Ninth Circuit Reviews Framework Used To Review Speech Restrictions On Elected Officials

CATEGORY: Public Education Matters
CLIENT TYPE: Public Education
DATE: Jun 02, 2022

Brian Boquist was an Oregon minority party state senator.  After members of the minority party participated in a walkout to prevent a legislative quorum, members of the majority threatened to send the state police to arrest the minority members and bring them back to the Capitol.  Boquist made statements on the state senate floor and to reporters that the majority believed to be threatening.  Boquist’s told the Senate President: “Mr. President, and if you send that state police to get me, Hell’s coming to visit you personally.”  During the walkout, Boquist said that State police should “send bachelors and come heavily armed.”  The majority believed that Boquist’s language was threatening.  In response, the majority ordered Boquist not to enter the state capitol without giving 12 hours’ notice.  Boquist filed a First Amendment retaliation claim against majority party state senators for allegedly retaliating against him for engaging in protected speech.  The trial court dismissed Boquist’s lawsuit, and he appealed.

The Ninth Circuit concluded that Boquist adequately alleged that he engaged in constitutionally protected speech and was subject to a materially adverse retaliatory action on account of that speech.  The Ninth Circuit held that the framework used to review speech restrictions on government employees should not be employed to review speech restrictions on elected officials. An elected official raising a First Amendment retaliation claim has the initial burden of pleading and proving that: (1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action.

Upon such a showing, the burden shifts to the official to demonstrate that even without the motivation to retaliate, the official would have taken the action complained of.  The Ninth Circuit additionally explained that the framework that applies to evaluating speech restrictions that the government imposes on its employees is not applicable to evaluating restrictions on the speech of elected officials.  Nor does the balancing test set forth in Pickering v. Board of Education of Twp. High Sch. Dist. 205, 391 U.S. 563, 564 (1968), apply to an elected official’s claim of First Amendment retaliation by the official’s elected peers.

Applying this framework, the Ninth Circuit held that there was no doubt that Boquist’s complaint raised a plausible inference that he was engaging in protected speech, and that even a statement that threatens violence may not be a true threat if the context shows it to be emotionally charged rhetoric or political opposition.  The Ninth Circuit also found that Boquist satisfied the second prong of the test because his complaint plausibly alleged that the 12-hour notice rule was a materially adverse action.

Boquist v. Courtney (2022) 9th Cir. No. 20-35080.

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