BRIAN J. BOQUIST v. PETER COURTNEY, Orеgon State Senate President, in his official capacity; FLOYD PROZANSKI, Senator, in his official capacity as Chairman of the Senate Special Committee on Conduct; JAMES MANNING, Senator, in his official capacity as member of the Special Senate Conduct Committee; DEXTER JOHNSON, in his official capacity as Legislative Counsel; JESSICA KNIELING, in her official capacity as interim Human Resources Director; BRENDA KAY BAUMGART, in her official capacity as contract investigators to the Oregon State Senate; DARON HILL, in his official Legislative Administration capacity; MELISSA J. HEALY, in her official capacity as contract investigators to the Oregon State Senate, and all in their official capacities in the Legislative Branch of the State of Oregon
No. 20-35080
United States Court of Appeals, Ninth Circuit
April 21, 2022
D.C. No. 6:19-cv-01163-MC
FOR PUBLICATION
OPINION
Appeal from the United States District Court for the District of Oregon
Michael J. McShane, District Judge, Presiding
Submitted October 6, 2021*
Portland, Oregon
Filed April 21, 2022
Before: William A. Fletcher, Sandra S. Ikuta, and Daniel A. Bress, Circuit Judges.
Opinion by Judge Ikuta
* We previously granted appellant‘s motion to submit this case on the briefs without oral argument. See
SUMMARY**
Civil Rights
The panel reversed the district court‘s dismissal of а First Amendment retaliation claim in an action brought by Oregon minority party state senator Brian Boquist who alleged that majority party members retaliated against him for engaging in protected speech when, in response to two statements made by Boquist, defendants ordered him not to enter the state capitol without giving them 12 hours advance notice.
After minority party state senators in Oregon walked out of the state senate to prevent a quorum, members of the majority party threatened to send the state police to arrest them and return them to the capitol. Boquist made two statements stating he would resist any such attempt to arrest him. The first, made on the floor of the senate, stated in part: “Mr. President, and if you send that state police to get me, Hell‘s coming to visit you personally.” The second, made to a reporter in the state capitol building, stated in part: “This is what I told the [state police] superintendent: Send bachelors and come heavily armed. I‘m not going to be a political prisoner in the state of Oregon. It‘s just that simple.”
The panel stated that an elected official raising a First Amendment retaliation claim has the initial burden of pleading and proving that: (1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action. Upon such a showing, the burden shifts to the defendant official to demonstrate that even without the impetus to retaliate he would have taken the action complained of. The panel additionally explained that the framework that applies to evaluating speech restrictions that the government imposes on its employees is not applicable to evaluating restrictions on the speech of elected officials. Nor does the balancing test set forth in Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 564 (1968), apply to an elected official‘s claim of First Amendment retaliation by the official‘s elected peers.
Applying the foregoing framework, the panel held that there was no doubt that Boquist‘s complaint raised a plausible inference that he was engaging in protected speech. In considering defendants’ argument that Boquist‘s statements were not protected because they constituted unprotected fighting words, the panel held, that at the motion to dismiss stage, it could not say that Boquist‘s statements created a likelihood that the person addressed would make an immediate violent response. Even a statement that appears to threaten violence may not be a true threat if the context indicates that it only expressed political opposition or was emotionally charged rhetoric.
Boquist satisfied the second prong of the prima facie test because his complaint plausibly alleged that the 12-hour notice rule was a materially adverse action. Finally, Boquist‘s complaint plausibly alleged that his speech played a part, substantial or otherwise, in the retaliation. On remand, defendants were free to raise the affirmative defense that, in instituting the 12-hour notice rule, they were motivated by vital information conveyed by Boquist‘s speech that raised an objectively legitimate need to implement security measures and that justified the particular measures they chose. But defendants’ affirmative defense was not apparent as a matter of law from the face of the complaint and was therefore not grounds for dismissal at the pleading stage.
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
COUNSEL
Brian J. Boquist, Dallas, Oregon, pro se Plaintiff-Appellant.
Jona J. Maukonen, Assistant Attorney-In-Charge; Benjamin Gutman, Solicitor General; Ellen F. Rosenblum, Attorney General; Department of Justice, Sаlem, Oregon; for Defendants-Appellees.
IKUTA, Circuit Judge:
After minority party state senators in Oregon walked out of the state senate to prevent a quorum, members of the majority party threatened to send the state police to arrest them and return them to the capitol. One minority party senator, Brian J. Boquist, made two statements (one on the floor of the senate, and the other to a reporter in the state capitol building) stating he would resist any such attempt to arrest him. In response, majority party members ordered him not to enter the state capitol without giving them 12 hours advance notice. Boquist brought this action against three defendants (state senators Peter Courtney, Floyd Prozanski, and James Manning), on the ground that the order impermissibly retaliated against him for engaging in speech protected by the First Amendment.
We conclude that the district court erred in dismissing Boquist‘s First Amendment retaliation claim for failure to state a claim because Boquist adequately alleged that he engaged in constitutionally protected speech and was subject to a retaliatory adverse action on account of that speech.
I
We recite the facts alleged in Boquist‘s first amended complaint, which we assume to be true at the pleading stage. See Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010). We also rely on the facts in various documents that are attached to, and referenced in, Boquist‘s complaint.2 See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (holding that a court may consider “certain materials—documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice—without converting the motion to dismiss into a motion for summary judgment“).
On May 7, 2019, twelve minority party members of the Oregon State Senate, including Boquist, walked out of the Senate chamber to prevent the Senate from having a quorum. The walk-out was a prоtest against Senate President Peter Courtney and Senate Majority Leader Ginny Burdick, among others, for their role in approving a sexual harassment settlement and denying public records requests. The twelve senators who walked out remained absent until May 12, 2019. During that time period, Courtney and other majority senators stated that the senators who walked out to prevent the Senate from having a quorum could be fined, arrested, physically detained, and imprisoned.
On June 19, 2019, the Senate held debate on legislation that would limit the use of electronic signature gathering for ballot initiatives and referendums. Boquist spoke on the floor of the Senate to oppose that legislation. During his speech, Boquist said to Courtney: “I understand the threats from members of the majority that you want to arrest me, you want to put me in jail with the state police, and all that sort of stuff. . . . Mr. President, and if you send the state police to get me, Hell‘s coming to visit you personally.” After Courtney reminded Boquist of “decorum,” Boquist stated “I apologize. To you personally.” Later that afternoon, Boquist talked with reporters. After explaining that his comments on the floor were in response to the Governor‘s threats to use the Oregon State Police to arrest senators who walked out, Boquist told the reporter, “[w]ell, I‘m quotable, so here‘s the quote. This is what I told the [state police] superintendent: Send bachelors and come heavily armed. I‘m not going to be a political prisoner in the state of Oregon. It‘s just that simple.”
The next day, on June 20, 2019, a group of state minority party senators, including Boquist, again walked out of the State Capitol to prevent the Senate from having a quorum. The same day, Burdick asked Courtney to impose a fine of $500 per day on the senators who walked out, and Courtney asked the governor of Oregon to direct the Oregon State Police to arrest absent senators. The governor approved Courtney‘s request on June 20, 2019. However, no senators were ever arrested and, after an agreement was rеached between Courtney and Senate Minority Leader Herman Baertschiger, the minority senators
The senate majority leadership then decided to address Boquist‘s statements. On the last day of the legislative session, June 30, 2019, Senator Floyd Prozanski, the chair of the Senate Special Committee on Conduct, paid a call on Boquist in his office at the State Capitol. There, Prozanski told Boquist that the Special Committee on Conduct would meet on July 8th to consider a workplace harassment complaint against Boquist and “to potentially censure and bar” Boquist from the State Capitol. The Special Committee subsequently held a hearing to determine whether Boquist‘s two statements (the statement to Courtney on the floor of the senate, and the subsequent statement to the reporter) “constitute a credible threat of violence.” According to Prozanski‘s remarks at the hearing, the Special Committee would determine whether “the Senate should impose restrictions or conditiоns on Senator Boquist” based on “fear or threatened violence in the workplace.” After deliberations, the Special Committee sent a letter to Boquist directing him to give at least twelve hours advance notice in writing to the Secretary of the Senate before he intended to visit the State Capitol (referred to herein as “the 12-hour notice rule“). The letter stated that upon such notice, the Oregon State Police would increase its presence in the State Capitol. Courtney‘s office informed the media that the 12-hour notice rule would “take effect immediately.”
After the Special Committee issued the 12-hour notice rule, Boquist filed a pro se complaint in district court against Courtney, Prozanski, and state senator James Manning, among others, in their official capacities. The complaint alleges that the defendants issued the 12-hour notice rule in retaliation for Boquist‘s speech on the floor of the Senate and in the State Capitol on June 19, 2019, in “direct violаtion of the free speech clause of the First Amendment.” Boquist seeks a declaratory judgment that the 12-hour notice rule violates his constitutional rights. He does not seek damages. So far as the record reveals, the twelve-hour rule is still in effect against Boquist.
The district court granted the defendants’ motion to dismiss the complaint for failure to state a claim. Still proceeding pro se, Boquist timely appealed. We have jurisdiction under
II
We review de novo a district court‘s order granting a motion to dismiss under
“Ordinarily affirmative defenses may not be raised by motion to dismiss . . . .” Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984) (per curiam). But a complaint may be dismissed when the allegations of the complaint give rise to an affirmative defense that clearly appears on the face of the pleading. McCalden v. California Library Ass‘n, 955 F.2d 1214, 1219 (9th Cir. 1990), superseded by rule on other grounds as stated in Harmston v. City & County of San Francisco, 627 F.3d 1273 (9th Cir. 2010). An affirmative defense is grounds for dismissal at the pleading stage only if “the plaintiff pleads itself оut of court—that is, admits all the ingredients of an impenetrable defense . . . .” Durnford v. MusclePharm Corp., 907 F.3d 595, 603 n.8 (9th Cir. 2018) (quoting Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004)).
III
We begin with the framework for a First Amendment retaliation claim. The First Amendment states that “Congress shall make no law . . . abridging the freedom of speech.”
Claims that government officials subjected an individual to retaliatory action are not limited to a particular context. They have been raised by government employees, government contractors, students, prisoners, business licensees, аnd citizens targeted by law enforcement for their political activities, among others. See Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 564 (1968) (government employees); Bd. of Cnty. Comm‘rs, Wabaunsee Cty. v. Umbehr, 518 U.S. 668, 673 (1996) (government contractors); Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 759 (9th Cir. 2006) (as amended) (students); Crawford-El v. Britton, 523 U.S. 574, 578–79 (1998) (prisoners); CarePartners, LLC v. Lashway, 545 F.3d 867, 871 (9th Cir. 2008) (business licensees); Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir. 1986) (citizens targeted by law enforcement).
A
An elected official may likewise raise a First Amendment retaliation claim. See Blair v. Bethel Sch. Dist., 608 F.3d 540, 542-43 (9th Cir. 2010); see also Wilson, 2022 WL 867307, at *5. An elected official‘s claim under
The first prong is readily met when elected officials express their views and opinions. In Blair, the plaintiff was a publicly elected member of a local school board, who was serving as the board‘s vice president. Id. at 542. After he critiсized the school superintendent to a reporter, his fellow board members voted to remove him as vice president. Id. at 543. The plaintiff sued under
The second prong of the prima facie case is satisfied if the elected official was subjected to a “materially adverse action.” Wilson, 2022 WL 867307, at *6. In Wilson, the elected Board of Trustees of a community college censured one of its members after he publicly accused the Board of violating its bylaws and ethical rules. Id. at *2–3. The member sued the Board, alleging that the censure constituted unlawful First Amendment retaliation. Id. at *3. Wilson held that the member lacked an actionable claim for First Amendment retaliation because he did not suffer a material adverse action. See id. at *4–7.
In determining whether the Board‘s censure constituted a materially adverse action, Wilson applied a two-prong test.
First, the Court reviewed “long settled and established practice” to determine whether a public censure had historically been “widely considered offensive to the First Amendment.” Id. at *4 (citing The Pocket Veto Case, 279 U.S. 655, 689 (1929)). Based on its review of historical practice, the Court concluded that a “purely verbal censure” had not been deemed to offend First Amendment rights; rather, “elected bodies in this country have long exercised the power to censure their members.” Id.
Second, the Court looked to “contemporary doctrine” for First Amendment retaliation claims to confirm the results of its historical review. Id. at *5. The Court noted that lower courts have applied different tests to “distinguish material frоm immaterial adverse actions,” including asking “whether the government‘s challenged conduct would ‘chill a person of ordinary firmness’ in the plaintiff‘s position from engaging in ‘future First Amendment activity.‘” Id. (quoting Nieves, 139 S. Ct. at 1721). But regardless of which test is used, courts considering the materiality of the defendant‘s adverse action in a First
Our precedent is in accord. We have emphasized that it is more difficult for elected officials to establish that they were subjected to an adverse action that offends the First Amendment because “more is fair in electoral politics than in other contexts,” Blair, 608 F.3d at 544, and the First Amendment therefore “doesn‘t shield public figures from the give-and-take of the political process,” id. at 543. In Blair, we agreed with other circuits that a city сouncil‘s legislative resolution criticizing a departing council member is not a material adverse action, id. at 546 (citing Zilich v. Longo, 34 F.3d 359, 363 (6th Cir. 1994)), nor is a community college board‘s censure of one of its trustees “for violating an ethics policy by placing a newspaper ad encouraging the public to vote against a pending measure,” id. (citing Phelan v. Laramie Cty. Cmty. Coll. Bd., 235 F.3d 1243, 1245-46 (10th Cir. 2000)). We reasoned that “de minimis deprivations of benefits and privileges on account of one‘s speech do not give rise to a First Amendment claim.” Id. at 544. Applying that reasoning to the plaintiff‘s claim in Blair, we concluded that the board members’ decision to strip the plaintiff of his titular role as vice president was part of the “regular functioning of the political process.” Id. at 545. Because the plaintiff‘s “authority as a member of the Board was unaffected,” and “he retained the full range of rights and prerogatives that came with having been publicly elected,” he did not suffer a material adverse action, and therefore failed to make a prima facie showing of First Amendment retaliation. Id. at 544.
Neither Wilson nor Blair held that an adverse actiоn against an elected official could never be sufficiently material to raise an actionable claim for First Amendment retaliation. Blair made it “very clear” that “retaliatory acts of elected officials against their own” can violate the Constitution in some circumstances, and that the plaintiff‘s case would have been different had the plaintiff‘s peers on the school board “somehow managed to vote him off the Board or deprive him of authority he enjoyed by virtue of his popular election.” Id. at 545 n.4. And Wilson emphasized that its holding was a narrow one: the Court did not address “questions concerning legislative censures accompanied by punishments,” 2022 WL 867307, at *6, nor did it address adverse actions such as “expulsion, exclusion, or any other form of punishment,” id. at *7. When considering those more serious forms of sanctions
Finally, to establish the third prong of the prima facie case for First Amendment retaliation—which requires the plaintiff to show a causal relationship between the protected conduct and the material adverse action—the plaintiff must show that the “protected conduct played a part, substantial or otherwise,” in the defendant‘s wrongdoing. Nieves, 139 S. Ct. at 1722 (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285 (1977)). Such a causal relationship may arise in a range of circumstances, such as when a government official suspends a regulated entity‘s permits because of the plaintiff‘s exercise of First Amendment rights, see Soranno‘s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1312 (9th Cir. 1989), or when the government‘s termination of a contract with a government contractor is motivated by the contractor‘s speech on a matter of public concern, see Umbehr, 518 U.S. at 685. In many cases, “establishing the causal connection between a defendant‘s animus and a plaintiff‘s injury is straightforward,” and courts may take “the evidence of the motive and the [defendant‘s wrongdoing] as sufficient for a circumstantial demonstration that the one caused the other.” Nieves, 139 S. Ct. at 1722 (quoting Hartman, 547 U.S. at 260). In assessing whether this causal element is met, courts have also given weight to circumstantial evidence such as a proximity in time between the protected speech and the adverse action, the defendant‘s expression of opposition to the рrotected speech, and evidence that the defendant proffered false or pretextual explanations for the adverse action. See Howard v. City of Coos Bay, 871 F.3d 1032, 1045 (9th Cir. 2017) (citing Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 751–52 (9th Cir. 2001)). In Blair, the third prong was met because it was undisputed that the plaintiff‘s criticism of the superintendent was the cause for the decision to remove him. See 608 F.3d at 543.
B
The Supreme Court (and our own case law) has adopted a burden-shifting approach to
The Supreme Court has recently defined “but for” causation as being “established whenever a particular outcome would not have happened ‘but for’ the purported cause.” Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739 (2020). “In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.” Id. Under this test, if the outcome (the adverse action) would not have occurred without the government official‘s retaliatory animus, then that animus was a but-for cause of the adverse action. See id. Conversely, if the government officials would have taken the same adverse action even in the absence of their animus or retaliatory motive arising from the plaintiff‘s speech, then the officials’ animus was not a but-for cause of the adverse action, and there was no violation of the plaintiff‘s constitutional rights. See id. “It may be dishonorable to act with an unconstitutional motive and perhaps in some instances be unlawful, but action colored by some degree of bad motive does not amount to a constitutional tort if that
action would have been taken anyway.” Hartman, 547 U.S. at 260.
The Supreme Court has recognized that the causality inquiry can be complex in certain contexts. In the retaliatory arrest context, for example, the Court acknowledged that “it can be difficult to discern whether an arrest was caused by the officer‘s legitimate or illegitimate consideration of speech.” Lozman v. City of Riviera Beach, 138 S. Ct. 1945, 1953 (2018). The Court has reasoned that “protected speech is often a wholly legitimate consideration when deciding whether to make an arrest” because “the content and manner of a suspect‘s speech may convey vital information—for example, if he is ready to cooperate or rather presents a continuing threat.” Nieves, 139 S. Ct. at 1724 (cleaned up). In other words, protected speech (e.g., “I‘m carrying a gun because police can‘t be trusted“) may both convey information that requires an official to respond to a security threat, and also provoke an offiсial‘s retaliatory animus.
Although Nieves considered this issue in the context of the plaintiff‘s prima facie case of retaliation, see id. at 1722, the Court‘s analysis is equally applicable to a defendant‘s affirmative defense. Thus, government officials do not violate a plaintiff‘s First Amendment rights if they had an objectively legitimate need to implement security measures in response to information conveyed by the plaintiff‘s speech, and would have implemented the same security measures in the absence of any retaliatory motive. In such a case, any unconstitutional motivation would not be a but-for cause of the officials’ action. See Bostock, 140 S. Ct. at 1739.
C
We next address whether the framework that applies to evaluating speech restrictions
A modified First Amendment framework applies to claims of workplace-related retaliation for protected speech when the plaintiff is a government employee or contractor. See Pickering, 391 U.S. at 568 (government employee); Umbehr, 518 U.S. at 673 (government contractor); see also Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 923–27 (9th Cir. 2004) (extending the approach used for government employees and contractors to government vendors). In such cases, the government has “interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” Pickering, 391 U.S. at 568. This is because “[t]he government‘s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer.” Umbehr, 518 U.S. at 676 (quoting Waters v. Churchill, 511 U.S. 661, 675 (1994) (plurality opinion)). In other words, when the government provides public services, it has a “job to do” and a heightened interest in doing that job effectively. Waters, 511 U.S. at 675.
In the employment-related context, a government employee or contractor‘s speech is protected from a material adverse action by government officials only if the speech
addresses a matter of public concern.4 See Connick v. Myers, 461 U.S. 138, 146 (1983). The government can constitutionally restrict speech “that owes its existence to a public employee‘s professional responsibilities” because such a restriction “does not infringe any liberties the employee might have enjoyed as a private citizen,” but “simply reflects the exercise of employer control over what the employer itself has commissioned or created.” Garcetti v. Ceballos, 547 U.S. 410, 421–22 (2006).
Even when a public employee speaks “as a citizen addressing a matter of public concern,” id. at 423, the government can still defeat a
The rationale for allowing the government to restrict the speech of government employees and contractors is not applicable to elected officials. Such elected officials are not speaking as employees of the government, nor does the government need to regulate their speech in order to deliver public services “effectively and efficiently”
In light of “[t]he manifest function of the First Amendment in a representative government” and the “require[ment] that legislators be given the widest latitude to express their views of policy,” Bond, 385 U.S. at 135–36, we conclude that an elected official‘s speech is protected regardless whether the official is speaking “as a citizen upon a matter of public concern,” Garcetti, 547 U.S. at 418; cf. CarePartners, 545 F.3d at 880–81 (holding that the “public concern” requirement does not apply to a plaintiff who is not in an employment-like relationship with the government). Nor does the Pickering balancing test apply to an elected official‘s claim of First Amendment retaliation by the official‘s elected peers. See Phelan, 235 F.3d at 1247 (declining to apply the Pickering balancing test to elected officials’ retaliation claims); see also Werkheiser v. Pocono Twp., 780 F.3d 172, 178 (3d Cir. 2015) (noting that “[m]any of the reasons for restrictions on employee speech appear to apply with much less force in the context of elected officials“).
IV
We now apply the foregoing framework to Boquist‘s claim to determine whether his complaint stated a plausible First Amendment retaliation claim. Starting with the first prong for making a prima facie case, there is no doubt that Boquist‘s complaint raises a plausible inference that he was engaging in protected speech. The minority party senators’ efforts to deprive the majority of the quorum needed to proceed with senate business, and the majority party senators’ efforts to compel the minority senators to appear, was a purely political controversy that has occurred many times in the past.5 The public was highly interested in this controvеrsy, as confirmed by the news releases issued by the Governor and the Senate Majority Office addressing the situation, and the substantial media attention that it received. Boquist‘s rhetorical response to the majority‘s threat to use state police to arrest the departing senators and return them to the Capitol therefore fits
The defendants argue that Boquist‘s statements are not protected by the First Amendment because they constitute unprotected fighting words or could be perceived as a threat. “Fighting words” are “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572 (1942). At the motion to dismiss stage, we cannot say that Boquist‘s statements created a “likelihood that the person addressed would make an immediate violent response.” United States v. Poocha, 259 F.3d 1077, 1080–81 (9th Cir. 2001). Boquist‘s statement to Courtney on the floоr of the Senate—“if you send the state police to get me, Hell‘s coming to visit you personally“—was quickly followed by Boquist‘s public apology. And drawing all reasonable inferences in Boquist‘s favor, he was not likely to incite an immediate breach of the peace by informing a reporter that he had told the police to “[s]end bachelors and come heavily armed” because he was “not going to be a political prisoner in the state of Oregon.” See id.
We likewise reject the defendants’ argument that Boquist‘s complaint fails to state a First Amendment retaliation claim because his statements were unprotected threats. Only “true threats” fall outside the scope of First Amendment protection. See Virginia v. Black, 538 U.S. 343, 359 (2003). Under the “objective test” for determining when speech is a true threat, we ask “whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intеnt to harm or assault.” Thunder Studios, Inc. v. Kazal, 13 F.4th 736, 746 (9th Cir. 2021) (quoting Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 290 F.3d 1058, 1074 (9th Cir. 2002) (en banc)).6 We must examine the speech in light of its “entire factual context, including the surrounding events and reaction of the listeners.” Corales v. Bennett, 567 F.3d 554, 563-64 (9th Cir. 2009). “Even a statement that appears to threaten violence may not be a true threat if the context indicates that it only expressed political opposition or was emotionally charged rhetoric.” Kazal, 13 F.4th at 746; see also Watts, 394 U.S. at 706-08 (holding that the defendant engaged in protected speech where he stated, “[i]f they ever make me carry a rifle the first man I want to get in my sights is L.B.J,” during speech at Washington Monument opposing military draft); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 902, 928 (1982) (holding that the statement “[i]f we catch any of you going in any of them racist stores, we‘re gonna break your damn neck” at a rally was “emotionally charged rhetoric” protected under the First Amendment).
Boquist also satisfies the second prong of the prima facie test because his complaint plausibly alleges that the 12-hour notice rule is a “materially adverse action.” Wilson, — S. Ct. —, 2022 WL 867307, at *6. Following Wilson‘s guidance, we first review “long settled and established” historical practices to determine if similar sanctions were traditionally a part of legislative action. Id. at *4. Our research reveals that, unlike censure, the exercise of the power to bar an elected official from the legislative chamber (whether temporarily or permanently) is not a “long exercised” means of responding to protected speech. Id. Legislatures have historically exercised the power to expel their members, as well as to discipline them through the use of censures, reprimands, and fines. See, e.g., Congressional Research Service, J. Maskell, Expulsion, Censure, Reprimand, and Fine: Legislative Discipline in the House of Representatives 3-9, 10-16 (2016) (“Legislative Discipline“) (discussing the House of Representatives’ ability to censure, reprimand, and fine its members).8 But we are aware of no case upholding the expulsion or exclusion of еlected officials due to their protected speech. To the contrary, the Supreme Court has held that a state legislature‘s refusal to seat an elected representative due to his statements criticizing the government‘s policy in Vietnam violated the official‘s First Amendment rights. See Bond, 385 U.S. at 136–37.
Similarly, “[a]lthough a temporary suspension is traditionally listed as one of the possible disciplinary actions that a legislative body may take against one of its members,” see Legislative Discipline at 15 (internal quotation marks omitted) (citing L. Cushing, The Law and Practice of Legislative Assemblies 251 (1874)), there is no evidence that such a sanction was regularly imposed, let alone imposed to punish protected speech. In the few cases we have identified, a suspension sanction was imposed for acts of physical violence, such as
“[C]ontemporary doctrine,” id., confirms that the 12-hour notice rule is a materially adverse action. Our circuit‘s approach “to distinguish material from immaterial adverse actions,” id., is to ask whether the government‘s conduct would “chill a person of ordinary firmness from continuing to engage in the protected activity,” Blair, 608 F.3d at 543. But before applying the test, we must first take into account the key considerations applicable to an elected official‘s speech. See Wilson, — S. Ct. —, 2022 WL 867307, at *5. Those considerations again confirm that the 12-hour notice rule is a materially adverse action. Although criticism alone is unlikely to be material, the 12-hour notice rule issued by Boquist‘s political opponents was not a mere exchange in “the give-and-take of the political process,” Blair, 608 F.3d at 543, or a “rather minor indignity,” id. at 544. And the adverse action before us—the 12-hour notice rule—is not itself merely “a form of speech” from Boquist‘s opponents, or an expression of their political views. Wilson, — S. Ct. —, 2022 WL 867307, at *5. To the contrary, the 12-hour notice rule is a form of punishment which deprives Boquist of “authority he enjoyed by virtue of his popular election,” Blair, 608 F.3d at 545 n.4, and “prevent[s] [Boquist] from doing his job,” Wilson, — S. Ct. —, 2022 WL 867307, at *6. The advance notice requirement “eliminates the possibility of spontaneous speech,” including a senator‘s ability to immediately respond to and address a political issues arising on the floor of the Oregon state senate. Cuviello v. City of Vallejo, 944 F.3d 816, 832 (9th Cir. 2019). Indeed, the 12-hour notice rule prevents Boquist from entering the Capitol for any purpose unless he gives twelve hours advance notice. Thus, the 12-hour nоtice rule “disproportionately burden[s] political speech that must respond to changing current events.” Id.; see also Shuttlesworth v. City of Birmingham, 394 U.S. 147, 163 (1969) (Harlan, J., concurring) (“[T]iming is of the essence in politics . . . [and] it is often necessary to have one‘s voice heard promptly, if it is to be considered at all.“); N.A.A.C.P., W. Region v. City of Richmond, 743 F.2d 1346, 1355 (9th Cir. 1984) (“[A]ll advance notice requirements tend to inhibit speech. The simple knowledge that one must inform the government of his desire to speak . . . discourages citizens from speaking freely.“).
The 12-hour notice rule therefore prevents Boquist from exercising “authority he enjoyed by virtue of his popular election,” Blair, 608 F.3d at 545 n.4, namely, having timely access to the physical seat of government where “governmental debates” take place, Bond, 385 U.S. at 136; see also Republican Party of Minnesota v. White, 536 U.S. 765, 788 (2002) (explaining that states must accord participants in the democratic process “the First
Finally, Boquist‘s complaint meets the third prong of the prima facie test. Prozanski‘s statements to Boquist in his office, and those before the Senate Special Committee on Conduct, make clear that the Special Committee imposed the 12-hour notice rule in response to Boquist‘s protected speech. Therefore, Boquist‘s complaint plausibly alleges that his speech “played a part, substantial or otherwise,” in the retaliation. Nieves, 139 S. Ct. at 1722 (quoting Mt. Healthy, 429 U.S. at 285).
The defendants raise several arguments to the contrary, but each of them fail. First, the defendants argue that Boquist failed to state a claim because his allegations are mere legal conclusions, not facts. We disagree. Although a complaint that offers mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” is insufficient to withstand a motion to dismiss, Iqbal, 556 U.S. at 678, Boquist‘s complaint does not contain mere legal conclusions. Rather, Boquist pleaded specific facts regarding background incidents in the months preceding the issuance of the 12-hour notice, events surrounding Boquist‘s protected speech, and Prozanski‘s statements both in Boquist‘s office and during the Special Committee‘s hearing. These factual allegations alone are sufficient to raise a plausible inference that the 12-hour notice rule was a response to Boquist‘s protected speech.
Second, the defendants argue that Boquist‘s complaint fails to state a claim because the 12-hour rule was “a reasonable response to perceived threats.” In other words, defendants rely on an affirmative defense: they had a non-retaliatory motive (a legitimate nеed to implement security measures) for the 12-hour notice rule. But that affirmative defense is grounds to dismiss Boquist‘s claim only if his complaint, on its face, “admits all the ingredients” of the defense. Durnford, 907 F.3d at 603 n.8.
Here, the defendants’ affirmative defense is not apparent from the complaint, which described merely an exchange of heightened rhetoric to demonstrate political opposition. According to the allegations in the complaint, Boquist‘s two remarks were even less inflammatory than those in Watts, where a protester‘s statement, “[i]f they ever make me carry a rifle the first man I want to get in my sights is L.B.J.,” was deemed to be protected by the First Amendment. 394 U.S. at 708. On remand, defendants are free to raise the affirmative defense that, in instituting the 12-hour notice rule, they were motivated by “vital information” conveyed by Boquist‘s speech, Nieves, 139 S. Ct. at 1724, that raised an objectively legitimate need to implement security measures and that justified the particular measures they chose, see Hartman, 547 U.S. at 256. Evidence that defendants were motivated by legitimаte safety concerns that warranted the 12-hour notice rule, such as evidence that other state senators expressed concerns about their safety in response to Boquist‘s statements, may allow defendants to prevail on their theory
Finally, the defendants assert that Boquist‘s complaint fails to state a claim because the 12-hour notice rule is a reasonable time, place, and manner restriction. This argument misses the point. The government is barred from taking actions “designed to retaliate against and chill political expression,” Gibson, 781 F.2d at 1338, even when that action could be taken lawfully in the absence of such improper motivation. For instance, a court has authority to impose sanctions for contempt, but cannot do so to punish an elected official for protected speech, see Wood, 370 U.S. at 383, and a government employer can fire an employee, but not on account of protected speech absent legitimate counterbalancing concerns, see Pickering, 391 U.S. at 568. Therefore, even assuming that a 12-hour notice requirement was constitutional as a reasonable time, place, and manner restriction, the defendants could not impose that requirement on Boquist out of a retaliatory animus, as plausibly alleged in the complaint.
REVERSED IN PART AND REMANDED.9