924 F.3d 1297
9th Cir.2019Background
- Montana law (Mont. Code Ann. § 2-2-136(4)) required confidentiality of ethics complaints and related investigation records until the Commissioner either dismissed the complaint or accepted it for filing. Complainants were barred from releasing the complaint itself or related documents during that period, but could disclose underlying facts or that a complaint was filed.
- Rep. Brad Tschida filed an ethics complaint against Governor Steve Bullock and Director Meg O’Leary; he disclosed the complaint publicly before the Commissioner made a decision, contrary to § 2-2-136(4).
- Commissioner Jonathan Motl publicly threatened criminal prosecution for the disclosure; he later dismissed Tschida’s complaint as frivolous and for failure to state a claim. No criminal charges were filed.
- Tschida sued under 42 U.S.C. § 1983 seeking injunctive relief (against current Commissioner Mangan) and damages (against former Commissioner Motl) on First Amendment grounds.
- The district court held the confidentiality provision unconstitutional as to elected officials (enjoined enforcement) but constitutional as to unelected officials; it granted Motl qualified immunity for damages. Tschida appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2-2-136(4)’s confidentiality requirement is content-based and what scrutiny applies | Tschida: law restricts speech about complaints and is content-based, so strict scrutiny applies | State: statute is content-neutral or justified to protect privacy and institutional interests | Court: statute is content-based; strict scrutiny applies |
| Whether the statute survives strict scrutiny as to unelected officials | Tschida: statute is not narrowly tailored and is over-/underinclusive, so it fails | State: compelling interest in protecting privacy of unelected employees and personnel information | Court: although privacy is compelling for certain categories, the statute is not narrowly tailored and is facially unconstitutional as applied generally (reversing lower court) |
| Whether statute is permissible as to elected officials | Tschida: elected officials have no comparable privacy interest; speech restriction invalid | State: privacy/interests still justify confidentiality | Court: confidentiality is invalid as to elected officials (district court had enjoined enforcement; appellate court affirms that § 2-2-136(4) violates First Amendment) |
| Whether former Commissioner Motl is entitled to qualified immunity for threatening enforcement | Tschida: Motl unlawfully threatened enforcement and is not entitled to immunity | Motl: relied on a duly-enacted statute; reasonable to think statute constitutional given distinctions from prior cases | Court: Motl entitled to qualified immunity because reliance on statute was not objectively unreasonable |
Key Cases Cited
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (U.S. 2015) (content-based regulation test)
- McCullen v. Coakley, 573 U.S. 464 (U.S. 2014) (content analysis where statute requires examining message)
- Lind v. Grimmer, 30 F.3d 1115 (9th Cir. 1994) (confidentiality of ethics complaints treated as content-based; applied strict scrutiny)
- Smith v. Daily Mail Publ’g Co., 443 U.S. 97 (U.S. 1979) (underinclusiveness can invalidate speech restrictions)
- Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (U.S. 2015) (tailoring and compelling-interest analysis in First Amendment context)
- Brown v. Entertainment Merchs. Ass’n, 564 U.S. 786 (U.S. 2011) (striking statute for underinclusiveness/tailoring problems)
- Nixon v. Administrator of General Services, 433 U.S. 425 (U.S. 1977) (public officials retain some privacy rights)
- NASA v. Nelson, 562 U.S. 134 (U.S. 2011) (constitutional recognition of certain employee privacy interests)
- Grossman v. City of Portland, 33 F.3d 1200 (9th Cir. 1994) (qualified immunity where officer reasonably relies on statute)