A: I am a member of a Citizens Advisory Committee. It has quasi status as a ”affiliated” committee with the city, as it advises the city on federal grant funding within the citizen participation plan.
I publish a blog which is very critical of political opponents. Last week, members of the committee tried to kick me off claiming my writing outside the committee was considered inflammatory.
I believe this is prior restraint and a violation of my free speech rights. If I write and speak out as a private citizen outside of a membership of an advisory committee, my membership should not be affected, correct?
Q: The First Amendment indeed forbids government officials from retaliating against individuals for speaking out. Blair v. Bethel School Dist., 608 F.3d 540, 543 (9th Cir. 2010).
In order to recover for such retaliation, you would have to prove that
(1) you were engaged in constitutionally protected activity;
(2) as a result, you were subjected to adverse action by the defendant that resulted in a chilling effect on further speech; and
(3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action. Id. at 543.
As in Blair, it may be that your critical statements are protected by the First Amendment, and even that your statements led to the board’s attempts to remove you from your position. Id.
However, if the “adverse action” taken by your peers can be categorized as one that falls into the political arena, as was the case in Blair, then, depending on the circumstances, a court might not determine that your First Amendment rights were violated.
In Blair, the 9th Circuit found that although the plaintiff’s comments that were critical of the school district’s superintendent were protected by the First Amendment, the board, in removing the plaintiff from the school board, did not violate his First Amendment rights. Id.
The court first considered that the “adverse action” of removing the plaintiff from the board was a “minor indignity, and de minimis deprivations of benefits and privileges on account of one’s speech do not give rise to a First Amendment claim.
Rather, for adverse, retaliatory actions to offend the First Amendment, they must be of a nature that would stifle someone from speaking out.” Id. at 544.
The court discussed the “prototypical plaintiff” in such cases as a government worker who loses his job because of some public communication critical of his employer. Id.
“Blair has little in common with these prototypical plaintiffs. Through the ordinary functioning of the democratic process, he was removed from a titular position on a school board by the very people who elected him to the position in the first place.” Id.
Second, the court found that “more is fair in electoral politics than in other contexts.” Id.
Because political bodies have “internal leadership structures” and structures that allow for “members of those bodies to be openly partisan in voting for and against one another for leadership positions,” the First Amendment does not protect “casualties of the regular functioning of the political process.” Id. at 545.
Third, the court found that the members who voted Blair off the board also had protectable speech interests, and by voting Blair off the board, they were sending a message to the public that they “viewed [the superintendent’s] performance very differently from the way Blair saw it, and wanted to distance itself from Blair’s criticism of the superintendent.” Id.
“While Blair certainly had a First Amendment right to criticize [the superintendent] and vote against his retention as superintendent, his fellow Board members had the corresponding right to replace Blair with someone who, in their view, represented the majority view of the Board.” Id. at 546.
As you can see, the analysis may depend on the particular facts of the case. But the committee may argue in your situation that it feels that your views do not represent the majority view of the public that the committee is charged with representing.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.