There is an interesting free speech decision out of the United States Court of Appeals for the Ninth Circuit this week. In Lathus v. City of Huntington Beach, a unanimous panel ruled that a member of a municipal advisory board can be fired for her association with Antifa. The opinion is clearly correct on a constitutional level, but there are some troubling elements given the underlying exercise of speech under the First Amendment.
Here are the basic facts laid out by the Court:
While serving as a Huntington Beach City Councilperson, Kim Carr appointed Shayna Lathus to the city’s Citizen Participation Advisory Board (“CPAB”) after Lathus lost a 2018 election for a seat on the City Council. Each councilperson appoints one member to the seven person CPAB and may remove that member without cause …The CPAB’s mandate is to “provide citizen participation and coordination in the City’s planning processes” related to a federal Department of Housing and Urban Development block grant program, with an emphasis on addressing issues faced by “low and moderate income households.” Id. § 2.97.030. It holds regular open meetings to “assess the needs of the community,” “evaluate and prioritize projects,” “obtain citizen input,” and “provide specific recommendations” to the City Council…After being appointed to the CPAB, Lathus was photographed at an immigrants’ rights rally standing near individuals whom Carr believed to be “Antifa.” Carr then instructed Lathus to write a “public statement on social media denouncing Antifa,” and Lathus did so, believing that continuing in her “position on the . . . CPAB depended” on it. Carr deemed the statement insufficient and removed Lathus from the CPAB, stating that “[t]hose that do not immediately denounce hateful, violent groups do not share my values and will not be a part of my team.”
Lathus sued the City of Huntington Beach, claiming retaliation for exercising her First Amendment rights to free speech, association, and assembly. She also claimed that Carr’s demand for a public statement amounted to unconstitutionally compelled speech. The district court dismissed the case.
On appeal, Judge Andrew Hurwitz wrote the majority opinion and was joined by Judge Paul Watford and District Judge Eric Vitaliano (E.D.N.Y.), sitting by designation.
The problem for Lathus is that this is a volunteer position that serves as the public representative of Carr.
[T]he First Amendment [does not] protect[] a volunteer member of a municipal advisory board from dismissal by the city councilperson who appointed her and is authorized under a city ordinance to remove her. Because the advisory board member is the “public face” of the elected official who appointed her to the body, we hold that she “can be fired for purely political reasons.”
While serving as a Huntington Beach City Councilperson, Kim Carr appointed Shayna Lathus to the city’s Citizen Participation Advisory Board (“CPAB”) after Lathus lost a 2018 election for a seat on the City Council. Each councilperson appoints one member to the seven-person CPAB and may remove that member without cause. …
…
In attending the rally, Lathus plainly engaged in activity protected by the First Amendment. … But … the First Amendment rights of government officials are not absolute. It is settled, for example, that an appointed public official can be removed for engaging in otherwise protected First Amendment activity if “political affiliation is an appropriate requirement for the effective performance of the public office involved.”
The panel relied upon the plurality decision in Elrod v. Burns (1976), where the Court held that employees in “policymaking positions” may be dismissed for engaging in activities protected by the First Amendment so that “policies which the electorate has sanctioned are effectively implemented.” In Branti v. Finkel (1980), the Court further explained that “the ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.”
The Court held:
In reviewing dismissals under the Elrod–Branti framework, we have sometimes analyzed whether a position is “policymaking” or “confidential.” But Branti makes plain that “a position may be appropriately considered political even though it is neither confidential nor policymaking in character.” We must therefore determine whether “commonality of political purpose” with Carr is an appropriate requirement for Lathus’s service on the CPAB…
The CPAB consists of seven members, each appointed by a separate councilperson, who can also remove that member without cause. Because each member of the CPAB, an entity that advises on matters of policy and solicits public feedback, is appointed and removable by a particular councilperson, board members speak to “the public and to other policymakers on behalf of the official” who appointed them, a factor that indicates “responsiveness to partisan politics and political leaders.” In other words, because the public could readily infer that a CPAB member’s actions and statements while serving in the role reflect the current views and goals of the appointing councilperson, Lathus was Carr’s “public face” on the board, and the public was entitled to assume that she spoke on Carr’s behalf.
Moreover, “the provision of housing to low and middle income city residents is a vital political issue,” and the CPAB is designed to influence policy decisions by the Council on such programs. … It conducts “regular monthly meetings” open to the public. Because a CPAB member is thus “an adviser [who] formulates plans for the implementation of broad goals,” Elrod, a councilperson is entitled to an appointee who represents her political outlook and priorities.
This case thus presents a different situation than those in which we have held that retaliation against officeholders for their exercise of First Amendment rights is forbidden. For instance, we have found that First Amendment protections extend to those who “did not have authority to speak to the media without prior approval of higher-ranking officials,” or did not “formulate or substantially influence plans to implement the broad goals” of the appointing authority. In contrast, Lathus’s role on the CPAB required her to speak to the public and plan low-and middle-income housing and development. …
Given the statutory structure and duties of the CPAB, Lathus, like each of her fellow board members, was the “public face” of her appointor. Lathus could plainly “undermine [Carr’s] credibility and goals,” and therefore could be dismissed for lack of political compatibility.
The underlying case is troubling. The attendance of an immigration rally with Antifa members is a core exercise of free speech, as the panel noted. In this case, Lathus agreed to distance herself from their cause.
Ironically, Antifa is notorious for “deplatforming” and silencing those with opposing views. The group regularly seeks to cancel or to intimidate others for their political views. It expressly rejects free speech values. Despite my long criticism of Antifa (including congressional testimony) as one of the leading, and most violent, anti-free speech groups in the country, I have opposed the group being designated as a terrorist organization. The accommodation sought by Lathus for her political association would never be afforded by Antifa to those with opposing views. She was attending a rally with one of the most violent and intolerant groups in the history of the United States.
We have discussed numerous cases of employees and artists being fired for exercising free speech outside of the workplace. It raises a concern over a “Little Brother” problem of punishing speech. This case is different in that Lathus held a political position as effectively the public representative of Carr. As such, Carr is not obligated to continue a voluntary political association that is inimical to her own beliefs or political standing.
Each council person appoints one member, and may remove that member without cause. Without. Cause.
If you can only appoint one member, then that member is your only opportunity to represent your values or goals. If at any time you do not believe that representation is accurate, you can remove that member.
For any reason.
Her lawsuit was frivolous. It would force the council person to be represented against her will and contrary, in her opinion, to her values.
It doesn’t matter if she loves or hates Antifa. She is not entitled to the position.
I watched part of Democrat Rep Veronica Escobar’s speech on the House floor, in which she blamed all Republicans for the Jan 6th riot. She relived what it was like when the rioters banged on the door. I would ask Ms Escobar to imagine what it was like for home owners and business owners in the CHOP zone, when armed gunmen seized entire city blocks, and held it, keeping police out, while they murdered and raped with impunity for a year. She should imagine what it was like for people who needed law enforcement, while her party defunded and demoralized police across the country. Murder rates and rapes increased because of the actions of HER party, while SHE enjoyed taxpayer funded private security. SHE was evacuated by security when the January 6th protestors trespassed in the Capitol. There is no private security for people whose police were defunded. The single moms cowering with their kids as gang violence exploded were on their own, while HER party made martyrs out of violent criminals, and HER party did away with bail to get those criminals back out on the street again. HER party created the most dangerous laws in America, in which they did away with bail, and didn’t consider someone on house arrest to really be gone until 48 hours, plenty of time for a wife beater to to kill the woman who pressed charges.
So, yeah, Ms Escobar, cry us a River about how scared you are of Republicans with any political power, while your party used your power to defund police, free violent criminals, open the borders to the fentanyl that has killed so many, raised gas prices, raised the price of energy, caused rolling blackouts because they forced electric utilities to choose unreliable and expensive wind and solar over reliable and inexpensive fossil fuels and nuclear energy, raised inflation until groceries cost so much it’s a choice between food and keeping the lights on, making more people rely in unhealthy processed foods, made labor costs so high that businesses folded, and who are responsible for a public education system that produces 40% of students reading below grade level.
https://www.foxnews.com/us/americas-most-dangerous-law-goes-into-effect
Karen S.
Well said.
Thanks, UpstateFarmer.
Karen– I wish I had written that. Excellent. I wish a Republican member of Congress would read it on the House floor.
Republican members of congress don’t have the stones.
Thanks, honestlawyermostly
Talk about a two-edged sword! I agree that Antifa is a terrorist organization and wouldn’t want to see anyone in any way affiliated with it on any kind of advisory board. But then Merrick Garland hasn’t lifted a finger to catch people who firebombed pregnancy help centers, but treats pro-life protestors as terrorists.
Responding to James:
If there was a sane “declassification process”, I would predict maybe the largest class of victims of constitutional-crimes are government employees and their non-government family members, spouses and associates.
FYI: most government employees as cops, FBI agents, DHS agents, CIA agents, etc usually aren’t liberal or progressive. Most probably don’t support the ACLU.
This may be a larger class of constitutional crime victims than even minority groups, under federal criminal laws Title 18 US Code 245, 42 USC 1983, etc.
This is a class of crime victims with fewer constitutional rights than any other Americans. Many, if not most, are simply born into this lawless system.
Even if they joined voluntarily, the first act was the constitutional Oath of Office. Once joined they likely found out their employers don’t subscribe to that loyalty oath but are prevented from revealing this information. Essentially prison with fewer rights than the poorest citizen.
The agencies also seem to imprison their family members – that never joined or never signed up. There is string evidence to support this prediction.
After 9/11, we locked those that “refused to betray their Oath of Office”. Those that ordered torture, cruel treatment and war crimes (felony crimes under U.S. law and international law) were rewarded and promoted.
This is a danger to all Americans, if those on the inside are punished for being loyal, they can’t protect us either.
James do you think the Bush officials that admitted to committing felony crimes on national TV should be locked up also? Bush officials violated Ronald Reagan’s Torture Treaty. In 2023, we now they they intentionally misled the American voters, these weren’t mostly honest mistakes trying to protect the nation.
Good! The ninth circuit is doing what dems failed to for a few years now. There is no such thing as ‘fiery but peaceful’. If sh** is on fire, crimes have been committed. Sick to death of modern (millennial and younger, and the older that groom them) progressives. Actions have consequences, and should have consequences, cry all you like to mom and dad or Soros or the ACLU. I do not have an ounce of sympathy for these people. Not one single ounce. Send them to jail. Leftists are the only domestic terrorists that actually exist in the 21st century, and they are all very privileged, mostly white, little snots that never got a spanking. Spank away, ninth circuit, spank away.
During non-work hours, at non-work locations, former U.S. Supreme Court Justices Ruth Bader Ginsburg and Antonio Scalia used to “stand next to one another”.
Using the logic of this case, that would mean they both secretly agree with each other on every issue.
If Congress creates an “Ethics Officer” at the U.S. Supreme Court (which Congress is debating right now) isn’t this the same rationale?
Take it a step further, Justice Clarence Thomas has a direct link to a major alleged participant of the January 6 Coup attempt (his wife). How is this different from the legal concept of this case? Maybe don’t stand next to Justice Thomas?
Ashcroft, each Councilperson only gets to appoint one member, whom they can remove at any time without cause. Without. Cause. Arguing about whether she likes,or dislikes Antifa, or whether she has the right to publicly support, or not support, Antifa, has no relevance. This member could be dismissed and replaced at any time and for any reason.
That means a different Councilperson could replace a member who criticized Antifa, or questioned election integrity. Or maybe she wore white shoes after Labor Day. Ate turkey on Thanksgiving when the Councilperson wants more vegan representation. Maybe she wore orange when it really was not on her color wheel.
Or maybe the council person discovered someone she thinks more accurately represents her goals, and just wanted that person on the board.
That’s her legal right.
If at will employees or appointees keep engaging in expensive lawsuits, then de facto it’s no longer at will, but forced.
Just yesterday on national television, all of us saw members of Congress standing next to “Pro-Coup/Insurrection” members of Congress. Should those simply standing beside these other Congressmen be fired?
Sometimes Democrats stand beside the “Pro-Coup/Insurrection” members, should those Democrats be fired as well? They are standing near them, they must agree on things.
If we are using “guilt-by-association”, Section 3 of the 14th Amendment (Disqualification Clause) requires they be fired also if we allow “guilt-by-association” (illegal in the USA since 1791).
OK, Ashcroft. Stand by your logic.
By that definition, the entire Democrat Party is responsible for the year of riots, arson, destruction of businesses, terrorism against police officers, murder of police officers, bombing of federal buildings, attempted murder of Supreme Court Justice Brent Kavanaugh, the anarchy of CHOP/CHAZ, in which armed gunmen held entire city blocks of Seattle at gun point and shook down businesses, raped, and murdered with impunity while keeping out cops.
On the one hand, the Republican Party supports law enforcement, while Democrats defunded it and promoted anti-cop bigotry, which led to more murders. Republicans believed rioters should be treated fairly and equally. Everyone should be equal in the eyes of the law. It is not fair for people accused of trespassing to rot in solitary for 9 months, while Democrats either prevented the charging, or bailed out, rioters. Most January 6th rioters were charged with trespassing and illegally parading, so they should have been treated as low level offenders. Only those who assaulted anyone should have been treated as violent. But that’s not what happened. Rioters were not treated equally. Meanwhile, violent Democrat rioters were given special treatment.
How does this cognitive dissonance work for you? How does your brain ignore a year of Democrat violent riots, threats to burn cities to the ground, yet hyper focus on one single riot in the Capitol, obviously applying wildly different standards?
How does your brain dismiss Democrats calling every election they lost stolen or hacked, but when Republicans question election integrity, you think they are insurrectionists? Hillary Clinton, Stacey Abrams, and everyone screaming on their knees about the 2016 election are “election deniers.” The Democrat House Minority Speaker is a well-documented “election denier.” But that’s okay for you because politics make all the difference.
That’s not rational.
Many years ago the U.S. Department of Justice used to enforce the “Hatch Act” – if a government employee used “politics” as part of their office job duty or government owned property. One could go to jail for such a violation.
There is recent legal precedent. Bush White House advisor, Monica Goodling, was literally “political-purging” the U.S. Department of Justice firing federal prosecutors and other DOJ employees for the “crime” of being homosexual, liberal or Democrat.
Goodling was offered “conditional immunity from criminal prosecution” from Congress if she told the whole truth about her illegal activities, including possible Hatch Act violations.
Volunteer or not, the government official used their government authority and taxpayer owned office to fire someone using “politics” and under “color of law” ordered the volunteer to speak unfree. This political retribution was justified by a photo standing next to someone suspected of belonging to an unpopular group.
Clinton. Travelgate.
The court is right on this.
This is by its own definition, a PR position. A representative of the representative. She is perfectly fine, maybe even encouraged to have ONLY the representation that best exemplifies the elected members goals and morals. Some may disagree…..they need to get of their backside and take the action to vote this person out of their position of power.
As a people we must take back that power which is ours. Stop running to judges. They are no better and no wiser than the people.
It’s much more complicated. First, is an organization “Top-Down” – do the “top managers” dictate and enforce rules to it’s members like a military model. In this “Top Down” model, do the top managers approve of or condone violence and illegal activities?
Or is the organization grassroots “Bottom-Up” – where the “top managers” have little to no control over it’s members. Largely a de-centralized model?
The 1st Amendment makes “Guilt By Association” illegal and unconstitutional in the USA. The American system required “individualized” probable cause of a past crime. Preemption policies are never allowed to subvert any individual’s rights to constitutional due process.
Anyone reading this can go on the “Inspector General of the DOJ website” today and read about real crimes, real criminals, including violent crimes – where the criminal perpetrators happen to be constitutionally oath-sworn FBI employees or DHS employees or Secret Service employees. Those federal employees convicted in a court of law usually serve prison time in federal prison. This is a “Top Down” model where subordinate employees follow the culture and orders from “top management”.
Does that mean the other 99% of federal employees are criminals or disloyal to their Oath of Office? Most federal employees are probably really good people, not criminals and are very loyal to their Oath of Office to uphold the U.S. Constitution [a wartime governing charter and employment contract].
In this example, did the “top managers” of the organization (explicitly or implicitly) advocate violence, law breaking or betraying one’s Oath of Office? Probably not. There were likely a few bad apples that went rogue, not following the mission of the organization. This same example works for your local “Police Internal Affairs” – most police officers are good but a few bad apples don’t justify “guilt-by-association” unless this is the culture controlled by “top management” (police chiefs, police unions, mayors, etc).
“Guilt-by-Association” has been illegal in the United States since 1791. No organization is monolithic, it’s way more complicated than that.
when you are ready to get back to reality, perhaps your comments may gain traction.
Plausible deniability and woulda, coulda, shoulda worked well in kindergarten, but real life not so much
However…but….never carried a debate.
The Woman lost an election and was given a Participation Trophy that was a Loan callable at anytime for ant reason.
She stepped on a virtual landmine by choice and paid the penalty for that….she got canned per the contract.
End of story….move along Counselor!
Just like a mortgage, car loan, student loan or enlistment contract in the military……YSTFC (as used in the military meaning you signed the contract)….now you have to live up to the requirements of that contract.
At least until a Democrat wishes to find another way to buy votes using Tax Dollars anyway.
In Medicine, a Board would say that the individual has lost the confidence of the Board that the said individual could adequately and appropriately fulfill their duties and must severe the relationship with the medical group. This will often cover near malpractice which seems to be a bad trend in an individual and you want them gone before they blow up the place. It is reportable to the National Practitioner Database
Antifa have proven themselves over and over again to be the most violent and least intelligent white people in the nation. They are a terrorist organization, aided and abetted by local government ((Gee, where is/isn’t antifa active…I don’t know…they seem active in areas run by stupid white people. Ted Wheeler in portland, the ex-C’ville mayor hosted them, SoCal and Oakland – shockers, Tacoma – no way). They have no better standing than the KKK or the neocons.
Ask the left what they would do if a cop was discovered going to a KKK meeting. I know I would support firing the cop, as would the leftists, but they have no issue with ANTIFA membership?
Jonathan, I am sorry to disagree with you but ANTIFA firebombs police stations, attacks courthouses, riots in the streets, attack people in their cars and they hide their identities as a way to influence policy through the use of terror…they are terrorists.
antifa is a state sponsored terrorist group
OT: Regarding whether bureaucrats and elected officials violated the 1st Amendment when they advocated for censorship by Twitter and other social media companies.
The Supreme Court said in Norwood v Harrison (1973) that it is “axiomatic” that state officials may not “encourage, induce or promote” action by private actors that would be prohibited to the state itself. That case involved the provision by the state of Mississippi of assistance in the form of text books to private schools that engaged in racial discrimination. But the principle under the 1st Amendment is the same. Jeb Rubenfeld wrote an op ed in the WSJ discussing this issue a couple of days ago.
There is no doubt that bureaucrats and elected officials encouraged, induced and promoted censorship by Twitter, as evidenced by the Twitter Files, and they likely did the same to other social media platforms. Personally, I think they also engaged in implicit coercion. But under the standard articulated in Norwood, there is no need to prove that.
Hello Daniel: (Happy New Year to you.) Several weeks ago I posted a comment on this blog that I was not understanding why so many other commenters (you can guess who) were looking for, or denying the existence of, “coercion” by FBI actors; in fact, I think my exact words were that I was “looking for evidence of friendly or collusive transactions, not coercive activity,” and I pretty sure I likely cited case law evincing mere encouragement, persuasion, promotion, etc. (I never save or review my comments, and don’t know how to recover or link to them on this site, but you or S. Meyer might know how to pull them up? I know he frequently re-posts earlier comments.)
In any event, you and I are clearly on the same page here.
I would hope that the good professor might address this, but I don’t think he does this unless there is either a pending or recently adjudicated case.
.”but you or S. Meyer might know how to pull them up?”
Lin, thanks for your vote of confidence, but I don’t think I can find what you are looking for, however, I do remember your comment indicating that just a little “significant encouragement” (those may not be your exact words) is collusion. I remember because I agreed that coercion wasn’t required to come to that conclusion.
I work in law enforcement and for us, the trigger is whether your actions bring discredit to the Department. If you publish an article in a newspaper that is critical of the Department or its policies (whether true or not), it opens the door for the charge that your actions have brought discredit to the Department. Some Departments have extended this interpretation to personal Facebook and other social media accounts while others haven’t. Lathus’ appointment to the Citizen Participation Advisory Board is a public appointment representing the city of Huntington Beach and such, her public actions might come under additional scrutiny. Thanks very much for posting this article.
but if you support BLM burning down a city it is fine?
Correct me if I’m wrong, but doesn’t “Antifa” stand for “Anti-Fascism”? Their goal is to prevent our government from being overgrown by fascists.
To put this in context, on the January 6 coup attempt, the Trump extremist wing (real fascists) were trying to falsely blame the “Anti-Fascist” group (Antifa) for invading the Capitol.
The real fascists were manufacturing rumors that anti-fascists were trying to overturn the election results (verified by more than 60 judges, including Trump appointed judges).
The January 6 Committee found Antifa had nothing to do with the January 6 coup attempt.
Ashcroft, you talk about the one time that MAYBE ANTIFA wasn’t involved in violent insurrection yet you fail to discuss the many times they set fire to police stations, FEDERAL courthouses and many other government holdings????
Responding to hullbobby:
If that’s accurate, I agree with you that those violent tactics should never be used.
Any organization (left or right) has extreme wings that commit violent acts, so not sure if those tactics are approved by the organization itself or was just some rogue elements.
If the organization itself doesn’t promote or condone violent acts, not sure you can penalize a government employee’s 1st Amendment legal activities.
The 1st Amendment is not limited to just freedom of speech, it also outlaws “guilt-by-association” and freedom to petition the government for grievances.
If we can penalize using “guilt-by-association” (illegal practice in the USA) then we could condemn entire organizations for the actions of a few nuts.
For example: what if 1 person commits violence belonging to the NRA, ACLU or Women’s Rights organization? Are the other 99% guilty? Is that probable cause for the other 99%?
AZ, wait, there’s a peace loving faction of Antifa?
“If that’s accurate!?!?.,,,Good grief! There’s enough video documentation of said activities in the archives of the nation’s media to offer evidence of same to the nines!
“. . . doesn’t “Antifa” stand for “Anti-Fascism”?”
About as much as communists are anti-fascist. Or the Crips are anti-Bloods. Or the Chicago mafia is anti-New York mafia.
Criminal gangs do not like competition.
“Correct me if I’m wrong, but doesn’t “Antifa” stand for “Anti-Fascism”? “
Correct me if I am wrong, but doesn’t Nazi work camps mean extermination camps?
Hahahhahhahha…and you BELIEVE them rather than their ACTIONS?? They are way more violent than ANYBODY that showed at the Capitol on 1/6/21, other than the Antifa and FBI that were there instigating things.
But they had everything to do with the attacks on the federal courthouse in Portland, the White House and other civic institutions. Is that not considered insurrectionist?
AZ, you just cannot help yourself. TDS
Antifa are the Sturmabteilung of the 21st Century and about as fascistic in word and deed as a domestic terrorist organization could be.
You obviously don’t know what the definition of fascist is
Ashcroft, let me correct you. A person or organization can claim anything. That doesn’t make it true. Michael Vic claimed to love his dogs, which he ran in pit fighting.
Originally, Antifa was a Communist group that opposed anything not Communist, including Capitalism and Fascism.
Today, Antifa labels anything it opposes as Fascist. It destroyed small businesses as supposedly Fascist. Chased down little old ladies in cars who wouldn’t obey their roadblocks as supposedly Fascist. Assaulted an old man because he had a Southern incense plate because he was supposedly Fascist. Deems Capitalism Fascist. Antifa enjoys its own free speech, but physical assaults anyone they disagree with which, ironically, is an aspect of Fascism.
You have to look at Antifa’s actions, the violence, destruction of businesses, arson, vandalism, and assaults on people to interfere with their free speech, and determine if they are actually fighting Fascism at all. Republicans and Libertarians believe in strong individual rights, including free speech. That’s the opposite of Fascism, yet Antifa targets them.
This is why you have to look beyond the stated title and verify bona fides.
Does China belong on the UN Human Rights Council, while it engages in genocide against the Uighur? What about the Ayatolla’s statements that women are freer in Iran, where they and their supporters are executed for protesting the Morality Police’s murder of Mahsa Amini for not wearing hijab correctly, than here in the US?
Karen S, you are on fire today. Saves me a lot of typing. Which is really a good thing because I never learned to type.
“You lie down with dogs you might catch fleas.” And thats what Carr must have seen.
I’m thinking that jail time is a better outcome.