from Sullivan v. Univ. of WashingtonDecided today by the Ninth Circuit (joined by Judge Sandra Ikuta, Judge Daniel Collins and District Judge Sidney Fitzwater [N.D. Tex.]):
Appointees to a university committee created to meet federal legal requirements [related to animal welfare in research] They wanted to direct the university from publishing the appointment letter to their official committee. {People for the Ethical Treatment of Animals (PETA), an organization opposed to the use of animals in research, [had] filed a public records request with the University pursuant to Washington’s Public Records Act (PRA).} Employers claim that disclosure of such letters, which contain their personally identifying information {such as name, email address, office address, and work affiliation}, constitutes their disclosure. would violate the association’s First Amendment rights
The district court held that there was a serious question on the merits of that argument and ordered preliminary disclosure. We disagree. Committee members’ performance of their official duties is not protected by the First Amendment right of expressive association, and therefore disclosure of public records relating to the performance of such duties does not preclude that right….
The [Supreme] The Court recognized that “[a]n The freedom of individuals to speak, to worship, and to petition the government for a redress of grievances cannot be vigorously protected from state interference unless a mutual freedom to engage in group efforts toward those ends is also guaranteed.” … This constitutionally expressive right of association Mandatory violations may be “revealing the truth of membership in a group seeking anonymity” because “[i]Violation of privacy in group association may be essential to preserving freedom of association in many situations, particularly where a group espouses dissenting beliefs.”
However, not all groups are entitled to these First Amendment protections; It can only be invoked by groups that actually engage in expressive associations. Individuals engage in expressive association when they join with others to pursue “a variety of political, religious, cultural, or social objectives,” including the advocacy of both public and private viewpoints, the advancement and transmission of beliefs and ideas, and “a system of values.” Members involved in such efforts are generally protected from expressing “opinions that unite them.” …
The facts of this case preclude the committee members’ argument that disclosure of their appointment letters pursuant to the PRA impermissibly precludes the selection of expressive associations that the First Amendment protects. Appointment letters exist (and are part of the university’s public records) only because committee members were appointed by the university in accordance with statutory and regulatory criteria to ensure diverse representation. Their “group association” as committee members is not for the purpose of effective advocacy of their views or “pursuing their legitimate personal interests,” but rather to meet federal requirements. The committee is not unlike a private association where members choose their own objectives and decide how to further them; Here, federal law defines both the purpose of the committee and its functions. Because, while performing their work on the committee, members do not engage in an association deemed “expressive” by the Supreme Court or our precedents, the First Amendment right of expressive association does not protect them from university disclosure of personally identifiable information. In their appointment letter.
Our conclusion that a committee formed by the government to carry out official purposes does not engage in expressive association is consistent with the case that the First Amendment does not protect the speech of public employees speaking “in accordance with their official duties.” Garcetti v. United States. onion (2006). under Garcetti, only “when an employee speaks as a citizen of public concern” do Supreme Court “cases indicate that the First Amendment may be implicated.” The rationale behind this approach is that the government may “impose certain restrictions on the speech of its employees” that “would be unconstitutional if applied to the general public,” because “[t]The government’s interest in achieving its goals as effectively and efficiently as possible rises from a relatively subordinate interest when it acts as an employer to a sovereign when it acts as a substantial one.” … [T]The rules governing speech by government employees also apply to government volunteers as well as independent government contractors and business vendors.
Here, the Supreme Court’s jurisprudence governing public employee speech points to the same conclusion as its jurisprudence governing expressive association. The right of expressive association protects the kind of collective effort that would be protected by the First Amendment if pursued on an individual basis. But here the committee members resemble government volunteers or contractors as they are appointed by the university to perform its public functions. And because an individual member’s committee work (such as preparing and issuing inspection certification reports) falls within the scope of the member’s official duties, that work is unprotected public employee speech. Therefore, because the work of committee members on an individual basis is unprotected by the First Amendment, their collective work on the committee is likewise unprotected.
Accordingly, because the committee members’ association is in the performance of their official duties and is not a private expressive activity, it is not protected by the First Amendment right of expressive association. Committee members may be appointed as individuals other Activities that are expressive in nature. But letters of appointment relate to the service of committee members on an official committee, and such activity is not protected by expressive association rights. Therefore, the University’s disclosure of committee members’ appointment letters pursuant to the PRA would not impermissibly burden First Amendment rights of expressive association. Because the district court committed a legal error in concluding that, by serving on the committee, the members engaged in that First Amendment protected activity, it abused its discretion.
{Committee members argue that First Amendment doctrines governing public employee speech “do not apply to teaching and academic writing performed pursuant to the official duties of teachers and professors,” Demers v. Austin (9th Cir. 2014), and therefore their work for a university is entitled to First Amendment protection. We reject this argument. Demers Does not apply here because, in the performance of the committee’s official functions, the members are not thus engaged in “teaching and academic writing.”}
{Because we conclude that association of members is not protected by the First Amendment right of expressive association, we do not address PETA’s arguments about whether there is a reasonable possibility that committee members would suffer constitutionally significant threats or harassment if their identities were known.}
Judge Fitzwater agreed:
The panel’s opinion does not address PETA’s arguments about whether there is a reasonable likelihood of constitutionally significant threats or harassment if the identities of committee members are known, as the opinion correctly concludes that association of members is not protected by the First Amendment. Right to expressive association. But as the panel’s opinion acknowledges, other than the committee chair and chief veterinarian, who have identified themselves, other committee members “prefer to remain anonymous out of concern for their personal safety and the safety of their families and pets.”
When it comes to organizations like PETA, these concerns may be well founded. See, e.gRichard L. Cupp, Jr., Private animals and damage considerations, 98 Wash. UL Rev. 1313, 1340 (2021) (PETA “open about using ‘controversial tactics’ to gain media attention”). But nothing in the panel’s opinion suggests that Washington State is obligated by its Public Records Act to release personal information that could threaten the personal safety of committee members and their families and pets. As the Panel’s opinion notes, the Act’s disclosure requirements are already subject to broad statutory exemptions. Washington State retains the authority to adopt other exemptions intended to prevent necessary disclosures of personal information that could endanger such committee members or their families or property. There is nothing contrary to the opinion of the panel.
Congratulations to Peter D. Hawkes (Angeli Law Group LLC), who represented PETA