FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN J. BOQUIST, No. 20-35080
Plaintiff-Appellant,
D.C. No.
v. 6:19-cv-01163-MC
PETER COURTNEY, Oregon State
Senate President, in his official OPINION
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
2 BOQUIST V. COURTNEY
capacities in the Legislative
Branch of the State of Oregon,
Defendants-Appellees.
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 Fed. R. App. P. 34(a)(2).
BOQUIST V. COURTNEY 3
SUMMARY**
Civil Rights
The panel reversed the district court’s dismissal of a 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
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 BOQUIST V. COURTNEY
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
BOQUIST V. COURTNEY 5
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.
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, Salem, Oregon; for
Defendants-Appellees.
OPINION
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,
6 BOQUIST V. COURTNEY
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. The
senate majority members, however, will have an opportunity
to raise affirmative defenses, including that their actions were
motivated by legitimate security concerns.1
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”).
1
In a memorandum disposition filed concurrently with this opinion,
___ Fed. App’x ___, we affirm the district court’s dismissal of Boquist’s
remaining claims.
2
The complaint attaches internal State Senate memoranda, news
articles, and a transcript of a hearing before the Senate Special Committee
on Conduct.
BOQUIST V. COURTNEY 7
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 protest 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
8 BOQUIST V. COURTNEY
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 reached
between Courtney and Senate Minority Leader Herman
Baertschiger, the minority senators returned to the Capitol on
June 29, 2019.
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 conditions 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
BOQUIST V. COURTNEY 9
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 violation 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 28 U.S.C. § 1291.
II
We review de novo a district court’s order granting a
motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to
state a claim. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th
Cir. 2009). To survive a motion to dismiss, the plaintiff’s
complaint “must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
claim is facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
10 BOQUIST V. COURTNEY
Iqbal, 556 U.S. at 678. A court must “draw all reasonable
inferences in favor of the nonmoving party.” Retail Prop. Tr.
v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938,
945 (9th Cir. 2014). “Determining whether a complaint states
a plausible claim for relief will . . . be a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679.
Ultimately, “[d]ismissal is proper under Rule 12(b)(6) if it
appears beyond doubt that the non-movant can prove no set
of facts to support its claims.” Adams v. Johnson, 355 F.3d
1179, 1183 (9th Cir. 2004). Additionally, where, as here, a
plaintiff proceeds pro se, we must “construe the pleadings
liberally” and “afford the petitioner the benefit of any doubt.”
Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A liberal
construction of a pro se complaint, however, does not mean
that the court will supply essential elements of a claim that
are absent from the complaint. See Litmon v. Harris, 768
F.3d 1237, 1241 (9th Cir. 2014).
“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 out 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)).
BOQUIST V. COURTNEY 11
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.”
U.S. Const. amend. I. This prohibition applies to state and
local governments by way of incorporation. Nordyke v. Santa
Clara Cty., 110 F.3d 707, 710 (9th Cir. 1997). “[A]s a
general matter, the First Amendment prohibits government
officials from subjecting individuals to retaliatory actions
after the fact for having engaged in protected speech.”
Houston Cmty. Coll. Sys. v. Wilson, — S. Ct. —, No. 20-804,
2022 WL 867307, at *3 (U.S. Mar. 24, 2022) (quoting Nieves
v. Bartlett, 139 S. Ct. 1715, 1722 (2019)). “If an official
takes adverse action against someone based on that forbidden
motive, and non-retaliatory grounds are in fact insufficient to
provoke the adverse consequences, the injured person may
generally seek relief by bringing a First Amendment claim.”
Id. (internal quotation marks omitted).
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, and 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
12 BOQUIST V. COURTNEY
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, — S. Ct. —, 2022
WL 867307, at *5. An elected official’s claim under
42 U.S.C. § 1983 for First Amendment retaliation by his
elected peers begins with the elements of the plaintiff’s prima
facie case. As we explained in Blair, the elected official
bringing such a legal action has the initial burden of pleading
and proving: “(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.”
Id. at 543 (footnote omitted).
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
criticized the school superintendent to a reporter, his fellow
board members voted to remove him as vice president. Id.
at 543. The plaintiff sued under § 1983 “alleging that he was
retaliated against for exercising his First Amendment rights
to free speech and petition.” Id. Applying the three-pronged
test for a plaintiff’s prima facie case of retaliation, we held
that the first prong was met: it was uncontested that the
plaintiff’s statements to the reporter were protected by the
First Amendment. See id.; see also Wood v. Georgia,
BOQUIST V. COURTNEY 13
370 U.S. 375, 388 (1962) (noting that a county sheriff who
criticized a county judge in a letter to a local newspaper had
engaged in “precisely one of the types of activity envisioned
by the Founders in presenting the First Amendment for
ratification”).
The second prong of the prima facie case is satisfied if the
elected official was subjected to a “materially adverse
action.” Wilson, — S. Ct. —, 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
14 BOQUIST V. COURTNEY
courts have applied different tests to “distinguish material
from 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 Amendment retaliation case must account for
two key factors when the plaintiff is an elected official. Id.
First, criticism from their colleagues alone is unlikely to be
material, because “[i]n this country, we expect elected
representatives to shoulder a degree of criticism about their
public service from their constituents and their peers.” Id.
Second, courts should consider whether the purported adverse
action was “itself a form of speech” aimed at “the conduct of
public office.” Id. According to the Court, elected officials
have the “right to examine public characters and measures
through free communication,” and a First Amendment
retaliation claim “cannot be used as a weapon” against
elected official defendants who exercised that right. Id.
(citing Madison’s Report on the Virginia Resolutions (Jan. 7,
1800), in 17 Papers of James Madison 345 (D. Mattern, J.
Stagg, J. Cross, & S. Perdue eds. 1991)). In light of these
considerations, Wilson held that the censure of the Board
member was not a materially adverse action because the
censure was, itself, “a form of speech by elected
representatives [that] concerned the public conduct of another
elected representative,” and the censure “did not prevent [the
Board member] from doing his job,” nor did it “deny him any
privilege of office.” Id. at *6.
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
BOQUIST V. COURTNEY 15
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 council’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 action
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.
16 BOQUIST V. COURTNEY
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,” — S. Ct.
—, 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 against elected officials, the Court has
confirmed that they may qualify as material adverse actions.
For example, when a state legislature blocked a duly elected
state representative from taking office due to his statements
criticizing the government’s policy in Vietnam and the
selective service laws, the elected official suffered a violation
of his First Amendment rights. See Bond v. Floyd, 385 U.S.
116, 136–37 (1966). Similarly, Wood held that a state court
violated the First Amendment when it used its contempt
power to sanction an elected sheriff for his out-of-court
statements criticizing a grand jury investigation into
purported block voting by black citizens. See Wood, 370 U.S.
at 392–93. In short, an adverse action against an elected
official is material when it “prevent[s] [the elected official]
from doing his job,” Wilson, — S. Ct. —, 2022 WL 867307,
at *6, “deprive[s] him of authority he enjoyed by virtue of his
popular election,” or otherwise prevents him from enjoying
“the full range of rights and prerogatives that came with
having been publicly elected,” Blair, 608 F.3d at 544 & n.4.
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
BOQUIST V. COURTNEY 17
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 protected 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 § 1983 claims of First
Amendment retaliation, and that approach applies to elected
18 BOQUIST V. COURTNEY
officials that have made a prima facie showing of retaliation.3
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.”
Hartman, 547 U.S. at 260 (citing Mt. Healthy, 429 U.S. at
287). “If there is a finding that retaliation was not the but-for
cause of the [adverse action], the claim fails for lack of causal
connection between unconstitutional motive and resulting
harm, despite proof of some retaliatory animus in the
official’s mind.” Id.
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
3
We stopped our analysis in Blair after the plaintiff failed to show a
material adverse action, and therefore failed to make a prima facie case of
First Amendment retaliation. See 608 F.3d at 546.
BOQUIST V. COURTNEY 19
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 official’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.
20 BOQUIST V. COURTNEY
C
We next address whether the framework that applies to
evaluating speech restrictions that the government imposes on
its employees also applies to restrictions on the speech of
elected officials. We conclude it does not.
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
BOQUIST V. COURTNEY 21
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 § 1983 retaliation action if it
shows that its “legitimate interests” as employer or contractor
“outweigh the free speech interests at stake.” Umbehr,
518 U.S. at 685. A court must balance the free speech rights
of government employees against the government’s interest,
“as an employer, in promoting the efficiency of the public
services it performs through its employees.” Pickering,
391 U.S. at 568. This requirement is “based on the need to
balance government employees’ speech rights with the
government’s needs as an employer.” CarePartners,
545 F.3d at 880.
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
4
“Speech involves matters of public concern when it can be fairly
considered as relating to any matter of political, social, or other concern
to the community, or when it is a subject of legitimate news interest; that
is, a subject of general interest and of value and concern to the public.”
Lane v. Franks, 573 U.S. 228, 241 (2014) (quotation marks omitted).
22 BOQUIST V. COURTNEY
government need to regulate their speech in order to deliver
public services “effectively and efficiently” or to control
“daily management functions.” Umbehr, 518 U.S. at 678.
An elected official’s speech does not interfere with his
performance of duties; to the contrary, the speech is a vital
component of his duties because “[l]egislators have an
obligation to take positions on controversial political
questions so that their constituents can be fully informed by
them” and “may be represented in governmental debates by
the person they have elected to represent them.” Bond,
385 U.S. at 136–37. Elected officials therefore have “the
right to enter the field of political controversy,” and “[t]he
role that elected officials play in our society makes it all the
more imperative that they be allowed freely to express
themselves.” Wood, 370 U.S. at 395–96; see also id. at 395
n. 21 (holding that the rule that “[C]ongress has the power to
circumscribe the political activities of federal employees in
the career public service” does not apply to elected officials).
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
BOQUIST V. COURTNEY 23
Twp., 780 F.3d 172, 178 (3rd 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
controversy, 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 easily within the wide latitude given
5
See Charles E. Beggs, Associated Press, Oregon Democrats
Halt House Action (June 26, 2001) (accessible at
https://apnews.com/article/ba59cbad7051ffabb0e22b47695207f5);
Ed Lavandera, CNN, Texas House Paralyzed by Democratic
walkout (May 19, 2003) (accessible at https://www.cnn.com/2003
/ALLPOLITICS/05/13/texas.legislat ure/); Paul J. Weber & Will
Weissert, Associated Press, Texas Democrats leave state to try to
stop GOP voting bill (July 12, 2021) (accessible
at https://apnews.com/article/government-and-politics-texas-votin
g-voting-rights-7d9f2da74fb647b40214fa88ccdbcebb).
24 BOQUIST V. COURTNEY
to elected officials “to express their views,” Bond, 385 U.S.
at 136, even when such political expressions are
“vituperative, abusive, and inexact,” Watts v. United States,
394 U.S. 705, 708 (1969).
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 floor
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
BOQUIST V. COURTNEY 25
serious expression of intent 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).
Taking the allegations in Boquist’s complaint as true, and
drawing all reasonable inferences in Boquist’s favor, we
cannot say that Boquist’s statements were a “serious
expression of an intent to commit an act of unlawful
violence” against Courtney or the state police. Black,
6
In criminal cases, in addition to applying an objective test, we apply
a “subjective test” and ask whether the speaker subjectively intended to
threaten violence. United States v. Bagdasarian, 652 F.3d 1113, 1117
(9th Cir. 2011). The speech must meet both tests in order to qualify as a
“true threat.” Id. We have left open the question whether the subjective
test also applies in civil cases. See Thunder Studios, 13 F.4th at 746–47.
We need not resolve that question here because, taking the allegations in
Boquist’s complaint as true, the objective test is not met.
26 BOQUIST V. COURTNEY
538 U.S. at 359. Boquist alleged that he made his first
statement only to convey that “Courtney’s soul is now lost.”
And at least one reporter who observed Boquist’s second
statement interpreted it “as hyperbole, a response to a
hypothetical event [Boquist] knew would never happen.”7
Because we cannot say it appears beyond doubt that Boquist
“can prove no set of facts to support” his claims, Adams,
355 F.3d at 1183, his First Amendment retaliation claim
survives a motion to dismiss. As the case proceeds through
discovery, additional evidence regarding the nature of
Boquist’s statements may emerge that will have bearing on
whether Boquist’s statements were a serious expression of an
intent to commit unlawful violence against Courtney or the
state police, or merely political hyperbole.
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
7
We are not faced with (and do not address) a situation where
Boquist’s second statement was directed at state police officers intending
to detain Boquist and transport him to the State Capitol against his will.
Indeed, at the time Boquist made his second statement on June 19, 2019,
no state official had authorized or requested the state police to arrest
absent senators.
BOQUIST V. COURTNEY 27
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 elected 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 when the Senate imposed a six-day
suspension on two senators who physically assaulted one
another on the Senate floor. See Deschler’s Precedents of the
United States House of Representatives, H. Doc. 94-661, 94th
Cong., 2d Sess., Volume 3, Ch. 12, §15 at 168 (1979).
Currently, the prevailing view is that members of the
8
From its inception, the House of Representatives has expelled only
five members: three for taking up arms against the Union during the Civil
War, and two for bribery-related federal convictions. See Legislative
Discipline at 4, 21.
28 BOQUIST V. COURTNEY
legislature do not have the power to suspend members and
therefore deprive them of the right to vote. See id. at 187–92;
see also Legislative Discipline at 15. In short, while
legislatures have historically exercised the power to censure
elected officials, the historical record does not leave us with
a “considerable impression” that imposing a 12-hour notice
rule in response to protected speech is a well-established
historical practice considered to be consistent with the First
Amendment. Wilson, — S. Ct. —, 2022 WL 867307, at *5
(quoting McCulloch v. State, 17 U.S. (4 Wheat.) 316, 401
(1819)).
“[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
BOQUIST V. COURTNEY 29
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 notice 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 Amendment
rights that attach to their roles”). The rule likewise interferes
with Boquist’s ability to meet with constituents, elected
officials, and others at the State Capitol Building on short
notice, and therefore “prevent[s] [Boquist] from doing his
job.” Wilson, — S. Ct. —, 2022 WL 867307, at *6. These
30 BOQUIST V. COURTNEY
significant burdens would “chill a person of ordinary firmness
from continuing to engage in the protected activity.” Blair,
608 F.3d at 543. Accordingly, the allegations in Boquist’s
complaint raise a plausible inference that the defendants
engaged in retaliatory conduct that qualifies as a “materially
adverse action.” Id.
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.
BOQUIST V. COURTNEY 31
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 need 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 legitimate 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
that an unconstitutional motivation was not the but-for cause
of the adverse action. See Bostock, 140 S. Ct. at 1739. If
defendants are able to show that retaliation was not a but-for
cause of the rule, the 12-hour notice rule would not violate
Boquist’s First Amendment rights because it would not
32 BOQUIST V. COURTNEY
constitute retaliation for his protected speech. In those
circumstances, Boquist would not be entitled to declaratory
relief based on a theory of illegal retaliation. But the
defendants’ affirmative defense is not apparent as a matter of
law from the face of the complaint and is therefore not
grounds for dismissal at the pleading stage. See Durnford,
907 F.3d at 603 n.8.
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
9
Each party will bear its own costs on appeal.