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Introduction

            Under the First Amendment to the United States Constitution, a citizen has the right to be free from governmental action taken to retaliate against the citizen's exercise of First Amendment rights or to deter the citizen from exercising those rights in the future.  Sloman v. Tadlock, 21 F.3d 1462, 1469-70 (9th Cir. 1994). 

“Although officials may constitutionally impose time, place, and manner restrictions on political expression carried out on sidewalks and median strips, they may not ‘discriminate in the regulation of expression on the basis of content of that expression.' 

State action designed to retaliate against, and chill political expression strikes at the very heart of the First Amendment.”

However, “members of the public do not have a constitutional right to force the government to listen to their views...[a]nd the First Amendment does not compel the government to respond to speech directed toward it.” See L.F. v. Lake Washington School District #414, 947 F.3d 621, 626 (9th Cir. 2020). 

42 U.S.C. § 1983 prohibits the deprivation of rights “secured by the Constitution and laws” of the United States. This includes the right to freedom of speech, which is protected by the First Amendment of the Constitution.  A claim of denial of First Amendment rights under 42 U.S.C. § 1983 arises when a person is deprived of their right to free speech. See Brandenburg v. Ohio, 395 U.S. 444 (1969); Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969); Citizens United v. FEC, 558 U.S. 310 (2010).

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How to file a federal civil rights claim in the Central District of California

9th Circuit Jury Instructions - First Amendment—["Citizen" Plaintiff].

Here are some general jury instructions for free speech deprivation cases.

            Under the First Amendment, a citizen has the right [to free expression] [to petition the government] [to access the courts] [other applicable right].  To establish the defendant deprived the plaintiff of this First Amendment right, the plaintiff must prove the following additional elements by a preponderance of the evidence:

1. the plaintiff was engaged in a constitutionally protected activity;
2. the defendant's actions against the plaintiff would chill a person of ordinary firmness from continuing to engage in the protected activity; and
3. the plaintiff's protected activity was a substantial or motivating factor in the defendant's conduct (not necessarily the only factor). 

The burden of proof is initially on the Plaintiff.  If the plaintiff establishes each of the foregoing elements, the burden shifts to the defendant to prove by a preponderance of the evidence that the defendant would have taken the action(s) in question, even in the absence of any motive to retaliate against the plaintiff.  If you find that the defendant is able to demonstrate this, you must find for the defendant.  If you find that the defendant is not able to demonstrate this, you must find for the plaintiff. 

Thus, to demonstrate a First Amendment violation, a citizen plaintiff must provide evidence showing that “by his actions [the defendant] deterred or chilled [the plaintiff's] political speech and such deterrence was a substantial or motivating factor in [the defendant's] conduct.”  See Mendocino Env'l Ctr. v. Mendocino County,14 F.3d 457, 459-60 (9th Cir. 1994).  Defining “substantial or motivating factor” as a “significant factor” does not misstate the law.  Ostad v. Or. Health Scis. Univ., 327 F.3d 876, 884-85 (9th Cir. 2003); see also Capp v. City of San Diego, 940 F.3d 1046, 1056 (9th Cir. 2019) (explaining that retaliatory intent may still be one substantial or motivating factor for retaliatory conduct even if other, non-retaliatory reasons exist). 

A plaintiff need not prove, however, that “his speech was actually inhibited or suppressed.”  Mendocino Env'l Ctr.,192 F.3d at 1288; see also Ariz. Students' Ass'n v. Ariz. Bd. of Regents, 824 F.3d 858, 867 (9th Cir. 2016) (“A plaintiff may bring a Section 1983 claim alleging that public officials, acting in their official capacity, took action with the intent to retaliate against, obstruct, or chill the plaintiff's First Amendment rights.

To bring a First Amendment retaliation claim, the plaintiff must allege that

(1) it engaged in constitutionally protected activity;

(2) the defendant's actions would ‘chill a person of ordinary firmness' from continuing to engage in the protected activity;

and

(3) the protected activity was a substantial or motivating factor in the defendant's conduct—i.e., that there was a nexus between the defendant's actions and an intent to chill speech. 

Further, to prevail on such a claim, a plaintiff need only show that the defendant ‘intended to interfere' with the plaintiff's First Amendment rights and that it suffered some injury as a result; the plaintiff is not required to demonstrate that its speech was actually suppressed or inhibited.” (citations omitted).  

Free Speech in Public Schools                                                        

In determining whether the First Amendment protects students speech in a public school, it is error to use the “public concern” standard applicable to actions brought by governmental employees.  Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 759 (9th Cir. 2006).  Instead, the proper standard to apply to on campus student speech is set forth in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 514 (1969);see Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 141 S. Ct. 2038, 2045 (2021) (noting the Court's priorapplications of Tinker standard as recognizing schools' “special interest inregulating speech that ‘materially disrupts classwork or involves substantial disorderor invasion of the rights of others'” (citation omitted));see also Waln v. Dysart School District, 54 F.4th 1152, 1161-63 (9th Cir. 2022)

 “A speech restriction cannot satisfy the time, place, manner test if the restriction does not contain clear standards.”  OSU Student All. v. Ray, 699 F.3d 1053, 1066 (9th Cir. 2012); see also City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 758 (1988) (“The absence of express standards makes it difficult to distinguish, ‘as applied,' between a licensor's legitimate denial of a permit and its illegitimate abuse of censorial power. Standards provide the guideposts that check the licensor and allow courts quickly and easily to determine whether the licensor is discriminating against disfavored speech.”

Off-campus student speech may not be protected under the First Amendment when, based on the totality of the circumstances, thes peech bears a sufficient nexus to the school.  McNeil v. Sherwood Sch. Dist. 88J, 918 F.3d 700,707 (9th Cir. 2019).  Relevant considerations into whether speech bears a sufficient nexus to the school include: 

(1) the degree and likelihood of harm to the school caused or augured by the speech,

(2) whether it was reasonably foreseeable that the speech would reach and impact the school,

and

(3) the relation between the content and context of the speech and the school.”  Id. see also C.R. v. Eugene Sch. Dist. 4J, 835 F.3d 1142, 1150-52 (9th Cir. 2016); Wynar v. Douglas Cnty. Sch. Dist., 728 F. 3d. 1062, 1069 (9th Cir. 2013).

           The Supreme Court has declined to set forth a “broad, highly general First Amendment rule stating just what counts as ‘off campus' speech” and, instead, set forth three features of off-campus speech that “diminish the strength of the unique educational characteristics that might call for special First Amendment leeway.”  Mahanoy Area Sch. Dist v. B.L. ex rel Levy, 141 S.Ct. 2038, 2045-46 (2021).  First, “a school, in relation to off-campus speech, will rarely stand in loco parentis.”  Id. at 2046.  Second, regulation of off-campus speech coupled with regulation of on-campus speech, encompasses the entirety of the speech a student utters in a day.  Id. Third, schools must be mindful of their own interest in protecting students' unpopular expression, particularly when that expression occurs off-campus, consistent with the role of America's public schools as “nurseries of democracy.”  

A Free Speech Plaintiff must establish "State Action."

A free speech plaintiff may establish "state action" in a number of ways in order to assert a civil rights claim. Among these methods are:

1. Government Agency or Official: The plaintiff may be able to demonstrate that a government agency or official was involved in the purported violation of the right to free speech. This can include direct violations of the right to free expression committed by government officials, such as law enforcement or employees.

2. Public Function: The plaintiff must show that the private organization or person in question was carrying out a task that has historically only been done by the government. It can be deemed state action if a private organization or individual is performing a task that is normally exclusively performed by the government.

3. Government Approval or Encouragement: The plaintiff may present proof that the claimed infringement of free expression rights was either approved by the government or encouraged by it. It may be considered state activity if representatives of the government encouraged the infringement either directly or indirectly.

4. Joint Action: The plaintiff may contend that the private party or person in charge of the infraction collaborated or worked together with the government. It may qualify as state action if there is a close working relationship, coordination, or cooperation between the government and the private organization.

5. Public Funding or Government Entanglement: The plaintiff must show that the person or organization in question is either heavily funded by the government or that their activities are so closely linked to its laws and regulations that they can only be attributed to it.

6. Delegation of Government role: The plaintiff may demonstrate that the government gave a private organization or individual special authority or role over the control of free expression, subjecting their acts to constitutional scrutiny.

It's crucial to remember that these are the general methods through which a plaintiff claiming freedom of speech can establish "state action" and file a civil rights lawsuit. Depending on the jurisdiction and the specific facts of the case, there may be variations in the standards and criteria for proving state action.

Important First Amendment Cases in United States History

The First Amendment of the United States Constitution guarantees freedoms of religion, speech, press, assembly, and petition. Throughout American history, these rights have been tested, defended, and expanded through a series of landmark Supreme Court cases. Below are the top 10 most significant First Amendment cases in American history.

1. Near v. Minnesota (1931): Near v. Minnesota is seen as the first case to recognize that the First Amendment does, in fact, apply to state laws. In this case, the Supreme Court ruled that Minnesota's law that prohibited the publication of any “malicious, scandalous, and defamatory” material was unconstitutional.

2. New York Times Co. v. Sullivan (1964): This case is significant because it established the “actual malice” standard for defamation cases involving public figures. The Supreme Court ruled that a public official must prove that the statements made against them were made with “actual malice”—that is, with the knowledge that the statements were false or with reckless disregard for the truth.

3. Tinker v. Des Moines Independent Community School District (1969): This case involved several students who were suspended from school for wearing black armbands as a form of protest against the Vietnam War. The Supreme Court ruled that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

4. Brandenburg v. Ohio (1969): In this case, the Supreme Court overturned a conviction for advocating the use of violence against the government. The Court ruled that the First Amendment protects speech that advocates violence only if it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

5. Texas v. Johnson (1989): This case involved a protester who burned an American flag as a form of protest against the Reagan Administration. The Supreme Court ruled that burning the flag was a form of symbolic speech that was protected under the First Amendment.

6. United States v. Eichman (1990): This case involved a challenge to a federal law that made it a crime to burn the American flag. The Supreme Court ruled that the law violated the First Amendment because it prohibited speech that was protected under the First Amendment.

7. R.A.V. v. City of St. Paul (1992): This case involved a challenge to a St. Paul ordinance that prohibited the display of symbols, such as swastikas, that were likely to anger or alarm others. The Supreme Court ruled that the ordinance was unconstitutional because it was content-based and therefore violated the First Amendment.

8. Virginia v. Black (2003): This case involved a challenge to a Virginia law that prohibited cross burning. The Supreme Court ruled that the law was constitutional because it was content-neutral and therefore did not violate the First Amendment.

9. Citizens United v. Federal Election Commission (2010): This case involved a challenge to a federal law that prohibited corporations and labor unions from spending money to support or oppose political candidates. The Supreme Court ruled that the law violated the First Amendment because it prohibited political speech.

10. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018): This case involved a challenge to a Colorado law that prohibited businesses from refusing to serve customers based on their sexual orientation. The Supreme Court ruled that the law violated the First Amendment because it was not applied in a neutral manner. From free speech to free press, the First Amendment has been at the center of many landmark Supreme Court cases throughout American history.

These 10 cases are some of the most significant in expanding and protecting the freedoms guaranteed by the First Amendment.

Attorney Fees in Civil Rights Cases

A Plaintiff in a first amendment violation case can seek their attorney fees if they are the prevailing party. For a defendant to recover their attorney fees if the Plaintiff loses, it a bit more difficult.  Case law on this point holds:

"In any action or proceeding to enforce a provision of sections 1977, 1977A, 1978, 1979, 1980, and 1981 of the Revised Statutes [42 USCS §§ 1981–1983, 1985, 1986], title IX of Public Law 92-318 [20 USCS §§ 1681 et seq.], the Religious Freedom Restoration Act of 1993, the Religious Land Use and Institutionalized Persons Act of 2000, title VI of the Civil Rights Act of 1964 [42 USCS §§ 2000d et seq.], or section 40302 of the Violence Against Women Act of 1994, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity such officer shall not be held liable for any costs, including attorney's fees, unless such action was clearly in excess of such officer's jurisdiction."

For the district court to properly award a defendant attorneys' fees in a § 1983 action, the court must find that:

(1) the defendant is a prevailing party

and

(2) that the plaintiff's claims are frivolous, unreasonable, or without foundation. Hughes v. Rowe; 5 Stover v. Hattiesburg Pub. Sch. Dist.  See Fox v. Vice (5th Cir. 2010) 594 F.3d 423, 426.)

This is not an easy task if the claim was reasonable, albeit losing.

The Fox court also noted:

"When determining whether a claim is frivolous, unreasonable, or without foundation, a district court should consider:

(1) whether the plaintiff established a prima facie case,

(2) whether the defendant offered to settle,

and

(3) whether the court held a full trial. Myers v. City of West Monroe.

In making these determinations, a court must "resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation." 

Instead, a court must ask whether "'the case is so lacking in arguable merit as to be groundless or without foundation rather than whether the claim was ultimately successful.'"

Dazzle your friends with Knowledge of First Amendment free speech

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Legal Citations:

Near v. Minnesota, 283 U.S. 697 (1931);

New York Times Co. v. Sullivan, 376 U.S. 254 (1964);

Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969);

Brandenburg v. Ohio, 395 U.S. 444 (1969);

Texas v. Johnson, 491 U.S. 397 (1989);

United States v. Eichman, 496 U.S. 310 (1990);

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992);

Virginia v. Black, 538 U.S. 343 (2003);

Citizens United v. Federal Election Commission, 558 U.S. 310 (2010);

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018).

Contact a California and Arizona First Amendment Rights Lawyer

Our firm has been fighting for clients from all walks of life since 2004.  If you feel your free speech rights have been infringed by a "state actor" (generally a publicly funded institution, or officer, including college professors, police officers, politicians on TikTok or social media, call us to discuss your case.  We can be reached at (877) 276-5084.