FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEN BLAIR,
Plaintiff-Appellant,
v.
BETHEL SCHOOL DISTRICT, a
municipal corporation; TOM
SEIGEL, superintendent of Bethel
School District and in his
individual capacity and his marital
community; JANE DOE SEIGEL;
BRENDA ROGERS, president of the No. 08-35895
Bethel School District school
board and in her individual D.C. No.
CV-08-5181-FDB
capacity and her marital
community; JOHN DOE ROGERS; OPINION
SUSAN SMITH, vice president of the
Bethel School District school
board in her individual capacity
and her marital community; JOHN
DOE SMITH; JOHN MANNING, board
member of the Bethel School
District school board in his
individual capacity and his marital
community; JANE DOE MANNING,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Franklin D. Burgess, District Judge, Presiding
Argued and Submitted
October 16, 2009—Seattle, Washington
8725
8726 BLAIR v. BETHEL SCHOOL DISTRICT
Filed June 14, 2010
Before: Johnnie B. Rawlinson and Consuelo M. Callahan,
Circuit Judges, and Larry A. Burns,* District Judge.
Opinion by Judge Burns
*The Honorable Larry Alan Burns, District Judge for the Southern Dis-
trict of California, sitting by designation.
8728 BLAIR v. BETHEL SCHOOL DISTRICT
COUNSEL
Paul A. Lindenmuth, Law Offices of Ben F. Barcus & Asso-
ciates, PLLC, Tacoma, Washington, for the plaintiff-
appellant.
William A. Coats and Daniel C. Montopoli, Vandeberg John-
son & Gandara, Tacoma, Washington, for the defendants-
appellees.
OPINION
BURNS, District Judge:
Ken Blair maintains his First Amendment rights were vio-
lated when his fellow school board members voted to remove
him as their vice president because of his relentless criticism
of the school district’s superintendent. The district court dis-
agreed, and so do we. To be sure, the First Amendment pro-
tects Blair’s discordant speech as a general matter; it does not,
however, immunize him from the political fallout of what he
says.
I
BACKGROUND
Blair has served as a publicly elected member of the Bethel
School District School Board since 1999. There are four other
Board members, who are also publicly elected. The members
of the Board elect their own president, vice president, and leg-
islative representative. Blair has served in each position over
the years, but most recently, until October 2007, he was the
Board’s vice president.
Defendant-Appellee Tom Seigel was hired as superinten-
dent of the Bethel School District in 2000. Blair has been a
BLAIR v. BETHEL SCHOOL DISTRICT 8729
persistent critic of Seigel almost from the beginning, repeat-
edly impugning his integrity and competence. There are many
examples, but one makes the point: early in Seigel’s first
term, Blair apparently insinuated to the Board and to the State
Auditor that Seigel was defrauding the school district by
requesting reimbursement for his moving expenses when in
fact Seigel had been moved by the military. Blair is appar-
ently the only Board member who is dissatisfied with Seigel,
and since 2005 he has consistently voted against renewing
Seigel’s contract.
On September 25, 2007, the Board voted 4-1 to extend Sei-
gel’s contract and raise his pay. Blair was the lone dissenter.
The next day, he explained his dissenting vote to a newspaper
reporter, who then quoted Blair in a story saying, “My biggest
issue with the superintendent is trust . . . . I have too many
examples to say he’s doing a good job.”
Blair’s statements to the reporter were the last straw for his
fellow Board members, and on October 9, 2007 they voted to
remove him as vice president. Blair then sued the Bethel
School District, Seigel, and the other Board members under
42 U.S.C. § 1983, alleging that he was retaliated against for
exercising his First Amendment rights to free speech and peti-
tion. The district court granted summary judgment for the
defendants, finding the Board’s action didn’t prevent Blair
from continuing to speak out, vote his conscience, and serve
his constituents as a member of the Board. We agree with this
finding, and with the district court’s more general conclusion
that the First Amendment doesn’t shield public figures from
the give-and-take of the political process.
II
DISCUSSION
[1] The First Amendment forbids government officials
from retaliating against individuals for speaking out. Hartman
8730 BLAIR v. BETHEL SCHOOL DISTRICT
v. Moore, 547 U.S. 250, 256 (2006); see also Gibson v.
United States, 781 F.2d 1334, 1338 (9th Cir. 1986). To
recover under § 1983 for such retaliation, a plaintiff must
prove: (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;1 and (3) there
was a substantial causal relationship between the constitution-
ally protected activity and the adverse action. See Pinard v.
Clatskanie School Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006).
Here, it is uncontested that Blair’s votes as a Board member
and his statements to the newspaper were protected by the
First Amendment, and that Blair’s advocacy against Seigel
was the cause for the Board’s decision to remove him from
the vice president position. It is also uncontested that the
members of the Board are “state actors.”2 Were this a typical
First Amendment retaliation case, we would be left to evalu-
1
The district court held that “in order for governmental action to trigger
First Amendment scrutiny, it must carry consequences that infringe upon
protected speech.” Blair v. Bethel Sch. Dist., No. C08-5181, 2008 WL
4740159 at *3 (W.D. Wash. Oct. 24, 2008) (citation omitted). Just to be
clear, we do not require actual infringement in retaliation cases. Rather,
“[i]n a First Amendment retaliation case, an adverse . . . action is an act
that is reasonably likely to deter employees from engaging in constitution-
ally protected speech.” Coszalter v. City of Salem, 320 F.3d 968, 970 (9th
Cir. 2003) (emphasis added). Put differently, the question is whether the
alleged retaliation would “chill or silence a person of ordinary firmness”
from continuing to speak out. Mendocino Envtl. Ctr. v. Mendocino
County, 192 F.3d 1283, 1300 (9th Cir. 1999).
2
To be liable under § 1983, a government official must be “acting, pur-
porting, or pretending to act in the performance of his or her official
duties.” McDade v. West, 223 F.3d 1135, 1140 (9th Cir. 2000). Although
it is not obvious to us that the election (or demotion) of board officers is
an official duty of the Board members — in the same category, for exam-
ple, as overseeing the hiring of teachers and making curriculum decisions
— we assume the Board members were state actors because the issue is
undisputed here. See Anderson v. Warner, 451 F.3d 1063, 1068 (9th Cir.
2006) (whether an officer acts under state law turns on the nature and cir-
cumstances of his conduct).
BLAIR v. BETHEL SCHOOL DISTRICT 8731
ate only whether the Board’s action would chill a person of
ordinary firmness from continuing to speak out.
But Blair’s case is not a typical First Amendment retalia-
tion case. What’s different here is the “adverse action” Blair
is challenging was taken by his peers in the political arena.
The record makes clear that Blair’s fellow Board members
wanted a vice president who shared their views. Because Blair
didn’t, they removed him by a procedurally legitimate vote.
The peculiar context in which Blair’s case arises distinguishes
it from the ordinary retaliation case in three crucial ways.
[2] First, the adverse action Blair complains of was a rather
minor indignity, and de minimis deprivations of benefits and
privileges on account of one’s speech do not give rise to a
First Amendment claim. Rather, for adverse, retaliatory
actions to offend the First Amendment, they must be of a
nature that would stifle someone from speaking out. The most
familiar adverse actions are “exercise[s] of governmental
power” that are “regulatory, proscriptive, or compulsory in
nature” and have the effect of punishing someone for his or
her speech. Laird v. Tatum, 408 U.S. 1, 11 (1972).
The prototypical plaintiff in these cases is a government
worker who loses his job as a result of some public communi-
cation critical of the government entity for whom he works,
e.g., Pickering v. Bd. of Educ. of Township High Sch. Dist.,
391 U.S. 563, 564 (1968) (teacher dismissed by the Board of
Education after sending a letter critical of the Board to a local
newspaper), or a regulated entity that is stripped of its busi-
ness license after engaging in speech that displeases the regu-
lator, e.g., CarePartners, LLC v. Lashway, 545 F.3d 867, 871
(9th Cir. 2008) (boarding home operators engaged in lobbying
and other speech and petition activities which they alleged led
to retaliation by the regulators), or a prisoner who is retaliated
against by prison officials for filing grievances or initiating
actions in court, e.g., Bruce v. Ylst, 351 F.3d 1283, 1286 (9th
Cir. 2003) (prison officials allegedly retaliated against pris-
8732 BLAIR v. BETHEL SCHOOL DISTRICT
oner on the basis of his jailhouse lawyering activities), or citi-
zens who are allegedly targeted by law enforcement because
of their political speech activities, e.g., Mendocino Envtl. Ctr.,
192 F.3d at 1288-89 (police officers sued for engaging in con-
spiracy to falsely accuse political activists of a crime in an
effort to inhibit their political activities).
[3] Blair has little in common with these prototypical
plaintiffs. Through the ordinary functioning of the democratic
process, he was removed from a titular position on a school
board by the very people who elected him to the position in
the first place. The Board’s objective in stripping Blair of his
leadership position, ostensibly, wasn’t to punish him for his
advocacy but instead to put in place a vice president who bet-
ter represented the majority view. But even if the Board’s
intent was to play political hardball in response to Blair’s
advocacy, his authority as a member of the Board was unaf-
fected; despite his removal as Board vice president, he
retained the full range of rights and prerogatives that came
with having been publicly elected. The district court found
Blair’s removal from the Board leadership position didn’t
chill his speech, and the record supports that finding.
[4] Second, as the district court intuited, more is fair in
electoral politics than in other contexts. It is common for
political bodies to have internal leadership structures and for
members of those bodies to be openly partisan in voting for
and against one another for leadership positions. In fact, we
expect political officials to cast votes in internal elections in
a manner that is, technically speaking, retaliatory, i.e., to vote
against candidates whose views differ from their own. Indeed,
an internal political leadership election is often a referendum
on the majority point of view. Yet, to accept Blair’s argument
is to hold that the First Amendment prohibits elected officials
from voting against candidates whose speech or views they
don’t embrace.3 Experience and political reality convince us
3
Blair argues his speech deserves enhanced protection because it was
political speech that exposed corruption, mismanagement and waste
BLAIR v. BETHEL SCHOOL DISTRICT 8733
this argument goes too far; the First Amendment does not suc-
cor casualties of the regular functioning of the political process.4
To lend perspective to this point, we conceive little differ-
ence between what the Board’s internal vote against Blair
accomplished and what voters in a general public election
might do if they too were disaffected by Blair’s advocacy. In
other words, it wouldn’t have been controversial in the least
— and certainly not a violation of the First Amendment —
had Blair’s constituents refused to support his reelection on
account of his outspoken opposition to Superintendent Seigel.
We see no reason the Board members’ votes here should be
regulated in a way that the general public’s are not.
Third, it is significant that Blair isn’t the only party in this
case whose interests implicate First Amendment concerns. To
the contrary, we assume all of the Board members have a pro-
within the Bethel School District. It is true that “[p]olitical speech lies at
the core of the First Amendment’s protections.” Kaplan v. County of Los
Angeles, 894 F.2d 1076, 1079 (9th Cir. 1990). However, we have limited
the heightened protection of speech on matters of public concern to private
citizens and government employees speaking as private citizens. See, e.g.,
Posey v. Lake Pend Oreille Dist. No. 84, 546 F.3d 1121, 1123 (9th Cir.
2008) (involving a high school “security specialist” who voiced concerns
about a school district’s safety and emergency policies). No equivalent
protection has been extended to government officials engaged in the give-
and-take of politics.
4
To be very clear, we do not suggest that the retaliatory acts of elected
officials against their own can never violate the Constitution. Obviously,
they can. See Bond v. Floyd, 385 U.S. 116 (1966). In Bond, the plaintiff
had been popularly elected to the Georgia House of Representatives, but
was blocked from taking office by a vote of his peers on the trumped-up
ground he could not, in good faith, take the requisite oath of office to sup-
port the Constitution. Id. at 118. The refusal to seat Bond was retaliatory
and had the effect, deleterious to democracy, of nullifying a popular vote.
Id. at 136-37. This would be a different case had Blair’s peers somehow
managed to vote him off the Board or deprive him of authority he enjoyed
by virtue of his popular election — but they didn’t. Bond and Blair have
little more in common than the enmity of their peers.
8734 BLAIR v. BETHEL SCHOOL DISTRICT
tected interest in speaking out and voting their conscience on
the important issues they confront — issues like teachers’
pay, curriculum policy, and allocation of education resources.
The First Circuit has recognized this point explicitly: “Voting
by members of municipal boards, commissions, and authori-
ties comes within the heartland of First Amendment doctrine,
and the status of public officials’ votes as constitutionally pro-
tected speech [is] established beyond peradventure of doubt
. . . .” Stella v. Kelly, 63 F.3d 71, 75 (1st Cir. 1995). Blair
offers no rationale for why this assumption does not apply to
the Board’s vote on the seemingly less important internal
matter of who among them is best to fill certain titular, leader-
ship positions.
Here, the vote to remove Blair as Board vice president
communicated to Blair and to the public that the Board major-
ity viewed Seigel’s performance very differently from the
way Blair saw it, and wanted to distance itself from Blair’s
criticism of the superintendent. The point isn’t that the vote
against Blair was protected speech simply because it was
expressive. Almost all retaliatory actions can be said to be
expressive, including those that are manifestly unconstitu-
tional. But, while Blair certainly had a First Amendment right
to criticize Seigel and vote against his retention as superinten-
dent, his fellow Board members had the corresponding right
to replace Blair with someone who, in their view, represented
the majority view of the Board.
[5] While this is the first time our circuit has considered a
First Amendment retaliation claim that arises in the context of
the political process and public debate, both the Sixth Circuit
and the Tenth Circuit have evaluated similar claims. In Zilich
v. Longo, 34 F.3d 359, 361 (6th Cir. 1994), the defendants
were city council members who passed a resolution stating
that an outgoing council member who had been a thorn in
their side had never been qualified to hold office. The outgo-
ing member sued on the ground the resolution was retaliation
for his political opposition to the mayor. Id. at 363. The Sixth
BLAIR v. BETHEL SCHOOL DISTRICT 8735
Circuit rejected the claim, recognizing that “[v]oting on legis-
lative resolutions expressing political viewpoints may itself be
protected speech,” and concluding, “[a] legislative body does
not violate the First Amendment when some members cast
their votes in opposition to other members out of political
spite or for partisan, political, or ideological reasons.” Id.
[6] Similarly, in Phelan v. Laramie County Cmty. Coll.
Bd., 235 F.3d 1243, 1245-46 (10th Cir. 2000), a community
college board censured one of its trustees for violating an eth-
ics policy by placing a newspaper ad encouraging the public
to vote against a pending measure. The censured trustee sued,
but the Tenth Circuit held that “[i]n censuring Ms. Phelan,
Board members sought only to voice their opinion that she
violated the ethics policy and to ask that she not engage in
similar conduct in the future.” Id. at 1248.
[7] We agree with the analysis of the Sixth Circuit in Zilich
and the Tenth Circuit in Phelan. Blair’s removal from the titu-
lar position of Board vice president is, for First Amendment
purposes, analogous to the condemning resolution in Zilich
and the censure in Phelan, and those decisions support our
conclusion here. Disagreement is endemic to politics, and nat-
urally plays out in how votes are cast. While the impetus to
remove Blair as Bethel School Board vice president undoubt-
edly stemmed from his contrarian advocacy against Siegel,
the Board’s action did not amount to retaliation in violation
of the First Amendment.
III
CONCLUSION
The decision of the district court is AFFIRMED.