SpaceX's First Amendment Claim Against California Coastal Commission

The California Coastal Commission recently decided to block SpaceX's increase in annual launches at Vandenberg Space Force Base from 36 to 50. SpaceX has just sued, claiming the decision was preempted by federal authority, violated state law, and also violated the First Amendment. I can't speak to the preemption arguments and the statutory arguments, but I wanted to pass along some thoughts about the First Amendment question.

SpaceX is arguing that the Commission's 6-4 decision was influenced by the Commissioners' disapproval of Elon Musk's politics and speech:

The Commission also made clear that its objection was rooted in animosity toward SpaceX and the political beliefs of its owner Elon Musk, not concern for the coastal zone. After talking at length about concerns with changes in Department of Defense leadership following the November 2024 election, Commission Chair Hart said explicitly: "The concern is with SpaceX increasing its launches, not with the other companies increasing their launches." She explained, "we're dealing with a company … the head of which has aggressively injected himself into the Presidential race and made it clear what his point of view is."

Other Commissioners similarly made clear their decision was based on political disagreements with Mr. Musk. Commissioner Newsom, for instance, said that "Elon Musk is hopping about the country, spewing and tweeting political falsehoods and
attacking FEMA while claiming his desire to help the hurricane victims with free Starlink access to the internet." Commissioners Aguirre and Escalante voiced similar concerns regarding the political uses of Starlink. As these statements show, the impact of the proposed launch cadence increase on the coastal region was the last topic on the Commissioners' minds at the October 2024 meeting.

At the same time, there have also been other arguments given for the decision, related to the potential environmental effects of the launches.

Here's the general rule: The government generally may not deny a license or approval to a regulated entity because of that entity's speech, or the speech of its owners or managers (unless the speech falls within a First Amendment exception, such as for true threats of illegal conduct). "[T]he standard for evaluating whether a regulated entity has established a claim of retaliation based on the exercise of free speech rights," to quote CarePartners LLC v. Lashway (9th Cir. 2008), is:

A "plaintiff alleging retaliation for the exercise of constitutionally protected rights must initially show that the protected conduct was a 'substantial' or 'motivating' factor in the defendant's decision." If the plaintiff makes this initial showing, the "burden shifts to the defendant to establish that it would have reached the same decision even in the absence of the protected conduct." To meet this burden, a defendant must show by a preponderance of the evidence that it would have reached the same decision; it is insufficient to show merely that it could have reached the same decision.

Likewise, here SpaceX would likewise have to show—presumably based on evidence such as the Commissioners' statements (as alleged in the Complaint)—that Musk's political activity was a substantial or motivating factor in the Commission's 6-4 decision. If it does  make that showing, then the burden would shift to the Commission to show that it would have denied SpaceX's application (notwithstanding facts such as the Department of the Air Force's support for the application) even if Musk's politics had been different, or if Musk had been apolitical. The key question is thus factual, or, to be precise, counterfactual.

Nor would it be enough for the Commission to argue that it "was entitled" to deny the application under state law based on environmental reasons, or that it "could have" rejected the application "in the absence of any" consideration of Musk's constitutionally "protected conduct" (I'm quoting here from Sorrano's Gasco, Inc. v. Morgan (9th Cir. 1989), another Ninth Circuit precedent.) That focus on what the Commission could have done would "mispreceive the import of the … causation analysis" set forth by the Supreme Court in Mt. Healthy City School Dist. Bd. of Ed. v. Doyle (1976):

The Mt. Healthy test requires defendants to show, by a preponderance of the evidence, that they would have reached the same decision in the absence of the protected conduct. The defendants here have merely established that they could have suspended the permits.

Thanks to Hans Bader (Liberty Unyielding) for the pointer to CarePartners.

Comments

[great Unknown]

as always, discovery should be edifying and entertaining.

[Michael Ejercito]

Putting their beliefs in writing is even more astonishing than the beliefs themselves!

[Brett Bellmore]

They genuinely don't think there's anything wrong with what they're doing, so they have no reason to hide it.

[Bored Lawyer]

I have noticed over the years that people feel very free to say anything in an email or text. It all comes out in litigation. Sometimes to the severe embarrassment of the writer.

Which is one reason why eDiscovery is such a hot issue -- it's very burdensome, but you often can find a smoking gun among thousands of spam emails.

[jb]

Can you elaborate on what written statements you're talking about? Eugene's post nor the NYT article don't seem to mention any.

[Brett Bellmore]

Well, you've got him there: They were verbal statements, in front of a camera and microphone, not written.

That changes everything, obviously.

[jb]

Certainly changes whether it makes sense to talk about how shocking it is that people wrote something down.

[Brett Bellmore]

Right, changes it to talking about how shocking it is that they said it out loud.

[Armchair]

These are apparently formal commission meetings. Recorded and everything. Perhaps even transcribed.

Making statements in these, as done, is arguably worse than just a random post somewhere.

[Brett Bellmore]

I will say only one thing in their defense: Once the words were out of their mouths, it was too late to unsay them. Not typically true of text.

So I'll give them a tiny smidgen of slack here.

But it's still damning enough to get Musk to discovery.

[Armchair]

Honestly, based on the number of statements from the number of commissioners, and the related testimony that it's "just" about SpaceX, not other launch companies...

It's probably enough on its own to show prejudice.

[Brett Bellmore]

You could argue, (Giving them the benefit of such doubt as remains.) that it's just about SpaceX, not the other launch companies, because SpaceX by itself is, what, 95% of the launch market?

The other launch companies aren't even a factor, they're a rounding error at best. They don't need to worry about them until that changes.

[Roger S]

My guess is that the Coastal Commission is used to bullying people, without much accountability.

[flag58]

That's their job!

[Jerry B.]

“"we're dealing with a company … the head of which has aggressively injected himself into the Presidential race and made it clear what his point of view is."”

So, should Bloomberg, Soros, et.al. be discriminated against in, say, Mississippi or Idaho for the same reason?

[M L]

Maybe. Does Soros own any property in the State of Florida, for example?

[ReaderY]

I am disinclined to interpret the First Amendment as imposing an effective gag rule preventing members of government bodies from expressing political opinions. Launching space vehicles has obvious potential effects on the surrounding community. There were reports that Space X had previously ignored safety standards.

I don’t think that the First Amendment was intended to enable billionaires with large legal budgets to investigate everything ever said by any member of the commissions regulating them to find some unfavorable past comment that might serve as a basis for torpedoing unfavorable decisions, particularly on matters involving compelling state interests.

Public safety is a compelling state interest. The Constitution is not a suicide pact. I think that if a safety regulation is justifiable as a safety regulation, Mr. Musk should lose.

Space vehicles are loaded with explosives. Under Professor Volokh’s formulation, manufacturers of explosives, for that matter nuclear weapons, would be fully entitled to test their explosives right in fully occupied public building or on busy bridges in the middle of cities and damn the comsequences. As long as they could identify a negative comment by a public official and their lawyer could come up with an argument that the comment “substantially” influenced the decision, as any semi-competent lawyer undoubtedly could, government woild be powerless to prevent it. The manufacturer’s First Amendent rights would completely trump not just the welfare, interests, and property of the citizenry but their very lives.

That’s practically a title of nobility, a kind of droit de signeur immunity. It would enable people rich enough to have large legal budgets and ability to investigate to use manipulative constitutional arguments to do whatever the hell they damn well please, and the public be damned.

Most perversely, they could use the First Amendment to shut down criticism of them. The more people complained, the more ammunition they would have to show that adverse government decisions were politically motivated and hence violated their First Amendment rights. That’s an outrageous perversion of what the First Amendment is supposed to protect! It has to be said like it is.

[jimc5499]

There's a problem with your statement. The California Coastal Commission is an environmental group. It has nothing to do with public safety, that would be a different organization. This is all about Musk's political belief which is outside the Commission's purview. Of course with this being California, this lawsuit is going nowhere unless it gets to Federal Court.

[ReaderY]

Not a problem. Professor Volokh’s standard, as stated, would apply equally to a safety commission. Yes it’s a hypothetical and not exactly the facts of the current case. But I’m entitled to use a hypothetical to explain why his standard could lead to perverse consequences. Such hypotheticals are common in legal arguments.

[Armchair]

Reader....

Sure, use your hypothetical. But keep it on topic.

These aren't random posts by a commission member on Facebook in their off time. These were statements made in the exercise of their official duties, during commission meetings. Their reasons to grant or deny such permits should be limited to the reason for the permits in the first place...not extraneous "other" items they feel are important.

Imagine how this might play out otherwise if Government officials could grant or not grant permits based not on the situation before them, but on other items they "felt" were important.

[Rossami]

Wow, that is some impressive level of distortion of what Prof Volokh (and the facts of the case) actually said.

Yes, regulators may regulate legitimate issues (including safety). No, they may not use their regulatory power as a pretext to do other, expressly forbidden things like violating the 1st Amendment. And those being regulated most definitely do have a right to their day in court to argue that it was a pretext and not a legitimate regulatory action.

And given the CCC’s documented history of abuse of discretion, I’m comfortable with a presumption that they acted from illegitimate pretext until and unless they can prove otherwise.

[Bored Lawyer]

Musk is going to have to prove that the regulatory decision was made because of his political beliefs/activities, not because of legitimate regulatory reasons. That’s a tough burden. Just showing that a bureaucrat made some anti-Musk comment is not going to cut it.
OTOH, if there is some record that they issued a regulation or regulatory ruling because of his politics, then it’s a violation of his First Amendment rights. The statement of the Commission Chair quoted in the OP is a lot closer to what he needs.

[ducksalad]

"The concern is with SpaceX increasing its launches, not with the other companies increasing their launches."

I think Musk has a good start right there.

[Brett Bellmore]

The problem is that the bureaucrat didn't just make some anti-Musk comment. The bureaucrat indicated that the anti-Musk comments reflected a reason for the denial.

Thursday Oct 10, 2024: Coastal Commission public hearing in San Diego At about 4 hours and 30 minutes, we find out just how much that bureaucrat hates Musk on issues unrelated to the Commission's jurisdiction.

[Brett Bellmore]

And again about 8 minutes later, politics comes into it.

[Commenter_XY]

Thx for the helpful distinction....it is the act of retaliation by government regulators that is the deciding factor.

[Riva]

Feel free to disincline to interpret the First Amendment as imposing an effective gag rule preventing members of government bodies from expressing political opinions. That isn't the basis of the suit. SpaceX is alleging retaliation for the exercise of constitutional rights, not that a committee member merely expressed an opinion.

[ducksalad]

I think you're ignoring the second part, where the governing body still wins simply by explaining the valid reasons - legitimate governmental purposes - that would have necessarily led to the same decision.

All they're really losing is the ability to use "FYTW", "mah authoriteh" or more politely "we have discretionary powers that can't be examined or questioned" as reasons. And they don't even lose that unless they're stupid enough to reveal an improper motivation.

Otherwise valid decisions, or even utterly discretionary decisions, can still be overturned if made for unconstitutional or unlawful motivations. The counterexample to yours would be a zoning commission that said they intended to systematically deny building permits to black people. Then they deny a black guy a permit. Well, tough luck for the commission, but they brought it upon themselves. Now they have to go explain it to a court. If it's an open-air hand grenade test range next to a daycare, they can still win. If it's merely a restaurant in an area zoned for offices, they ought to lose.

[Randal]

Musk will lose on the First Amendment stuff. His statements are related to his actions, and the Commission can point to his related actions as the reason for the denial, even though they've referred to his statements.

That is, they're not just saying that they don't want to support SpaceX because Elon is an idiot. They're saying they don't want to support SpaceX because Elon's idiocy is causing actual problems, such as his bait-and-switch fraud against hurricane victims.

[Stupid Government Tricks]

I approve. If that kind of irrelevant material mattered, every politician would be shot at dawn.

[Brett Bellmore]

I'm not quite sure what "bait and switch fraud against hurricane victims" you're talking about.

" Commissioner Newsom, for instance, said that "Elon Musk is hopping about the country, spewing and tweeting political falsehoods and attacking FEMA while claiming his desire to help the hurricane victims with free Starlink access to the internet.""

I spent last weekend camping in NC at a ranch that had been used as a rally point for disaster relief. There wasn't any bait and switch. At most what happened was that the feds impeded delivery of some of the Starlink terminals Musk was providing, by closing the relevant airspace to relief flights. Musk's were hardly the only relief efforts impacted by that.

[Randal]

Well pull your head out of your sandy ass. Look, it's so idiotic even the right-wing media is biting:

https://nypost.com/2024/10/09/business/elon-musks-starlink-charges-helene-survivors-for-free-internet/

[Brett Bellmore]

You think that's a bait and switch, or just a company not immediately implementing every detail of what the boss said to do?

Not that I'd expect them to get perpetual free service; At some point they're going to have to either ante up or return the dishes.

[Randal]

The media — including right-wing media — is calling it a bait-and-switch, and the Commission is apparently upset about it.

You think that’s a bait and switch...?

I don't think it's free speech.

[Michael P]

Your theory appears to be that regulatory bodies have free range to deny applicants based on any reason they like, regardless of whether it has anything to do with their regulatory ambit. True?

[Randal]

No. My theory is that the First Amendment isn't the right tool to use to hold regulatory bodies accountable for exceeding their regulatory ambit.

[SDN]

Now, there we agree. I much favor using the Second Amendment.

[Rossami]

Randal, what alternative tool would you propose for this particular case where the regulatory "exceeding" is retaliation for the company owner's free speech?

[Randal]

No, you just circled back around to restate the disproven premise. Not falling for it.

[MN2828]

Except that none of that is anywhere near the purview of the California Coastal Commission or any regulatory body in California. Their legitimate concerns are whether current or increased launches would cause an environmental problem in that coastal area, which the public comments cited above suggest that they would not.

If Space-X is running a bait and switch on flood victims (the article you linked doesn’t say that), the FTC or the AG’s offices in the affected states can deal with it. The CCC has made it pretty clear that they don’t like Musk’s politics and, therefore, denied Space-X a permit. That is the First Amendment problem.

[Randal]

Your argument is wrong and irrelevant. It's wrong because I think the CCC could draw inferences about the applicant based on their behavior, even if the behavior doesn't directly impact California. It's irrelevant because the First Amendment wouldn't have anything to say about that anyway.

[Armchair]

"It’s wrong because I think the CCC could draw inferences about the applicant based on their behavior,"

No. This is impermissable. A government committee cannot "draw inferences" on unrelated actions to surreptitiously deny permits, anymore than a county clerk can deny a marriage certificate to a black man and white woman because they "draw inferences" about potential behavior.

[Randal]

God you suck. I didn’t say “draw inferences about potential behavior.” I said “draw inferences based on [actual] behavior.” Not based on being members of a suspect class, not based on speech, based on past behavior.

[Armchair]

Sure, base it on “actual” behavior then.

Perhaps the Clerk just happens to ask the black man…”Have you ever been arrested?” No marriage license. “Have you ever done illegal drugs?” No Marriage license. “Have you ever had a drink or smoke when underage?” No marriage license. “Ever lied to a county clerk?” No marriage license. “Ever just been accused of doing any of those things?” No Marriage license.

The clerk can clearly “draw inferences” on the past behavior. Just because the guy is black…pure coincidence.

Oh, and White guys marrying white girls don’t get asked those questions.

That all work for you? The clerk is just basing their views on someone's past behavior.

[Randal]

That all work for you?

Other than the “been accused of” part, yes, if instead of a marriage licence, which is a fundamental right, it was a pilot’s license, and if instead of a Black man, which is a suspect class, it was a Yale graduate, because Yuck Fale.

[M L]

The officials just take it for granted that someone who thinks unapproved thoughts or expresses unapproved ideas, like supporting Trump for example, must be denied and opposed at every opportunity. Probably locked up too, and their property confiscated.

They are getting so used to the government doing things it's technically not supposed to do, they forgot that maybe they shouldn't come out and say that that's what they're doing while they're doing it.

[Sarcastr0]

Bellmorian levels of telepathy at work here.

This commissioner sure seems to suck.

But that is not established for 'the officials' nor for 'they.'

[ThePublius]

1. I am having trouble parsing everything in your comment;
2. no telepathy required: the commission said exactly why they were denying the permit, and it was because of Musk's political speech;
3. as such, yes, they suck.

[lwt1960]

Below are the standards from the CA Coastal Act used by the Commission in the review of coastal development permits and Local Coastal Programs. Help me out with where political speech/positions would be considered in the review process? Note the word "shall" below (not "should"). That implies the list is mutually exclusive and collectively exhaustive.

Think about it and then tell me it's a good idea to elect progressives to pack the Supreme Court, reinterpret both the Constitution and the Bill of RIghts and fill positions of District Attorney around the country to decide what to prosecute and what to allow.

Section 30200 Policies as standards; resolution of policy conflicts:
(a) Consistent with the coastal zone values cited in Section 30001 and the basic goals set forth in Section 30001.5, and except as may be otherwise specifically provided in this division, the policies of this chapter shall constitute the standards by which the adequacy of local coastal programs...

Article 1 states that Chapter 3 shall be used as the standard against which the legality of LCPs and development permits will be measured.

Article 2 mandates that development shall not interfere with the public's right to access the sea and coastal beaches.

Article 3 covers recreation, placing a priority on coastal dependent public and private recreation over residential development.

Article 4 deals with protection of the marine environment, including water quality issues, wetlands protections and coastal armoring.

Article 5 includes protections for environmentally sensitive habitat, agriculture and archeological resources.

Article 6 deals with development and issues such as protection of coastal views, limitations on coastal armoring and landform alteration, and geologic hazards.

Article 7 covers industrial development.

[flag58]

More launches more beach closures?