The Corner

Law & the Courts

In Calif., an Obama-Appointed Judge Protects a Conservative Businessman’s Speech

(Carlos Jasso/Reuters)

If you don’t follow First Amendment case law, the headline of this post reads like an ultimate “man bites dog” scenario. What? I thought we could predict case outcomes based on presidential appointments? That’s far less true than you might think, and close observers will note that the judicial left frequently restrains the worst impulses of the social justice left. For example, progressive California state court judges are currently drawing a legal line in the sand in favor of due process rights in colleges and universities and against campus kangaroo sexual assault courts.

Though it was lost in the national news cycle, Central District of California Judge Jesus Bernal — an Obama appointee — issued a ruling that directly challenged government boycotts and reprisals against allegedly intolerant business owners. The case is called Riley’s American Heritage Farms v. Claremont Unified School District, and the facts are similar enough to government actions against Chick-fil-A that the franchise’s lawyers should take notice.  The farm is a “living history farm,” and it frequently hosts school field trips. At the farm “immersive presentations focused on the American Revolution, Civil War, American colonial farm life, California Gold Rush, and pioneering homesteading history.” The presentations strive to be historically accurate and contain no political or cultural commentary. The farm maintains a social media presence, and its social media accounts are also politics-free.

One of the farm’s owners, James Riley, has his own Facebook account and is outspoken about politics and culture. For example, he once posted, ““I have just realized we may have been the last generation born with only two genders.” He also compared Senator Kirsten Gillibrand to an ice sculpture and “juxtaposed Black Lives Matter members and ISIS.” 

After private citizens complained about the posts, a number of principals prohibited teachers from sending their classes to the farm. When the farm complained to the school district, the district wrote a letter admitting that it was took action because of the owner’s speech:

The District’s letter referenced Riley’s social media commentary and asserted that “[n]othing in the First Amendment obligates the District to continue doing business with any individual or organization that makes public statements which are inimical to the District’s educational mission . . . The District has . . . no obligation to expose children to an individual who engaged in these crude and tasteless comments.” The letter further insinuates the action was necessary to “secure and protect” students from“discrimination and harassment” and to avoid “expos[ing] them to inappropriate sexist or racist attitudes” or “sexually explicit, indecent or lewd speech.”

There was no claim, however, that Riley had engaged in any offensive speech in the presence of students.

The farm sued, and the district filed a motion to dismiss the case, claiming that the farm didn’t have a constitutionally-protected interest in its business relationship with the district and that it had a pedogogical interest in “disassociating itself from offensive speech and in maintaining its education system.” Judge Bernal’s opinion is a short master class in unconstitutional retaliation, and his key conclusion is spot-on:

Defendants cancelled scheduled field trips to the Farm and created a policy prohibiting future field trips. Terminating this benefit is a matter of discretion reserved to the District and its agents; however, Defendants’ cannot terminate the benefit for unconstitutional, retaliatory reasons. Because Plaintiffs plausibly allege the cancelled field trips and prohibition of field trips were in retaliation for Riley’s online political commentary, Plaintiffs state a claim for First Amendment retaliation. 

Judge Bernal’s response to the district’s pedagogical argument was direct and unambiguous: “[A]lthough planning field trips may be a pedagogical matter entrusted to the District’s discretion, the private views of a field trip venue owner do not motivate legitimate pedagogical concerns as a matter of law.”

The lesson here is clear. While private citizens may boycott businesses because they don’t like the owner’s politics, the government faces profound limits on its ability to punish offensive speech — especially when that punishment means taking aim at a business for the purely private actions of its owner. The comparison to the government campaigns against Chick-fil-A is clear. Government bodies like San Antonio’s city council are punishing Chick-fil-A not because of anything that happens in its restaurants but rather because they oppose the Chick-fil-A Foundation’s private, constitutionally-protected contributions.

Before I close, let me note that I’m not entirely unbiased in my assessment of Judge Bernal. He’s defended the First Amendment before — in one of my cases. In 2013, he rejected UCLA’s attempt to dismiss a lawsuit I brought on behalf Dr. James Enstrom, a researcher the university fired after he blew the whistle on government misconduct and academic fraud. After Judge Bernal’s ruling, we were able to settle the case on very favorable terms. UCLA paid Enstrom compensation and effectively rescinded his termination. In fact, Enstrom’s case was my last case before I joined NR full time the next month.

Judge Bernal was right on the law then, and he is right on the law now. Governments may not terminate employees or financial benefits in retaliation for constitutionally-protected speech.

David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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