Abraham Flaxman and Amy Hagopian are professors at the University of Washington. They serve as the primary moderators of the “Faculty Issues and Concerns” listserv, which has more than 2,000 faculty subscribers. The listserv is designed to facilitate communication among faculty about higher education issues. Moderators do not screen messages for political or controversial content but instead focus on filtering out personal attacks or excessive back-and-forth exchanges to keep discussions manageable.
In December 2022, the Washington State Executive Ethics Board (Board) received an anonymous complaint alleging that Flaxman misused state resources by forwarding an email to the listserv about Whole Washington, a campaign for universal healthcare. The complaint alleged that Flaxman violated Washington’s Ethics in Public Service law (Ethics Law), Wash. Rev. Code section 42.52, which prohibits state employees from using public resources for personal gain or political campaigns. The Board reviewed all of Flaxman’s emails from a three-month period. The Board found reasonable cause to believe he had violated the Ethics Law and suggested the penalty could exceed $500. The Board later dismissed the matter after he retained counsel.
In June 2023, the Board received another anonymous complaint after Flaxman forwarded an email about a potential strike by research scientists and postdoctoral scholars at the University of Washington. The email listed ways to support the strike, including making donations to a hardship fund. The Board again reviewed Flaxman’s emails from a three-month period. In doing so, it found another violation of the Ethics law, but classified it as minor and imposed no penalty.
In December 2022, the Board received an anonymous complaint that Hagopian had violated the Ethics Law by forwarding an email about a University of California strike to the listserv. That message urged faculty to contact elected officials, post on social media, and donate to a strike fund. The Board reviewed more than 2,000 of her emails, which included personal items such as boarding passes, news alerts, and promotional emails. It concluded that Hagopian violated the Ethics Law by soliciting donations and using her state email for personal benefit. The Board fined her $750.
In October 2023, Flaxman and Hagopian filed suit challenging the Board’s investigatory practices, including its acceptance of anonymous complaints, its broad review of faculty email accounts, its treatment of incidental financial solicitations as violations, and its imposition of what they described as excessive penalties. Flaxman and Hagopian filed their complaint on behalf of themselves and a proposed class of listserv subscribers. They alleged that the Board’s policies chilled their First Amendment free speech rights and restricted discussion on the faculty listserv.
The federal district court held that the claims were not ripe for review and dismissed the complaint under Federal Rule of Civil Procedure 12(b)(1). The district court reasoned that the professors had not adequately alleged that the Board had chilled their speech. It also found that, because the professors were public employees, they had no First Amendment privacy interest in their emails. It reasoned that faculty emails are treated as public records under Washington law and subject to disclosure, so professors could not claim a privacy right in them. Finally, the district court concluded the claims were prudentially unripe because Board investigations were still pending. Flaxman and Hagopian appealed to the Ninth Circuit Court of Appeals.
The Ninth Circuit reversed. It first addressed constitutional ripeness. The Ninth Circuit explained that constitutional ripeness overlaps with Article III standing and asks whether a plaintiff has alleged an injury that is concrete and imminent rather than speculative. The Ninth Circuit noted that in First Amendment cases, courts apply this standard more flexibly because of the risk that speech will be chilled. Plaintiffs may bring pre-enforcement challenges if there is a credible threat of enforcement.
The Ninth Circuit held that Flaxman and Hagopian’s case was constitutionally ripe because they remained moderators of the listserv, the challenged policies were still in place, and the Board had already enforced those policies against them. The Ninth Circuit explained that past enforcement against the same individuals strongly indicates that a threat of future enforcement is real, not hypothetical.
The Ninth Circuit also addressed Flaxman and Hagopian’s argument that the Board had already retaliated against them. It held that their retaliation argument was constitutionally ripe because they had already suffered concrete injury through investigations, intrusive email searches, and, in Hagopian’s case, a monetary fine.
The Ninth Circuit further held that the claims were prudentially ripe. The Ninth Circuit explained that prudential ripeness is a discretionary doctrine that considers (1) whether the issues are fit for judicial decision and (2) whether withholding review would cause hardship. It found both factors present in this case. First, the professors were challenging Board policies that had already been used against them, making the issue fit for review. Second, withholding review would impose hardship because they had already endured intrusive email searches and financial penalties and faced a credible risk of similar enforcement in the future.
The Ninth Circuit emphasized that the district court’s reasoning, that public employment eliminated any First Amendment privacy interest, went to the merits of the case, not to ripeness. It concluded that the case presented a live controversy appropriate for judicial resolution.
Judge Bennett dissented. He argued that the professors failed to plead a constitutionally sufficient injury. He found their allegations of chilled speech too vague and criticized the lack of specific allegations about their own intended future speech. He would have affirmed the dismissal but remanded to allow the professors to amend their complaint.
The Ninth Circuit reversed the district court’s dismissal and remanded for further proceedings
Flaxman v. Ferguson (9th Cir. Aug. 22, 2025, No. 24-919) 2025 LX 310391.