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.