United States District Court, D. Oregon
Percell OREGON SCHOOL BOARDS ASSOCIATION Attorney for
Steffen STEFFEN LEGAL SERVICES, LLC Attorney for Plaintiff
OPINION & ORDER
A. Hernandez United States District Judge.
Judge Acosta issued a Findings & Recommendation (#41) on
July 26, 2017, in which he recommends the Court deny
Plaintiff's motion for summary judgment and grant
Defendants' motion for summary judgment. Plaintiff has
timely filed objections to the Findings & Recommendation.
The matter is now before me pursuant to 28 U.S.C. §
636(b)(1) and Federal Rule of Civil Procedure 72(b).
any party objects to any portion of the Magistrate
Judge's Findings & Recommendation, the district court
must make a de novo determination of that portion of
the Magistrate Judge's report. 28 U.S.C. §
636(b)(1); Dawson v. Marshall, 561 F.3d 930, 932
(9th Cir. 2009); United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003) (en banc). I have carefully
considered Plaintiff's objections and Defendants'
response to the objections. I agree with Plaintiff that the
Magistrate Judge erred and thus, I decline to adopt the
Findings & Recommendation.
background of the dispute is set forth in Judge Acosta's
July 26, 2017 Findings & Recommendation (the F&R).
Plaintiff, a frequent spectator at Sandy High School athletic
events, made statements while attending those events which
included language Defendants contend is inappropriate.
Plaintiff also expressed other opinions which Defendants
found objectionable as set forth in the F&R. In response,
Defendants directed Plaintiff to refrain from attending Sandy
athletic events on two occasions, initially for two weeks and
then for six months.
Acosta concluded that some of Plaintiff's statements were
not constitutionally protected. F&R at 12-8. He further
determined that some of Defendants' actions would deter a
"'person of ordinary firmness from future First
Amendment activities.'" Id. at 22-23
(quoting Mendocino Envtl. Ctr. v. Mendocino Cty.,
192 F.3d 1283, 1300 (9th Cir. 1999)). He also found that
assuming all of Plaintiff's speech was protected, the
evidence did not establish that Defendants' actions were
based on the content of Plaintiff's speech or the
viewpoints he expressed. Id. at 18-22.
objections to the F&R, Plaintiff argues that Judge Acosta
erred by concluding that (1) some of Plaintiff's speech
was not constitutionally protected, (2) Defendants'
actions were viewpoint neutral, (3) there was no genuine
issue of material fact as to whether Plaintiff's language
was vulgar or offensive; and (4) Defendants' actions were
not intended to chill a person's speech and would not
actually do so. Plaintiff argues that because of these
errors, Judge Acosta improperly granted Defendants'
summary judgment motion and denied Plaintiff's motion. I
agree with Plaintiff that Defendants' motion should be
denied. However, I reject Plaintiff's contention that the
errors require that summary judgment be granted to Plaintiff.
alleges that Defendants retaliated against him for the
exercise of his free speech rights under the First Amendment.
First Am. Compl. ¶ 11; ECF 14. He contends that in
response to "denigrating" comments he made about
Oregon Trail School District staff or policies, and in
response to a discussion he had with an opposing football
coach, he was excluded from school events, threatened with
being arrested, charged with trespassing, and faced the
possibility of reporting to the principal each time he
attempted to enter school property. Id.
Plaintiff's claim is not a generalized First
Amendment claim in which he alleges, for example, that
Defendants' banning him from the property violated a
constitutional right to enter school property. E.g.,
Lovern v. Edwards, 190 F.3d 648, 655-56 (4th Cir.
1999) (rejecting the claim that school administrators must
provide parents with "boundless access" to school
property); Van Deelen v. Shawnee Mission Unified Sch.
Dist., 316 F.Supp.2d 1052, 1057 (D. Kan. 2004)
(indicating that parents do not have a constitutional right
to enter a school); see also Kugler v. Bd. of Educ. of
City of Chicago, No. 16 C 8305, 2017 WL 3581176, at *7
(N.D. Ill. Aug. 18, 2017) (plaintiff union representative
conceded he did not have a "substantive right" to
enter school board property "as a constitutional
matter"). Plaintiff's more limited claim contends
that in response to his expression of certain opinions,
Defendants denied him the valuable benefit of watching high
school sports activities, a benefit it offers to the public.
establish a First Amendment retaliation claim, a
non-prisoner, non-government employee, private citizen
plaintiff must show that (1) he or she engaged in
constitutionally protected speech; (2) the defendants'
actions "would chill a person of ordinary firmness from
continuing to engage in the protected activity"; and (3)
the protected activity was a substantial or motivating factor
in the defendants' conduct. E.g., Pinard v.
Clatskanie Sch. Dist. 6J, 467 F.3d 755, 770 (9th Cir.
2006); see also Pearson v. Cent. Curry Sch. Dist. No.
1, No. 6:15-CV-1353-AA, 2015 WL 5665457, at *3 (D. Or.
Sept. 22, 2015) (citing Pinard standard in case
where parents of student brought a First Amendment
retaliation claim against school district). Judge Acosta
recited the appropriate standards. F&R at
Constitutionally Protected Speech
Acosta began his discussion by analyzing the first element of
whether Plaintiff's speech was constitutionally
protected. Relying on a "forum analysis" and a
determination that schools are not public fora, Judge Acosta
wrote that "Defendants' actions in response to
Knotts's conduct need be only reasonable in light of the
purpose served by the school and viewpoint neutral to be
permissible." Id. at 13. Judge Acosta was
correct that Plaintiff did not establish Sandy High School as
a public forum and thus, it is either a limited public forum
or a nonpublic forum. But, he erred in applying a forum
analysis to a retaliation claim.
cases Judge Acosta cited address generalized First Amendment
claims, not retaliation claims. Grayned v. City of
Rockford considered a claim that city ordinances
restricting protests near a high school violated the First
Amendment. 408 U.S. 104 (1970). One ordinance regulated
picketing activity and the other regulated noise.
Id. at 107. After being convicted of violating both
ordinances during a demonstration at the high school, the
defendant/appellant challenged the ordinances'
constitutionality. Id. at 106. Relying on Police
Department of Chicago v. Mosley, 408 U.S. 92 (1970), a
decision the Court issued the same day, the Grayned
Court found that the picketing ordinance violated the Equal
Protection Clause. Id. at 107. The Court rejected
the defendant's argument that the noise regulation
ordinance was vague and overbroad and thus, it rejected his
claim that the ordinance was in violation of the First
Amendment. Id. This was not a First Amendment
retaliation claim. Instead, it was a facial challenge to city
in Flint v. Dennison, 488 F.3d 816 (9th Cir. 2007),
the next case cited by Judge Acosta, the Ninth Circuit
considered a facial attack to a school policy that restricted
student campaign expenditures. Other cases cited in the
F&R raise similar attacks on government policies. See
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988)
(addressing the ability of schools and educators to exercise
editorial control over the style and content of student
speech in school-sponsored expressive activities consistent
with the First Amendment; no retaliation claim involved);
Cornelius v. NAACP Legal Def. & Educ. Fund,
Inc., 473 U.S. 788 (1985) (challenge to executive order
governing the participation of agencies in federal Combined
Federal Campaign which specifically excluded legal defense
and political advocacy organizations; no retaliation claim
presented); PeTA, People for the Ethical Treatment of
Animals v. Rasmussen, 298 F.3d 1198 (10th Cir. 2002)
(challenge to constitutionality of a statute; no First
Amendment retaliation claim made); DiLoreto v. Downey
Unifed Sch. Dist. Bd. of Educ., 196 F.3d 958 (9th Cir.
1999) (challenge to school district practices regulating
advertisements on baseball field; no retaliation claim);
State v. Carr, 215 Or.App. 306, 314, 170 P.3d 563,
568 (2007) (challenge to state criminal trespass statute
after arrest on school property; court noted that
"[d]efendant does not argue that the principal's
restriction on his speech was unreasonable. Rather, he argues
that the principal had no lawful authority to restrict his
speech at all"; no retaliation claim brought).
recent Fourth Circuit case expressly stated that "the
public forum framework is not the appropriate frame of
analysis in the Free Speech retaliation context."
Buxton v. Kurtinitis, 862 F.3d 423, 428 (4th Cir.
2017) (noting that the plaintiff had "not pointed to a
single case in which a court applied-as he requests
here-forum analysis to a Free Speech retaliation
claim"). The Buxton court explained that
"public forum cases deal with the government restricting
access to a forum-i.e., preventing the speech from happening
altogether . . . [whereas] retaliation claims arise after the
speech has already happened, presumably after the speaker has
gained access to the forum in question." Id.
(citation omitted). "Excluding a speaker from
participating and retaliating against the speaker for his
speech are two different actions, to which we apply different
analytical frameworks." Id.
analysis would be appropriate if, for example, Plaintiff
challenged the District's policy of disallowing
"'[a]busive language or actions toward any players,
officials, coaches, or other fans' at athletic
events.'" See F&R at 2 (quoting from
pre-game announcement for Northwest Athletic Conference games
read routinely at Sandy athletic events). Because that is not
the nature of his claim, the forum analysis is not applicable
here. Plaintiff's claim is that separate from the
contours of the policy, Defendants retaliated against him
because of the particular statements he made and the opinions
he expressed. That is a different type of claim.
not to say that the significance of the school location is
immaterial. Although the language of the First Amendment may
appear to offer absolute protection, it has long been
recognized that "[t]here are certain well-defined and
narrowly limited classes of speech, the prevention and
punishment of which has never been thought to raise any
Constitutional problem." Chaplinsky v. New
Hampshire, 315 U.S. 568, 571-72 (1942) (listing such
categories as lewd, obscene, profane, libelous, and
"insulting or 'fighting' words-those which by
their very utterance inflict injury or tend to incite an
immediate breach of the peace."); see also United
States v. Alvarez, 567 U.S. 709, 717-18 (2012) (listing
the "historic and traditional categories [of expression]
long familiar to the bar for which content-based restrictions
on speech have been permitted" as: (1) advocacy
intended, and likely, to incite imminent lawless action, (2)
obscenity, (3) defamation, (4) "so-called 'fighting
words, '" (5) child pornography, (6) fraud, (7) true
threats, and (8) speech presenting some grave and imminent
threat the government has the power to prevent)); In re
Anonymous Online Speakers, 661 F.3d 1168, 1173 (9th Cir.
2011) (citing Chaplinsky for the proposition that
"some speech, such as fighting words and obscenity, is
not protected by the First Amendment at all.").
category omitted from the list recited in Alvarez,
but included in Chaplinsky, is profanity. Cases
indicate that whether profane speech is constitutionally
protected may in fact depend on its context and thus, it is
not categorically protected or categorically unprotected.
See Bonnell v. Lorenzo, 241 F.3d 800, 821 (6th Cir.
2001) ("it has long been held that despite the sanctity
of the First Amendment, speech that is vulgar or profane is
not entitled to absolute constitutional protection")
(citing FCC v. Pacifica Foundation, 438 U.S. 726,
747 (1978)). For example, profanity as political expression
when communicated in a courthouse is protected speech.
Cohen v. California, 403 U.S. 15 (1971) (state could
not, consistent with the First Amendment, punish the
defendant for wearing a jacket which bore the words
"Fuck the Draft" in a courthouse). And,
profanity-laced criticism of police officers is also
protected speech. E.g., United States v.
Poocha, 259 F.3d 1077 (9th Cir. 2001) (defendant's
utterance of "fuck you" or "that's
fucked" to National Park Service ranger was
contrast, profane and vulgar speech is not protected in the
school setting. Bethel Sch. Dist. v. Fraser, 478
U.S. 675 (1986). Judge Acosta recognized that under
Bethel, schools, in order to protect minors from
exposure to "vulgar and offensive spoken language,
" may restrict the use of lewd, vulgar, and profane
language. F&R at 14 (discussing Bethel, 478 U.S.
at 684 (citing Pacifica Foundation, 438 U.S. at
748-51 (government's prohibition of radio broadcast of
monologue which depicted sexual and excretory activities in a
patently offensive manner at a time when children were
undoubtedly in the audience was constitutionally
permissible))); see also B.H. ex rel. Hawk v. Easxton
Area Sch. Dist., 725 F.3d 293, 319 (3d Cir. 2013)
("Under [Bethel School District v.]
Fraser, a school may categorically restrict plainly
lewd, vulgar, or profane speech . . . regardless of whether
it can plausibly be interpreted as commenting on social or
Ninth Circuit has held that "school officials may
suppress speech that is vulgar, lewd, obscene, or plainly
offensive without a showing that such speech occurred during
a school-sponsored event." Chandler v. McMinnville
Sch. Dist., 978 F.2d 524, 529 (9th Cir. 1992) (holding
that discipline of students for wearing buttons referring to
"scabs" in support of striking teachers, was
inconsistent with students' First Amendment rights).
Additionally, speech which would "substantially disrupt,
or materially interfere with, school activities" is also
not entitled to constitutional protection. Id.
(citing Tinker v. Des Moines Indep. Comm. Sch.
Dist., 393 U.S. 503, 514 (1969) (wearing armband to
school in protest of the Vietnam War was protected speech
when it did not cause substantial disruption or interference
with school activities)).
most of these cases deal with student speech, the conclusions
reached are rooted in concerns regarding the challenged
expression's impact on minors and the disruption to or
interference with school activity. E.g.,
Tinker, 393 U.S. at 513-14 (discussing ability of
school to regulate student expression on school property in
the absence of material and substantial disruption to the
work and discipline of the school); Pacifica, 438
U.S. at 750-51 (noting that timing of the broadcast was when
children would be present, emphasizing that
"broadcasting is uniquely accessible to children, "
and referring to the "government's interest in the
well-being of its youth"); Bethel, 478 U.S.
683-84 (Court stressed the vulnerability of a "less
mature audience, " including some "only 14 years
old, " to offensive speech) (citing Ginsberg v. New
York, 390 U.S. 629 (Court upheld a state statute banning
the sale of sexually oriented material to minors, even though
the material in question was entitled to First Amendment
protection with respect to adults)). These concerns are
equally implicated by parent or third-party speech at school
activities. Thus, they appropriately govern the question of
whether Plaintiff's statements were constitutionally
protected. See Lovern, 190 F.3d at 655 ("School
officials . . . have the authority and responsibility for
assuring that parents and third parties conduct themselves
appropriately while on school property.").
three of Plaintiff's "statements" were made at
high school athletic events, which are school activities and
which Judge Acosta rightly observed "are commonly
attended by the families of the participants, including
younger siblings, as well as by other high school students
and the high school students participating in the
event." F&R at 16. I examine each of the ...