproval of the plaintiff's views, and the board had a legitimate interest in seeking "to distance itself" from the plaintiff's views. Id. The removal of the plaintiff from the position to which the disapproving board members had appointed him constituted their public expression of disapproval and disassociation.

The existence of competing First Amendment rights in the context of political appointees who serve in a public role in the political arena is a particularly weighty consideration here. Carr was solely responsible for selecting Plaintiff to the CPAB. And by accepting the appointment, Plaintiff became a publicly visible figure in the local community. Plaintiff recognized this fact and welcomed the appointment "because it presented her with an opportunity to help her fellow Huntington Beach residents, participate in local government, and gain experience and name recognition locally as a springboard to further a career in politics."

While Plaintiff's actions as a public figure directly reflected upon her, they also could be seen as a reflection upon Carr. Carr's selection of Plaintiff to the CPAB was a political act, and, like all political acts, subject to political attack. As a publicly elected official, Carr was accountable to the public for her political decisions, including her appointments. Of course, Plaintiff had the right to speak out on issues of concern to her and to freely associate within the full boundaries of the law. But Plaintiff also had to realize that, by accepting the appointment, she was no longer the only person politically accountable for her public actions. The political act of appointment had the political consequence of linking the appointor and appointee. By the appointment process, Plaintiff could therefore be viewed as a political extension of the person who had the sole authority to appoint her. {The principles articulated in Blair preclude Plaintiff from relying on authority applicable [to ordinary government employees].}

In short, when Plaintiff decided to engage in public protest, she was expressing her views and showing support for a cause in association with other like-minded individuals. In doing so, Plaintiff unquestionably was exercising her constitutional rights. However, such exercise "does not … immunize [her] from the political fallout" of her actions. Contrary to the thrust of Plaintiff's lawsuit, Carr was not politically powerless to disassociate herself from Plaintiff's public actions through a process that authorized appointment and removal in Carr's sole discretion….

[T]he Blair analysis is [also ]applicable to [Plaintiff's] claim of compelled speech. Carr presented Plaintiff with a choice: provide a statement denouncing Antifa or resign. From a First Amendment standpoint, the option of a compelled statement or forced resignation was no worse than no option at all (i.e., forced resignation). Or, at least, Plaintiff has not provided any reason to suggest that being presented with an option in her circumstances changes the constitutional calculus. Nor would it appear to have that effect. The principles applied in Blair do not seem to rest on any distinction between restricted and compelled speech. It is the context of appointing an individual to a political post for which the appointing politician is publicly accountable that makes the difference….

Lathus has appealed to the Ninth Circuit, but I expect the decision will be affirmed.