In Lathus v. City of Huntington Beach, published January 5, 2023, the 9th Circuit Court of Appeals affirmed dismissal of a 42 U.S.C. section 1983 action. A city councilperson appointed the plaintiff to the city's Citizen Participation Advisory Board. Under the municipal code, each councilperson appoints one member to the board, and may remove the member without cause. The board's mandate is to provide citizen participation and coordination in the city's planning processes. After her appointment, plaintiff was photographed at an immigrants' rights rally standing near individuals whom the councilmember who appointed plaintiff believed to be "Antifa." She directed the plaintiff to write a public statement on social media denouncing Antifa. The plaintiff did so. She believed continuing her position depended on doing so. The councilmember deemed the statement insufficient. She removed the plaintiff from the board. The councilmember stated 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.” The plaintiff sued the city, claiming retaliation for exercising her First Amendment rights to free speech, association, and assembly. She further alleged that the demand for a public statement amounted to unconstitutionally compelled speech. The district court dismissed the complaint, holding that the councilmember acted within her rights.
The 9th Circuit agreed. The critical issue is whether the plaintiff was effectively "a political extension" of the councilmember on the board. While the plaintiff's attendance at the rally was First Amendment protected activity, the First Amendment did not insulate her from dismissal that was the outcome of the regular functioning of the political process. The plaintiff was an appointed volunteer in public service. That by itself did not remove her First Amendment protection. The question was whether commonality of political purpose with the appointing official was an appropriate requirement for the plaintiff's service on the board. Because each member of the board, appointed by a separate councilmember who can also remove that person without cause, each member speaks to the public and other policymakers on behalf of the official who appointed them. The board is a conduit between the community and the city council on the vital political issue of providing housing to low and middle income city residents. Each board member is thus an advisor who formulates plans for the implementation of broad goals. A councilperson is therefore entitled to an appointee who represents her political views and priorities. She cannot claim retaliation because she was dismissed for not sharing her appointing councilmember's values. Further, an elected official can compel the public speech of her representative, because that speech will be perceived as the elected official's own. The plaintiff's compelled speech claim thus fails as well.
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