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Volunteer Conservation Project at City Preserve Is Not Protected ‘Speech’—Ninth Circuit
Opinion Rejects Party’s Claim That Program Expresses His Environmentalist Views, Says Termination of Venture Does Not Implicate First Amendment Rights
By Kimber Cooley, associate editor
A city’s termination of a volunteer program to remove invasive plant species from a public nature preserve did not implicate the founder’s rights under the First Amendment or the California Constitution, the Ninth U.S. Circuit Court of Appeals held Friday, rejecting the plaintiff’s characterization of the program as an expression of his pro-conservation views and as conduct necessary to gather information necessary for promoting local environmentalist causes.
The question arose after Joseph Pat Cuviello filed a complaint against the City of Belmont, in Santa Clara County, and various city officials in January 2023, asserting First Amendment Claims under 42 U.S.C. §1983 and a violation of Article I, §2 of the California Constitution, which provides that “[e]very person may freely speak, write and publish his or her sentiments on all subjects.”
He sought injunctive as well as declaratory relief and asserted:
“This is a civil rights action arising from DEFENDANT CITY OF BELMONT’s unreasonable indefinite, and possibly permanent suspension/cancellation of PLAINTIFF JOSEPH PAT CUVIELLO’s volunteer invasive plant removal program in the City of Belmont, which includes Waterdog Open Space; a violation of PLAINTIFF’s right to freedom of speech, press, assembly, association, and conscience.”
Failure to State Claim
On July 31, 2023, Magistrate Judge Laurel D. Beeler of the Northern District of California dismissed the plaintiff’s speech-related causes of action for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), granting leave to file an amended pleading through Aug. 28. No such amendment was filed.
After the parties stipulated to the dismissal, with prejudice, of a remaining claim relating to allegations that the city terminated the project due to Cuviello’s purported criticism of the locality’s environmental policies, Cuviello appealed the July order.
In Friday’s memorandum opinion, signed by Senior Circuit Judge Sidney R. Thomas as well as Circuit Judges Jacqueline H. Nguyen and Daniel A. Bress, the court affirmed the dismissal.
District Court’s View
In the July order, Beeler wrote:
“The plaintiff…contends that his environmental-protection volunteerism—all performed in a public park—is expressive speech that is protected by the First Amendment and the California Constitution. The plaintiff pleads only conduct, not protectible symbolic conduct.”
She continued:
“The conduct is volunteerism to remove invasive species, a matter of public concern. This is not the kind of conduct—public nudity to protest a nudity ordinance, burning a draft card or a flag, silent marches conveying a message, clothing with meaningful symbols (such as antiwar armbands)—that courts find symbolic. Moreover, a passerby would not understand it to be communicative.
“The plaintiff does not plausibly plead symbolic conduct. The analysis is the same under the California Constitution….The plaintiff pleads only pure conduct, which is not protected under the California Constitution.”
Ninth Circuit’s View
Thomas, Nguyen, and Bress acknowledged that expressive conduct may be protected by the First Amendment if it was intended to convey a particularized message and there was a substantial likelihood that the message would be understood by those who observed it.
Applying those principles, they opined:
“Cuviello alleges that his plant-removal conduct expresses his views on environmental protection. Based on the nature of Cuviello’s conduct—removing plants in a public preserve—it is not clear that ‘an unmistakable communication [was] being made.’ However, even if Cuviello could show that his intent was to convey a particularized message, he fails to show a great likelihood that his intended message would have been understood by those who received it.”
The jurists continued:
“Removing plants off-trail in a natural open space using removal equipment while wearing extensive protective gear is not likely to be understood by viewers as expressing an environmental protection message. Cuviello’s action of removing plants is pure conduct; it does not convey thoughts or opinions….Accordingly, Cuviello fails to state a plausible expressive conduct claim under either the First Amendment or the California Constitution.”
Information Gathering
They also rejected the plaintiff’s alternative argument that the plant-removal conduct is a protected information-gathering activity, saying:
“Here, Cuviello lacks an unrestrained right to gather information in the exact manner he wishes—removing invasive plants at a specific preserve. But he can still access the preserve to take notes, photograph plants, and otherwise document conditions as a means of gathering information for future environmental advocacy. Accordingly, any incidental effect of terminating the plant removal program on Cuviello’s speech creation or dissemination rights is too attenuated to state a claim under the First Amendment.”
Saying that “[t]here is no California case law recognizing a more expansive right to information under the California Constitution,” they declared that “Cuviello’s information gathering claim also fails under California law.”
The case is Cuviello v. City of Belmont, 24-5191.
Cuviello is no stranger to the judicial system. In 2019, he successfully challenged a permanent injunction barring him from demonstrating outside of Vallejo’s Six Flags Discovery Kingdom, a venue that combines roller coaster attractions with live animal performances. Div. Two of the First District Court of Appeal held “as a matter of first impression” that the “exterior, unticketed areas” of amusement parks are “public forum[s] for expressive activity.”
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