Panel Says First Amendment Was Not Breached by City Council Member Ousting Woman From Advisory Board Based on Her Participation in Immigrants’ Rights Rally, Refusal to Denounce Extremist Movement
By a MetNews Staff Writer
A panel of the Ninth U.S. Circuit Court of Appeals yesterday affirmed the dismissal with prejudice of a lawsuit against the City of Huntington Beach filed by a woman who was ousted from a volunteer board because her political views clashed with those of the City Council member who appointed her.
“The issue for decision is whether the First Amendment protects 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.” Senior Circuit Judge Andrew D. Hurwitz wrote. “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.’ ”
High school teacher Shayna Lathus, who was removed from the Huntington Beach Citizens Participation Advisory Board (“HB CPAB”) in 2019 by then-city lawmaker Kim Carr, brought suit on April 29 of that year, contending she was unlawfully punished for her participation at a political rally in favor of immigrants’ rights and for her refusal, in the aftermath, to make a public statement dictated by Carr. Photos of Lathus appeared online standing by persons who appeared by their all-black attire to be “Antifa,” members of a secretive left-wing anti-fascist and anti-racist political movement that sometimes resorts to violence, and Carr demanded that Lathus publicly denounce Antifa on social media.
The statement Lathus posted did not go far enough, Carr declared, announcing that persons who “do not immediately denounce hateful, violent groups do not share my values and will not be a part of my team.”
Former member, volunteer board
Former City Council member
Allegations of Complaint
Lathus said in her complaint (with paragraph numbers removed):
“By forcing Ms. Lathus to make a public statement about her attendance at the April 27 Rally under threat of losing her position on the HB CPAB. Defendant violated Ms. Lathus’s right to be free from government compelled speech. By firing Ms. Lathus from her position on the HB CPAB for attending the rally, for not denouncing Antifa, and for associating with people Carr identified as “Antifa.” Defendant violated Ms. Lathus’s free speech, association, and assembly rights and retaliated against her for exercising those First Amendment rights.
“Defendant has a persistent and widespread policy, custom, or equivalent to punish and retaliate against its employees and volunteers who engage in protected First Amendment activities, which was the driving force that led to Ms. Lathus being removed from HB CPAB.”
The complaint sought the reinstatement of Lathus and an award of attorney fees.
District Court’s Ruling
District Court Judge Stanley Blumenfeld Jr. of the Central District of California on Sept. 29, 2021, dismissed the action for failure to state a claim, saying:
“While Plaintiffs actions as a public figure directly reflected upon her, they also could be seen as a reflection upon Carr. Carr’s selection of Plaintiff to the CPAB was a political act, and, like all political acts, subject to political attack. As a publicly elected official. Can was accountable to the public for her political decisions, including her appointments. Of course. Plaintiff had the right to speak out on issues of concern to her and to freely associate within the full boundaries of the law. But Plaintiff also had to realize that, by accepting the appointment, she was no longer the only person politically accountable for her public actions. The political act of appointment had the political consequence of linking the appointor and appointee. By the appointment process. Plaintiff could therefore be viewed as a political extension of the person who had the sole authority to appoint her.”
“In short, when Plaintiff decided to engage in public protest, she was expressing her views and showing support for a cause in association with other like-minded individuals. In doing so, Plaintiff unquestionably was exercising her constitutional rights. However, such exercise ‘does not...immunize [her] from the political fallout’ of her actions….Contrary to the thrust of Plaintiff s lawsuit, Carr was not politically powerless to disassociate herself from Plaintiffs public actions through a process that authorized appointment and removal in Carr’s sole discretion.”
Hurwitz agreed with the result Blumenfield reached, while disagreeing that the result was dictated by the Ninth Circuit’s 2010 decision in Blair v. Bethel School District. There, a school board had removed the plaintiff, Ken Blair, as its vice president based on his criticisms of the superintent, the District Court grahted summary judgment in favor of the defendants, and the Ninth Circuit affirmed, explaining:
“To be sure, the First Amendment protects Blair’s discordant speech as a general matter; it does not, however, immunize him from the political fallout of what he says.”
Hurwitz said that Blair is merely “instructive,” not “controlling,” because Lathus, unlike Blair, was not removed from the board by a vote of its other members.
“But. even if Blair does not control the day,” he wrote, “it makes clear that the First Amendment rights of government officials are not absolute.”
In an opinion in which he referred four times to Lathus being Carr’s “public face,” Hurwitz said:
“[A]n elected official can compel the public speech of her representative because that speech will be perceived as the elected official’s own. Just as Carr was entitled to political loyalty from her appointee to the CPAB, she was also entitled to compel that appointee to espouse her political philosophy.”
Had the Ninth Circuit reversed, Lathus could not have regained the status of Carr’s appointee to CPAB given that Carr’s term on the board has expired, but the issue of attorney fees would still have been in issue. (Carr in November lost in a runoff for a seat in the state Senate).
The case is Lathus v. City of Huntington Beach, 21-56197.
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