The First Amendment’s guarantee of free speech does not protect a volunteer member of a municipal advisory board who was appointed by the city council member who fired her. Because their political views differed, and since she was found to be the “public face” of the board, she could be dismissed for “purely political reasons.”

In a unanimous decision, a three-judge panel of the Ninth Circuit Court of Appeals affirmed the ruling of the U.S. District Court for the Central District of California. The opinion, authored by Circuit Judge Andrew J. Hurwitz, affirmed the Central District’s decision because the plaintiff, Shayna Lathus, failed to state a claim. The appellate court held that the district court did not abuse its discretion when it denied Lathus leave to amend her dismissed complaint.

Lathus was a volunteer member of the Citizen Participation Advisory Board (CPAB) for the city of Huntington Beach, California. After she had lost her 2018 bid for re-election to the City Council, she was appointed to CPAB by Kim Carr, an elected member of the City Council. The City’s Municipal Code allows each of the seven City Council members to appoint someone to CPAB. The Code also gives City Council members the right to remove anyone they appoint without cause.

Lathus sparked her dismissal when she was photographed at an immigrants’ rights rally. Carr believed that the immigrants were members of Antifa, an organization that the Anti-Defamation League describes as a “decentralized, leaderless movement composed of loose collections of groups, networks and individuals.” The controversial group’s “professed purpose is to oppose fascism.”

Carr confronted Lathus about her participation in the rally. Lathus then publicly denounced Antifa. But that wasn’t enough for Carr, who found Lathus’ statement insufficient and cause for removal from CPAB. Fearing that her constituents might link her to Antifa, Carr dismissed Lathus for political incompatibility and their “lack of shared values.”

Carr explained that “those that do not immediately denounce hateful, violent groups do not share

my values and will not be a part of my team.” The suit against the City of Huntington Beach by Lathus followed. In it, she claimed that her rights of speech, association, and assembly guaranteed by the First Amendment were violated. She also said that Carr’s demand for a public denouncement statement was “unconstitutionally compelled speech.”

The District Court agreed that Lathus could be seen as the “public face” of Carr. It said that Carr was allowed to consider the political ramification of both Lathus’ appointment and removal. It also rejected plaintiff’s free speech claim because the speech of volunteer members of the advisory board can be “perceived as the elected official’s own.” Lathus appealed.

Justice Hurwitz began his opinion by summarizing that the “critical issue” in the case is whether Lathus is a “political extension of Carr on the CPAB.” He quickly agreed with District Court’s conclusion that she was and thus could be “fired for purely political reasons.”

He then described the reason for CPAB, saying it was to provide citizen participation related to the block grant program of the Department of Housing and Urban Development (HUD). HUD’s program aimed to address issues related to “low and moderate-income households.”

Following this explanation, he said that Lathus’ attendance at the rally was clearly protected by the First Amendment. But this foundational constitutional right did not protect her from dismissal. Citing precedent related to other government firings, Hurwitz noted that the question before the Ninth Circuit was whether the “hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.”

He concluded that the public could infer that a CPAB member’s “actions and statement reflect the views and goals” of the appointing City Council member. Lathus was one of the “public face(s)” of Carr.” Also, the housing matters before CPAB relate to a “vital political issue.” The Council Member is thus “entitled to an appointee who represents her political outlook and priorities.” Lathus’ position on CPAB required her to give input. In addition, the City’s Municipal Code makes it clear that CPAB members can be dismissed for “political incompatibility.”

The Circuit Court then reviewed Lathus’ compelled speech claim. The New York Times provided background on this First Amendment guarantee, explaining that First Amendment protections extend to barring the “government from compelling people to express things they do not want to say.” Lathus claimed Carr’s demand for a public statement was a condition of her continued participation on the CPAB. Once again, the Court said that Lathus’ public statement could be perceived as Carr’s so was not compelled.

In conclusion, the opinion emphasized that Lathus was Carr’s “surrogate.” Carr is allowed to “distance herself” from “an appointee who might be a political liability.”