52 F.4th 773
9th Cir.2022Background
- Anita Green, a transgender woman, was denied entry to Miss United States of America for failing the pageant’s "natural born female" eligibility rule; she sued under the Oregon Public Accommodations Act (OPAA).
- The district court granted summary judgment to the Pageant, reasoning that First Amendment expressive association protected its exclusion of Green. Green appealed.
- The Ninth Circuit affirmed, but on compelled-speech grounds: applying the OPAA would force the Pageant to alter its expressive message by requiring removal of its “natural born female” rule.
- The court held beauty pageants are inherently expressive (like theatrical productions), and selection of contestants is a central part of that expression. Forcing inclusion would change the Pageant’s message.
- The court rejected the district court’s reliance on the O’Brien incidental-burden test, treating OPAA application as a direct content-based compelled-speech regulation subject to strict scrutiny.
- The majority assumed, for purposes of the constitutional analysis, that OPAA could apply; Judge Graber dissented, arguing the court should have first decided whether OPAA actually applies under Oregon law (constitutional avoidance/Erie).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OPAA can be applied to force Green’s inclusion in the Pageant | OPAA prohibits discrimination based on gender identity; Pageant is a public accommodation and must admit Green | Pageant asserted First Amendment defenses (compelled speech and association) and contended contestant selection is protected expression | Court assumed OPAA’s applicability for analysis and held application would violate First Amendment (compelled speech) |
| Whether the Pageant’s contest structure is protected speech | Green: selection/judging are commercial/competitive, not core speech | Pageant: pageant is expressive; contestant selection conveys the Pageant’s message about womanhood | Court: pageants are expressive; selection of contestants is integral to the message and protected |
| Proper First Amendment framework: O’Brien incidental-burden test vs. Hurley/compelled-speech analysis | Green: O’Brien applies because OPAA regulates conduct with incidental speech effects | Pageant: Hurley/Dale apply because compelled inclusion would directly alter expressive content | Court: O’Brien inapplicable; Hurley and compelled-speech strict-scrutiny analysis govern |
| Whether government interest justifies compelled inclusion | Green: Oregon’s interest in eliminating discrimination is compelling | Pageant: interest is insufficient to mandate compelled affirmation of a message | Court: state’s general anti-discrimination interest lacks the necessary precision and cannot justify compelled speech here; strict scrutiny fails |
Key Cases Cited
- Hurley v. Irish‑Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557 (1995) (private parade organizers cannot be forced to include expressive units that alter the parade’s message)
- United States v. O’Brien, 391 U.S. 367 (1968) (test for government regulation that incidentally burdens expressive conduct)
- Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (forced inclusion of an unwanted member may violate expressive association)
- Riley v. Nat’l Fed’n of the Blind of N.C., 487 U.S. 781 (1988) (speakers retain autonomy to choose message; compelled speech alters content)
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content-based regulation of speech triggers strict scrutiny)
- Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., 138 S. Ct. 2448 (2018) (compulsory affirmation of objectionable speech raises heightened First Amendment concerns)
- Bose Corp. v. Consumers Union, 466 U.S. 485 (1984) (appellate courts must independently examine First Amendment records)